Maddalena Romano, an experienced solicitor skilled in all facets of property conveyancing, discusses the process for selling a home and advocates for the role of a knowledgeable solicitor in this.

There are different reasons homes are sold. For example, you might be up-grading to a bigger home, down-sizing to a smaller one, or finalising a property settlement. Regardless of your reasons, selling a property it can be a difficult and emotional time. Selling a house is the process of exchanging ownership in property; it involves a broad range of steps such as disclosures, contracts, cooling-off periods, title searches and property inspections before the home is sold.

Selling your home normally consists of three steps

• Pre-contract – preparation of form 1 and searches
• Pre-completion – preparation of the contract of sale
• Post-completion – conveyancing

The solicitor will deal with the full range of potential issues relating to a property including:

• Investigate any charges and encumbrances on the property
• Identify precisely what is included and excluded in the sale? Which items are considered fittings and which are considered fixtures?
• Negotiate the possibility of a final inspection before settlement
• Determine whether or not GST applies to the purchase price.
• Advise on Ownership structure such as joint tenancy or tenants in common

Should I use a solicitor?

Using a solicitor will give you peace of mind thus allowing your agent do what they do best; getting you the best price for your home:
• Cost: for a solicitor to undertake the Form 1, conveyancing will be a fixed fee
• Protection: Solicitors will be able to assist you if the sale goes wrong and protect your interest as you are our client.
• Legislation: Property laws are constantly changing. We have an in depth knowledge of the property laws.
• Qualifications and experience: The contract that will be used is the Law Society contract. We recommend that the Law Society contract is used as the contracts are updates yearly to ensure it meets the highest quality and standards of legal principles adopted by the Law Society. The contact is only available to authorised members of the profession.
• Specialist advice: There is frequently a lot of variation across property sales. Solicitors can help you with the particular needs you have in the transaction. Do you need advice on Capital Gains Tax? Do you need to change your Will? Will the sale have family law implications?

Hidden Costs of Using a Conveyancers

You might think that you are saving costs when you use a conveyancer to undertake your property settlement. When you speak to a conveyancer they will advise you that their cost will be $650 + GST ($715), but they don’t explain to you the hidden costs which you don’t know until you receive your settlement statement after settlement.

Conveyancers will charge you extra for the following:

• For disbursement for check and history search of CT, photocopying, postage, bank cheques, insurance, phone, fax and printing which can equate to an additional cost of between $100 and $150 ;
• VOI fee to comply with Registrar General’s Verification of Identity Policy between $50 and $80 per person;
• Banking fees to attend at Banks to deposit proceeds of sale to nominated bank accounts after settlement an additional $44.

Therefore a simple conveyance of your home goes from $715 to $1000, this is without the benefit of receiving any legal advice.

In Summary…

Solicitors have a comprehensive and nuanced understanding of the Law. As a homebuyer, you are potentially engaged in a complex sale with a high number of issues and risks. Using a solicitor affords you the experience and knowledge to tackle any hurdles decisively and with confidence. Welden & Coluccio Lawyers are experienced in all facets of this process and are able to assist you enabling you to get on with the joys of home ownership rather than the stresses.

A recent Revenue Ruling by the Commissioner of State Taxation has now made clear that the use and implementation of including the phrase ‘and or nominee’ in a contract, most likely for the purchase of land, is no longer required.

A word of warning. If you think it is now safe to begin executing contracts for the purchase of land on behalf of family and friends and so on, think again. Signing a contract for the purchase of land, or any contract for that matter, is a serious step and should not be undertaken without considerable thought and legal advice. If the intended purchaser, perhaps your friend, pulls out of the deal or fails to settle, the vendor will sue YOU. After all, you signed the contract and until settlement occurs you are required at law to fulfill all of the purchaser obligations, including to settle and purchase the property.

First things first, what is ‘and or nominee’ and why was it frequently used?  By using the phrase ‘and or nominee’ after the name of a purchaser, allowed one party to sign the physical contract for the purchase of land, whilst reserving the ability to register the actual owner of the property recorded on the title deed in another.

The best example is the purchase of property at an auction.  Once the bidding has ended the highest bidder must immediately execute the contract for the purchase of the land. On many occasions, the intended purchaser may not be able to physically attend the auction but has given authority and instructions to a third party to bid and execute the contract on their behalf.  In such an instance, the actual purchaser, Mr X, authorised and instructed the winning bidder, Mrs Z, to execute the contract. The name of the purchaser would be recorded as Mrs Z and or nominee.  Shortly after the contract was signed the letter of agency is produced and the Memorandum of Transfer is drafted with Mr X appearing as the actual purchaser.  What is often overlooked is that the letter of agency must pre-date the execution of the contract.

Another avenue for those that have executed a contract for the purchase of land to own it in another name is to assign the contract by way of a deed, another short written contract. In our previous example, if the letter of agency did not exist, or perhaps Mrs Z and Mr X wish to hold the land in a company which has not yet been created, Mrs Z can assign her interest in the contract by deed to the new company.
When it comes to Stamp Duty, a State assessed tax enshrined in the Stamp Duties Act 1923, which is charged on certain documents and transactions (usually where a transfer of ownership has occurred), it has been the previous practice of the Commissioner for State Taxation to require evidence of duty being payable not only on the Memorandum of Transfer but also the Deed of Assignment.  Stamp Duty on the Deed of Assignment is paid on the amount of the deposit paid.

Back to the new ruling. The Commissioner of State Taxation has confirmed he will adopt and recognise the existing common law that a purchaser recorded in a contract may direct (without the need for a deed of letter of agency) the vendor who to transfer the property to.  This will now avoid the need for letters of agency, Deeds of Assignment and the use or overuse of the phrase and or nominee.

Signing any sort of legal document without legal advice is risky. You should always seek professional advice on all legal documents before signing. Welden & Coluccio Lawyers are here to assist and can provide expert legal advice on a range of written contracts including the purchase, or sale, of real estate property.