Selecting the property is pretty much a task which you can accomplish yourself although expert advice in respect of flood levels, pest and building inspections etc. makes the job easier and safer. Next comes the actual purchase and conveyancing, the transfer of the property into your own legal possession. We set out the options for handling it yourself or employing a solicitor.
The process of conveyancing is reasonably straight forward if you know what to do and many homeowners throughout the world, and certainly Australia, have accomplished the legal transfer of property without any problem.
In Australia, the conveyancing procedure in return for payment is restricted to solicitors and, in some states, conveyancers are also licensed to operate. It is deemed illegal for a person not registered for property conveyancing to provide paid assistance in conveyancing. However, it is legal and, perhaps encouraged by some state governments, that the intended purchaser or vendor handle their own conveyancing. Some state government departments make forms available on their websites specifically for the public to access and use. It is well accepted by the government that kits are written, published and sold which set out the complete process. However, if a kit publisher then physically completes a document he could be in big trouble. Similarly a kit publisher cannot untruthfully claim to be a solicitor, nor can he provide legal advice but he can explain his kit.
In a nutshell a person can use a kit to handle a conveyancing matter quite legally, and many do. Utilising a kit can save you many hundreds of dollars and this economy has tempted many solicitors to advertise under the heading of ‘KITS’.
Solicitors in Australia are governed by the Law Society of each state. As each state has different legislation over most matters solicitors tend to act only within their state of establishment. Conveyancing is state legislated and therefore it is not unusual for solicitors to pass matters from one office to another. If a person living in New South Wales consults a local solicitor to act on his behalf in purchasing a property in Victoria, then it is likely that the first solicitor will engage a solicitor in Victoria to handle that end of the business. If the first office in New South Wales has its own branch office in Victoria this can still cause delays and almost certainly is going to result in higher fees.
Even within the same state the huge size and distances can create a problem when it comes to the final settlement with funds being exchanged for title deed.
Conveyancing is a basic, every-day, function that any ‘one-man office’ can handle. Selecting a solicitor in the same town as the solicitor being used by the vendor is located can be worthwhile. The dealings with your solicitor can be conducted by mail, email or phone but the final ‘face-to-face’ exchange between your solicitor and the vendor’s is made simpler. Your finance company usually makes its own arrangements for the settlement through its agents but you should keep them appraised of the situation.
Smaller legal offices are likely to offer a better financial deal than a large office which has far greater overheads. The costs charged will vary from state to state and inquiries should be made and firm quotes obtained. Request a firm quotation covering the complete matter because the ‘petties’ or ‘incidentals’ which are charged on top of the solicitor’s costs can mount up very quickly. Ask that all actions to be taken for a satisfactory completion are listed. Any reluctance to do this should be noted.
As of 2013 the charge by a solicitor for sale of a property could be anywhere between AU$400 and AU$700 whilst the purchase of a house or vacant land could be between AU$600 - AU$1000. These are estimates and the figures may be slightly lower or considerable higher.
Solicitors carry insurance so that if an error of their making occurs you should be covered. There may be difficulty agreeing where the error occurred, though.
In Australia a solicitor is not permitted to act for both the seller and the buyer. He can act for both husband and wife if the purchase is in both their names. A tip here is that if the property is purchased by a husband and wife as ‘joint tenants’ it means that if one party dies the survivor automatically and immediately becomes owner of the whole property. There is no need to wait for probate.
An attempt to convert to this ownership status later will be treated by the government as a completely fresh dealing with resultant costs.
It can be unwise to accept an offer from the vendor (and this usually applies to developers) that stipulates free-from-cost legals are available if you use a solicitor nominated by the vendor.
Often know as DIY (Do It Yourself) Conveyancing Kits, this method of conveyancing is becoming more and more popular.
A number of years ago when these first came on the market the task of conveyancing was very much more difficult and time consuming than it is now. Completing the forms was difficult and conducting business with a number of governmental departments could take days. Visiting the nearest city, queuing at counters, shifting through papers was horrific. Now, with mobile phones, email, texting, websites, and the government’s assistance, it really is easy.
As with everything, there are good kits and some not so good kits. It is not enough that the author or publisher knows the processes, they also need to be able to clearly explain these processes to the user - not only what to do but also why you do it!
A good kit will contain the following:
All steps from the contract to the final registration in your name should be covered and the kits must be up to date. In addition, freephone support should be available, though with a really good kit it is unlikely to be necessary. Still, it is nice to know that it is available. An important point here is that you will probably be working on your conveyancing at night or on week-ends. That is when you need somebody to hold your hand and reassure you.
Ensure that if you use a kit it is completely relevant to the state you require.
Many people buy a kit so that they are aware of the processes that occur even when they intend to employ a solicitor. It enables you to plan in advance the steps, searches and actions that you will request the solicitor to take. It can mean a lower legal bill because it should be possible to state exactly what actions you want the solicitor to take and obtain a firm quotation beforehand.
Being new to Australia should not necessarily be considered a drawback when it comes to handling your own conveyancing. Most Australians know little about the procedures before they successfully handle their own work.
Article written by: Fred Sparrow - Legal Kit Specialists Conveyancing Kits