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THE PIT FALLS OF CONVEYANCING

 Buying and selling a home is often one of the most significant transactions in your life. During the course of buying or selling your home you may experience a variety of mixed emotions and there are certain aspects of the conveyancing process that you should be aware of to ensure that the transaction runs as smoothly as possible.


Some of the common areas where things can go wrong are:

(a) Not Paying the Deposit on Time

If you don’t pay the initial or balance deposit on time under most contracts the Seller would be allowed to:

(i) terminate the Contract;
(ii) keep the deposit already paid (if any);
(iii) claim the unpaid deposit amount from you as a debt; and
(iv) sue you for breach of Contract, which could include a claim for the shortfall if the Seller can not sell the property for the same price that you were going to pay.

(b) Not being able to settle on the agreed date

The day that you pay the balance of the Purchase Price to the Seller, you become the legal owner of the property and you receive the keys to your new home. This is known as the Settlement Date, and it is an important date to mark on your calendar.

Prior to the signing of a Contract, you should determine the best settlement date that works for you and your financier (if applicable). If you are unable to settle by the due date under the Contract and the Seller does not agree to extend, the Seller could elect to exercise the rights outlined in (a) above.

It is important to note that the Seller is under no obligation whatsoever to agree to an extension of this or any date under the Contract.

(c) Finance

If you require the assistance of your bank to partially fund your purchase, the Contract should be made subject to you receiving a satisfactory Finance Approval, regardless of whether you have a “pre-approval” or are confident with your ability to obtain the required loan from the bank. If you do not make the Contract subject to finance and you are unable to access the funds required complete the purchase, the rights of the Seller (as outlined in (a) above) would apply.

If the Contract is subject to finance approval and you fail to notify the Seller of such approval by the due date, the Seller will be entitled to terminate the Contract up until the point that you satisfy (or waive) the condition. The deposit would be refunded to you in this circumstance.

If you do terminate under finance approval, you must be able to show that you made a genuine attempt to obtain finance and a letter from your bank denying the application is always handy to have available.

(d) Building and Pest

Regardless of the age of the property, you should always arrange for a Building & Pest inspection to be undertaken by a qualified professional.

If you are not satisfied with the report or the Seller doesn’t agree to fix what you want, you can terminate the Contract, provided you act reasonably in this regard. For example, the Seller could argue that you are not acting reasonably if you terminate for something that is only aesthetic and not structural or major in nature. If you were to terminate under this condition, the deposit would be refunded to you.

(e) Insurance

In Queensland, the Contract provides that the risk of the property passes to the Buyer when the contract is signed by both parties (and not on settlement as you would naturally think). In NSW, the risk passes on settlement. You should ensure that adequate insurance is in place should an insurable event occur at the Property following entry into the Contract (eg. flood, fire or total destruction).

(f) Deemed Satisfied Clauses

You should carefully review any amendments made to the standard conditions or deadlines for due dates under the Contract. Contracts often come across our desk where a condition will be ‘deemed satisfied’ on an agreed date unless the buyer has advised otherwise. While this is great for a Seller, it could be a nightmare for a buyer as a condition that is crucial to your purchase, (e.g. finance approval) could be automatically satisfied if you miss the due date, notwithstanding you haven’t received the OK from your bank.

(g) Disclosure Statements

If you are purchasing a unit, you should review the information contained in the Disclosure Statement prior to signing the contract so that you are aware of any amounts payable to the Body Corporate (eg. Administrative and Sinking Fund levies).

Lessons:

Our experience is that one out of every 3 sales has some sort of problems.

Engage a lawyer prior to signing the contract and be prepared to pay a reasonable fee. People think conveyancing is simple and often treat it as a commodity. You will get what you pay for. The cut price conveyancing companies work on the basis of hooking you in with a cheap quote and then catching you with “extras” which would otherwise be standard in the normal course.


Sebastian Roberts
Associate Small Myers Hughes Lawyers
sroberts@smh.net.au

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