Conveyancing

“ Australian Government Commercial Building Disclosure Australian Taxation Office ”

“ Sale of Real Property (WA) Leases (WA) ”

“ The agent or the client has advised you that a purchase has been negotiated and that details will follow. As the majority of the purchases handled by practitioners are of residential premises the contract will have been prepared before the property was listed for sale and will be received fairly ... ”

“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”

“ Read our paper A brief explanation of the transition to E-conveyancing which includes information on how to get connected and the full timeline for implementation. Eligible stand-alone transfers, caveats and withdrawal of caveats must be lodged electronically. ”

“ The central issues as to the identity of the buyer are those relating to tax, tenancy and asset protection. See the dedicated Business structures – Comparative table commentary for more information. ”

“ Identification Those who cannot imagine a mistake in this area easily overlook the need for identification of the property. It seems inconceivable that a contract can relate to a property other than the one inspected by the buyer, but it happens. ”

“ It must be unambiguous whether or not GST is payable by the buyer and whether or not it is included in the price. If substantial inclusions are involved then an apportionment of the price may be necessary for tax purposes. Transfer duty is payable on the price inclusive of GST whichever way it is ... ”

“ The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 provide that when a property is sold with a market value of $750,000 or more the buyer is required to withhold 12.5% of the purchase price. The sum withheld must be remitted to the Australian ... ”

“ The contract between a seller and buyer is the primary document setting out the obligations of the parties. It is an executory document, meaning it establishes the rights and obligations of the parties to be performed over a period of time, culminating with payment by the buyer of the purchase ... ”

“ This is often an area which leads to dispute. Care should be taken to ensure that all inclusions are stated and any items that a buyer might consider to be included but aren’t shown as exclusions. Typically disputes arise over such items as birdbaths, dishwashers, large entrance pots, cubby houses ... ”

“ Contracts for sale of land Unlike in other States, there are no mandatory disclosure requirements of a seller, other than strata or survey-strata title, and so a buyer must contract the relevant authorities to check if there are any restrictions on the title and ensure compliance on building ... ”

“ At common law a builder who constructs a building will have contractual and tortious duties. The contractual duties will be owed to a party with whom the builder enters into a contract in relation to the building (the owner of the land) and tortious duties will be owed to those who are reasonably ... ”

“ The Offer and Acceptance and General Conditions contract is designed to obviate the need for any alterations and additions to the contract. However, care should be taken to consider additional or special conditions that may be of use given the specific circumstances of the property. ”

“ Waterfront properties and foreshore maritime structures There is no automatic right to use existing foreshore maritime structures, such as jetties, boat ramps and boat sheds enjoyed by a waterfront property. When acting for sellers or buyers of waterfront property, you must check if there are ... ”

“ Option or right of first refusal An owner of land may grant an option to purchase, a right of first refusal or a right of pre-emption. A right of first refusal and a right of pre-emption differ from an option in the strict sense. These rights are principally contractual and frequently appear in ... ”

“ Enquiries before exchange Despite the apparent protection of the regime of statutory warranties there is little comfort to be found in rescission or litigation. Thorough inspection before exchange by the appropriate experts and by the buyer is the best course of action to take to avoid subsequent ... ”

“ There is an extensive Library of Special Conditions included in the guide to deal with the many issues that might be relevant. Special conditions need careful consideration as often they go beyond a balanced protection for both parties. It is no longer uncommon to find significant penalties for ... ”

“ Electronic signatures The common law recognises electronic signatures, but the Electronic Transactions Act 1999 (Cth) (as enacted throughout Australia) puts it beyond doubt that electronic signatures are equivalent to traditional hardcopy signatures. More specifically, the Act provides that a legal ... ”

“ Payment of the deposit The deposit is usually paid when the buyer signs the contract, but the parties may agree to other arrangements. The deposit is ideally 10% of the purchase price, but may be such other amount as is agreed by the parties. The deposit is payable upon the making of the contract ... ”

“ Major banks have gratefully accepted the risk of asking for very little other than insurance and the registrable documentation to transfer the title to the borrower. On the other hand, smaller lenders may ask for all available certificates, some of which may be irrelevant for the property. It is ... ”

“ Buyer’s caveat after exchange As a result of the case Black v Garnock some lawyers have adopted the practice of registering a caveat after exchange and before settlement. ”

“ It is standard procedure for the seller’s practitioner to write to mortgagees to arrange discharge of their mortgages which they are obliged to do as they cannot clog the equity of redemption. No such obligation attaches to a caveator and therefore prudently before exchange, practitioners should ... ”

“ These enquiries are usually made to negate any adverse affectation by proposals of public authorities. Certificates from the council, the water authority and the Department of Finance reveal the rates and taxes applicable to the property facilitating adjustments to be made for settlement. Commonly, ... ”

“ The common law held that risk passed upon sale and that while the seller was in the position of a trustee for the buyer during the contract period, the risk of any deterioration to the property during that period fell upon the buyer. Clause 8 of the General Conditions reverses that common law ... ”

“ The Duties Act 2008 creates and charges a number of duties. The Office of State Revenue (OSR) administers the Act. Duty is payable on a writing evidencing the dutiable transaction. If no writing exists then the Act gives the commissioner the power to require the writing and levy the duty. OSR may ... ”

“ An error or misdescription occurs if the buyer is not getting substantially what is agreed to be sold. Clause 15 of the General Conditions applies if there is an error or misdescription made about the property contracted to be sold, relating to: a physical structure or feature of the property; ”

“ Notices generally Ownership of land requires the owner to have a relationship with many other people and organisations in relation to the land, for instance neighbours, local councils and other authorities. These relationships may result in these third parties taking a particular interest in the ... ”

“ Adjustments is the exercise undertaken towards the end of a conveyancing transaction and put into effect at settlement, which is the time when the buyer pays the balance of purchase price to the seller and becomes entitled to the property. Ownership of property involves paying outgoings, such as ... ”

“ To some extent a conveyancing transaction culminates in settlement or completion. This is the event that has been eagerly awaited by seller and buyer and while there are still some matters to be attended to after settlement, this is the important event when the buyer pays the balance due under the ... ”

“ Read our paper A brief explanation of the transition to E-conveyancing which includes information on how to get connected and the full timeline for implementation. Eligible stand-alone transfers, caveats and withdrawal of caveats must be lodged electronically. ”

“ Adjustments is the exercise undertaken towards the end of a conveyancing transaction and put into effect at settlement, which is the time when the buyer pays the balance of purchase price to the seller and becomes entitled to the property. Ownership of property involves paying outgoings, such as ... ”

“ To some extent a conveyancing transaction culminates in settlement or completion. This is the event that has been eagerly awaited by seller and buyer and while there are still some matters to be attended to after settlement, this is the important event when the buyer pays the balance due under the ... ”

“ The common law doctrine of merger grew out of the principle that when a lesser estate was vested in the same person as a greater estate, the lesser estate merged into the greater estate and was extinguished. A common example of this principle is where the dominant and servient tenements in an ... ”

“ In reporting and accounting to the client it is often difficult for them to understand how rate adjustments work. The precedent Final Letter goes a long way to explaining the adjustments though we recommend talking through the settlement statement with the client when it is being reviewed. When ... ”