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Property Law & Conveyancing FAQs

 Our experienced team will guide you through your Property Law & Conveyancing matter

What is a cooling-off period?

When purchasing residential property in NSW, purchasers and vendors can elect to exchange a contract with a 5-business day cooling-off period before the contract becomes binding which allows the purchaser to change their mind and get out of the contract.

The period starts as soon as contracts are exchanged and ends at 5pm on the last business day of the cooling-off period. Changes to the contract may be made during this period if they are agreed by both parties. If you use your cooling off rights and withdraw from the contract during the cooling-off period, you are liable to pay the vendor 0.25% of the purchase price.

The Cooling-off period is used to “get all of your ducks in a row” such as:

  • Obtain advice on the contract and negotiate any amendments (if required);
  • Obtain unconditional loan approval (if borrowing funds for purchase) or otherwise ensure funds will be available on settlement (if cash purchaser);
  • Organise Pest & Building Inspections, inspect Council Records and any other due diligence (if required); and
  • Organise payment of deposit.

Important considerations:

  • Most vendors of residential property want the cooling-off period waived so that the contract becomes immediately binding on the purchaser and vendor;
  • Prior to the expiration of the cooling-off period OR cooling-off period being waived, it is important to discuss the contract with your representative to ensure that you understand all contents of the contract as well as your obligations. If the cooling-off period is waived you should have completed all the “ducks in a row” steps listed above;
  • Longer cooling-off periods (such as 10 business days) may be negotiated with the Agent if you think you will need more time to organise the initial process;
  • Once the contracts are exchanged under the cooling off-period, only the purchaser can withdraw from the contract. Therefore, if you are selling your property, it is important to speak to your legal representative prior to signing any contract as there may be certain considerations that need to be reflected in the special conditions of the contract.

What is a 66W Certificate?

A section 66w Certificate is a certificate signed by a Conveyancer or Solicitor that is acting for the purchaser, which has the effect of waiving the purchaser’s cooling-off period. The requirements of the certificate are set out in section 66W of the Conveyancing Act 1919 – hence the name. The waiving of this cooling-off period ultimately makes the contract immediately binding on the purchaser and vendor.

Most sales of residential property in the Southern Highlands will require the signing of a section 66W certificate before exchange occurs.

What is verification of identity and what documents do I need to provide?

With any property transaction, it is a legal requirement under the Electronic Conveyancing Model Participation Rules that all parties involved are formally identified, regardless of the nature of the transaction.

The requirements of the identification are as follows:

Category 1 is the preferred category.
If the requirements of category 1 cannot be met, then consider the requirements of category 2, and so forth.

Category 1:
Australian or foreign passport OR Australian Evidence of Immigration Status ImmiCard or Australian Migration Status ImmiCard

AND Australian driver’s licence OR Photo card

AND if name has changed Marriage certificate OR Change of name certificate.

Category 2:
Australian or foreign passport OR Australian Evidence of Immigration Status ImmiCard or Australian Migration status ImmiCard

AND Full birth certificate OR Citizenship certificate OR Descent certificate

AND Medicare card OR Centrelink card OR Dept. Veterans’ Affairs card

AND if name has changed Marriage certificate OR Change of name certificate

Category 3:
Australian driver’s licence OR Photo card

AND Full birth certificate OR Citizenship certificate OR Descent certificate

AND Medicare card OR Centrelink card OR Dept. Veterans’ Affairs card

ANDif name has changed Marriage certificate OR Change of name certificate

If you do not meet the requirements of the above three categories of identification, contact our office and we will discuss alternative arrangements. However, under current legislation, the rules are strict on what documents are required.

I want to sell my property, what is the first step?

Get in contact with us!

If you are listing your property on the market, our team of Licenced Conveyancers and Solicitors can help you with the first step – getting a Contract for the Sale of Land drawn up.

Firstly, we will need to take full sale instructions from you for the preparation of the contract. The contract will also include searches and certificates that are required by law to be annexed to the contract and will vary depending on the type of property you are selling.

Once we have received all the necessary certificates and searches, we will submit a copy of the contract to your elected Real Estate Agent (if you are using one) so the marketing of your property can commence. Your agent will require this contract before you can legally market your property for sale.

What do I have to disclose to a purchaser of my property?

Vendors have obligations to disclose certain matters affecting the property being sold. In particular, a vendor must disclose to the buyer:

  • Any encumbrances affecting the property & which will remain in existence after settlement.

Encumbrances are matters which burden and impede the property and/or the title to the land.  For example:

    • Easements that burden the land (granting someone other than the registered owner/s a right to use and/or benefit from the land);
    • Easements in favour of a Local Government or other Authorities ;
    • Unregistered encumbrances such as drainage, stormwater and/or sewerage lines running through the land;
  • Whether the property being sold is subject to any tenancies or lease arrangements that will continue after settlement;
  • Whether the property being sold is the subject of any current or threatened claims or disputes (including court proceedings and/or neighbourhood, fencing or tree disputes, etc).
  • Whether all improvements to the property have been approved by Council, usually purchasers will require a copy of the development approval, or the vendors authority for them to investigate the property’s file with Local Council;
  • If your property has a pool you will be required to provide evidence the pool has approval from Council, has a recent compliance certificate and is registered.

My offer was accepted on a property, what’s next?

Firstly, congratulations! You have taken the first step to owning the property.

You will now need to appoint a Licenced Conveyancer or Solicitor to act on your behalf. Contact our office and we will be able to assist in directing your enquiry to the appropriate person in our office.

You will then need to give our contact details to the Real Estate Agent. The agent will then send us what’s called a ‘sales advice’. This document will provide us with the information we require to get your matter underway, such as the address of the property, vendor details, and purchase price. The vendor’s Conveyancer/Solicitor will also be sent the sales advice and they will issue us with the contract for review, advice, and signing.

Depending on the type of property you are intending to purchase, it is often prudent to order certain reports relating to that property prior to exchange to ensure that there are no problems of concern with the property. The two most common reports are a building and pest report and strata report. We will advise you on which reports are appropriate once we have had the chance to discuss the property with you and review the contract.

When should I order a pest and building inspection?

Most properties are sold on the basis of caveat emptor or buyer beware which is why it is highly recommended to order a pest and building inspection (if applicable) prior to the exchange of contracts or prior to the cooling-off period expiring. This will assist in identifying any problems or defects with the property before the contract becomes binding as there may be significant costs and problems associated with rectifying them.

What is PEXA?

PEXA (Property Exchange Australia) is Australia’s online property exchange network. It is used by members – such as lawyers, conveyancers, and financial institutions to lodge documents with Land Registries and complete financial settlements electronically.

At settlement, all parties to the transaction, through their legal representatives, exchange title documents for the balance of the purchase price. PEXA is now a mandatory platform for most property settlements and lodgements in Australia.

What is an electronic Certificates of Title and will I ever get a paper CT?

From 11 October 2021, NSW Land Registry Services will no longer issue paper Certificates of Title after you have completed a purchase of property or land with an unencumbered title.

From this date, all paper Titles will no longer be required when conducting any land transactions or dealings. This will also mean that all land transactions and dealings will need to be completed and lodged via electronic conveyancing.

All current property owners need not fret as legal ownership details are recorded on a register known as the ‘Torrens Title Register’.

The NSW Government hopes by phasing out paper Titles it will create a simpler and safer process when conducting any land transactions and property dealings.

The notable exemption of the new reforms is Water Access Licenses. These will continue for the time being to be in paper and dealt with directly at NSW Land Registry Services.

For more information please refer to the following link or contact our office: https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Contact Us

Office Address: 87 Main Street, Mittagong, NSW 2575

PO BOX: PO Box 150, Mittagong, NSW 2575

Phone: (02) 4872 4004

Fax: (02) 4872 4216

 

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