Winthrop Mason | Property
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Property

Buying residential property

 

Buying a home or investment property takes a lot more time – and carries a lot more risk – than selling one.  This is primarily because the seller has an informational advantage over the buyer from the very beginning: he or she already knows everything about their property (good and bad).

 

As a buyer, therefore, you will need to take extra care both during the negotiation process and during the pre-settlement process as mistakes can prove to be very costly, or even disastrous.  Never do your own conveyancing unless you know exactly what you are doing.  Conveyancing lawyers make the process look “easy”, but only because they have developed robust systems and processes behind-the-scenes to ensure that everything becomes hassle-free for their clients – well, at least most of the time!

Some of the key considerations for a buyer are:

 

  • Did the seller and their real estate agent provide you with all the legally required disclosures?
  • Is the seller entitled to sell the property?  For example, if the owner is actually bankrupt, then the right to sell actually rests with the liquidator or trustee-in-bankruptcy.
  • Is the contract legally binding? For example, if the seller is a company, there must be signatures from at least two directors, or a director and company secretary (unless it is a sole directorship).
  • Are you buying the correct property?  (This sounds silly but mistakes often happen, particularly in the case of units where a street address is an insufficient identifier).
  • Are all the fixtures and other inclusions that you think are included really included?
  • Is there any charge registered against the property that will severely interfere with your ownership rights (such as mortgages, easements, caveats, leases, etc.)?
  • Is there any money owing on the property (eg. land tax, council rates, water charges, etc.)?
  • Are there any zoning and planning regulations, or other restrictions, affecting the property?
  • Do you need finance to complete the sale?  If so, you should insert “Buyer’s sole discretion” in the finance section of the contract, and not “Sufficient to complete” as agents like to put in.
  • Is the property structurally sound?  (Your contract should be made subject to a satisfactory building inspection.)
  • Is the property free from termites and other destructive pests? (Your contract should be made subject to a satisfactory pest inspection.)
  • Is the property subject to a QCAT tree order, pool fencing order or other dispute?

 

Note that this is not intended to be an exhaustive list.  There may be many other important considerations in a particular case, such as for a unit or apartment.

 

You should be aware that the property is at your risk as, the buyer, from 5pm on the first business day after the contract date – so take out building insurance (known as a “cover note”) on the property as quickly as possible.

 

If you’re selling another property at the same time, you really should avoid making the contract subject to the sale of your property.  You are really just setting yourself up for a lot of stress because this doubles the level of complexity in the entire transaction.  It is better to sell first – and get that out of the way – before you buy another property.

 

We would generally recommend inserting a “due diligence” clause into each contract.  This will serve as your potential “get out of jail” card if you need to back out of the contract for reasons other than finance, building or pest.  There are also a many other measures you can take to protect your interests, such as through the use of relevant special conditions.

 

Finally, and despite what real estate agents tell you, you should never sign a contract unless a lawyer has reviewed it on your behalf.  There are many subtle risk areas in a contract, and real estate agents won’t necessarily know – or care, as they do not act for you – about them.

 

Winthrop Mason Lawyers can assist you by:

 

  • Reviewing your contract of sale for any potential legal risk areas;
  • Advising you on your rights and obligations, and any necessary steps to protect your interests;
  • Negotiating the terms of the contract, including imposing special conditions, on your behalf;
  • Conducting all the usual searches, and additional searches, relating to the property;
  • Drafting the Form 1 and Form 24 transfer documents, and any other necessary documents;
  • Liaising with your lender to ensure that all the necessary paperwork is prepared and signed;
  • Advising you in relation to the terms and conditions of your loan agreement;
  • Liaising with the seller or their solicitors during the conveyancing process;
  • Drafting or perusing the final settlement statement to be relied upon at settlement;
  • Attending to settlement on your behalf to complete the transaction;
  • Ensuring that the Title Registry records are properly changed post-settlement.

 

We offer a fixed fee pricing on conveyancing so you will know exactly how much the whole transaction will cost from the very beginning.  For a no-obligation initial consultation, go ahead and give us a call.

Relevant Videos

Selling residential property

 

Selling a home or investment property may be a little easier than buying one, but it is still not without its risks for the seller.  Conveyancing is a deceptively complex area, and so you can end up losing a lot of time, money, or both through mistakes or inattention.

 

You will need to take care both during the negotiation process and during the pre-settlement.  Never try to do your own conveyancing unless you know exactly what you are doing.  Conveyancing lawyers make the process look “easy”, but only because they have developed robust systems and processes behind-the-scenes to ensure that everything becomes hassle-free for their clients – well, at least most of the time!

 

Some of the key considerations for a seller are:

 

  • Did you and your real estate agent provide the buyer with all the legally required disclosures (such as under the Property Agents and Motor Dealers Act 2000, Body Corporate and Community Management Act 1997, Environmental Protection Act 1994, Queensland Heritage Act 1992, Fire and Rescue Services Act, Electrical Safety Regulation 2013, Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and Land Sales Act 1984 as relevant)?
  • Did you ensure that you or the agent did not make any false or misleading representations in relation to the property?  Note that, in some cases, mere silence can be found to be misleading.
  • Are all the details shown in the contract of sale correct?  If there are material errors in the contract, this will entitle the buyer to terminate or sue you for any losses they suffer;
  • Is the correct property being sold?  (This sounds silly but mistakes often happen, particularly in the case of units where a street address is an insufficient identifier).
  • Is the buyer entitled to buy the property?  The buyer will not have capacity to buy if they are a minor, is considered of unsound mind at law, or is an undischarged bankrupt.
  • Is the contract legally binding? For example, if the buyer is a company, there must be signatures from at least two directors, or a director and company secretary (unless it is a sole directorship).
  • Is the deposit 10% or less?  If the deposit collected is greater than 10%, the buyer will vested with an immediate legal interest in the property, so this should be avoided at all cost;
  • Are all the exclusions that you think are excluded really excluded?
  • Is there any charge registered against the property that you will need to remove on or before settlement date (such as mortgages, easements, caveats, leases, etc.)?
  • Do you need a lender’s consent to complete the sale? Generally, you will need it if there is an outstanding home loan against the property.

 

Note that this is not intended to be an exhaustive list.  There may be many other important considerations in a particular case, such as for a unit or apartment.

 

If you’re buying another property at the same time, you really should avoid linking the two contracts by making the other contract subject to the settlement of the property you are currently selling.  You are really just setting yourself up for a lot of stress because this doubles the level of complexity in the transaction.  It is better to sell first – and get that out of the way – before you buy another property.

 

Finally, and despite what real estate agents tell you, you should never sign a contract unless a lawyer has reviewed it on your behalf.  There are many subtle risk areas in a contract, and real estate agents won’t necessarily know – or care, as they do not act for you – about them.

 

Winthrop Mason Lawyers can assist you by:

 

  • Reviewing your contract of sale for any potential legal risk areas;
  • Advising you on your rights and obligations, and any necessary steps to protect your interests;
  • Negotiating the terms of the contract, including imposing special conditions, on your behalf;
  • Conducting searches in relation to the buyer (eg. capacity to contract) and the property;
  • Checking the Form 1 and Form 24 transfer documents, and any other necessary documents;
  • Ensuring that any existing mortgages and other charges are removed on or before settlement;
  • Ensuring that all the relevant paperwork has been validly executed by the relevant parties;
  • Liaising with your lender to ensure that all the necessary paperwork is prepared and signed;
  • Liaising with the buyer or their solicitors during the conveyancing process;
  • Drafting or perusing the final settlement statement to be relied upon at settlement;
  • Attending to settlement on your behalf to complete the transaction.

 

We offer a fixed fee pricing on conveyancing so you will know exactly how much the whole transaction will cost from the very beginning.  For a no-obligation initial consultation, go ahead and give us a call.

Buying commercial property

 

Buying commercial property is similar to buying residential property, with a few additional considerations.  There are also additional risks involved given the business-like nature of the asset being purchased.

 

As a buyer, therefore, you will need to take extra care both during the negotiation process and during the pre-settlement process as mistakes can prove to be very costly, or even disastrous.  Never do your own conveyancing unless you know exactly what you are doing.

 

Some of the key considerations for a buyer are:

 

  • Did the seller and their real estate agent provide you with appropriate disclosures?
  • Is the seller entitled to sell the property?  For example, if the owner is actually bankrupt, then the right to sell actually rests with the liquidator or trustee-in-bankruptcy.
  • Is the contract legally binding? For example, if the seller is a company, there must be signatures from at least two directors, or a director and company secretary (unless it is a sole directorship).
  • Are you buying the correct property?  (This sounds silly but mistakes often happen, particularly in the case of units where a street address is an insufficient identifier).
  • Are all the fixtures and other inclusions that you think are included really included?
  • Is there any charge registered against the property that will severely interfere with your ownership rights (such as mortgages, easements, caveats, leases, etc.)?
  • Is there any money owing on the property (eg. land tax, council rates, water charges, etc.)?
  • Are there any zoning and planning regulations, or other restrictions, affecting the property?
  • Do you need finance to complete the sale?  If so, you should insert “Buyer’s sole discretion” in the finance section of the contract, and not “Sufficient to complete” as agents like to put in.
  • Is the property structurally sound?  (Your contract should be made subject to a satisfactory building inspection.)

 

Note that this is not intended to be an exhaustive list.  There may be many other important considerations in a particular case, such as for a unit or apartment.

 

We would generally recommend inserting a “due diligence” clause into each contract.  This will serve as your potential “get out of jail” card if you need to back out of the contract for reasons other than finance.  There are also a many other measures you can take to protect your interests, such as through the use of relevant special conditions.

 

Finally, and despite what real estate agents tell you, you should never sign a contract unless a lawyer has reviewed it on your behalf.  There are many subtle risk areas in a contract, and real estate agents won’t necessarily know – or care, as they do not act for you – about them.

 

Winthrop Mason Lawyers can assist you by:

 

  • Reviewing your contract of sale for any potential legal risk areas;
  • Advising you on your rights and obligations, and any necessary steps to protect your interests;
  • Negotiating the terms of the contract, including imposing special conditions, on your behalf;
  • Conducting all the usual searches, and additional searches, relating to the property;
  • Drafting the Form 1 and Form 24 transfer documents, and any other necessary documents;
  • Liaising with your lender to ensure that all the necessary paperwork is prepared and signed;
  • Advising you in relation to the terms and conditions of your loan agreement;
  • Liaising with the seller or their solicitors during the conveyancing process;
  • Drafting or perusing the final settlement statement to be relied upon at settlement;
  • Attending to settlement on your behalf to complete the transaction;
  • Ensuring that the Title Registry records are properly changed post-settlement.

 

We offer a fixed fee pricing on conveyancing so you will know exactly how much the whole transaction will cost from the very beginning.  For a no-obligation initial consultation, go ahead and give us a call.

Selling commercial property

 

Selling commercial property is similar to selling residential property, with a few added considerations.  For instance, the transactional costs involved are greater, so it is important to get all the steps right the first time around.

 

You will need to take care both during the negotiation process and during the pre-settlement.  Never try to do your own conveyancing unless you know exactly what you are doing.

 

Some of the key considerations for a seller are:

 

  • Did you and your real estate agent make property disclosure to the guyer?
  • Did you ensure that you or the agent did not make any false or misleading representations in relation to the property?  Note that, in some cases, mere silence can be found to be misleading.
  • Are all the details shown in the contract of sale correct?  If there are material errors in the contract, this will entitle the buyer to terminate or sue you for any losses they suffer;
  • Is the correct property being sold?  (This sounds silly but mistakes often happen, particularly in the case of units where a street address is an insufficient identifier).
  • Is the buyer entitled to buy the property?  The buyer will not have capacity to buy if they are a minor, is considered of unsound mind at law, or is an undischarged bankrupt.
  • Is the contract legally binding? For example, if the buyer is a company, there must be signatures from at least two directors, or a director and company secretary (unless it is a sole directorship).
  • Is the deposit 10% or less?  If the deposit collected is greater than 10%, the buyer will vested with an immediate legal interest in the property, so this should be avoided at all cost;
  • Are all the exclusions that you think are excluded really excluded?
  • Is there any charge registered against the property that you will need to remove on or before settlement date (such as mortgages, easements, caveats, leases, etc.)?
  • Do you need a lender’s consent to complete the sale? Generally, you will need it if there is an outstanding home loan against the property.

 

Note that this is not intended to be an exhaustive list.  There may be many other important considerations in a particular case, such as for a unit or apartment.

 

Finally, and despite what real estate agents tell you, you should never sign a contract unless a lawyer has reviewed it on your behalf.  There are many subtle risk areas in a contract, and real estate agents won’t necessarily know – or care, as they do not act for you – about them.

 

Winthrop Mason Lawyers can assist you by:

 

  • Reviewing your contract of sale for any potential legal risk areas;
  • Advising you on your rights and obligations, and any necessary steps to protect your interests;
  • Negotiating the terms of the contract, including imposing special conditions, on your behalf;
  • Conducting searches in relation to the buyer (eg. capacity to contract) and the property;
  • Checking the Form 1 and Form 24 transfer documents, and any other necessary documents;
  • Ensuring that any existing mortgages and other charges are removed on or before settlement;
  • Ensuring that all the relevant paperwork has been validly executed by the relevant parties;
  • Liaising with your lender to ensure that all the necessary paperwork is prepared and signed;
  • Liaising with the buyer or their solicitors during the conveyancing process;
  • Drafting or perusing the final settlement statement to be relied upon at settlement;
  • Attending to settlement on your behalf to complete the transaction.

 

We offer a fixed fee pricing on conveyancing so you will know exactly how much the whole transaction will cost from the very beginning.  For a no-obligation initial consultation, go ahead and give us a call.

Caveats

 

[Content under review]

 

Retail shop leasing for landlords

 

[Content under review]

 

Retail shop leasing for tenants

 

[Content under review]

 

 

Commercial leasing for landlords

 

[Content under review]

 

Commercial leasing for tenants

 

[Content under review]

 

Joint ventures 

 

[Content under review]

Property development

 

[Content under review]

 

Compulsory acquisition

 

[Content under review]