When buying or selling property in New South Wales, the parties will typically negotiate the terms of their agreement, sign identical counterpart contracts, and then exchange them (called an exchange of contracts). This is the process by which the sale of property is confirmed, and the parties will then have to perform certain contractual obligations before the date that has been agreed for settlement and completion of the property sale.
The standard settlement period in NSW is 42 days (6 weeks), starting from the time that contracts are exchanged. Although this is what is typically seen, the parties are free to negotiate a shorter or longer settlement period amongst themselves, based on their needs.
What is property settlement?
Property settlement is the date on which the signed transfer of title documents are lodged with NSW Land Registry Services, and the purchaser pays to the vendor any amounts due under the contract for sale of land. This could be for a house settlement, unit settlement, a commercial property, or any other type of real estate.
Property settlement in NSW occurs electronically via an Electronic Lodgement Network Operator such as PEXA. This is an electronic platform where both parties’ legal representatives will have visibility and control over the transfer documents being prepared, as well as the details of the financial settlement that is taking place. If the vendor has a mortgage or the new purchaser is planning to get a mortgage, their bank will also be involved in the online workspace to provide or accept funds, and to ensure that the appropriate mortgage or discharge of mortgage documents are also lodged on settlement.
What happens in the period leading up to a conveyancing settlement?
Prior to actual settlement occuring, the parties to the contract will usually have various obligations to perform before settlement can occur.
For a purchaser, prior to settlement they may need to:
Arrange funding for the purchase price which might include arranging a mortgage from a bank.
Carry out rate enquiries to ensure that any outstanding rates in relation to the property are paid by the vendor on settlement.
Carry out any due diligence searches that might test some of the vendor’s contractual or legislative warranties.
Prepare settlement adjustments and have these agreed with the vendor.
Arrange a stamp duty assessment with Revenue NSW.
Raise any requisitions in relation to the title of the land.
Carry out a final inspection just before settlement, to make sure the property is in the condition the contract requires.
Prior to settlement the vendor may need to:
Arrange for the discharge of any mortgage that they have on the property.
Verify the purchaser’s proposed settlement figures.
Order searches as required by law and serve these on the purchaser.
Respond to any requisitions on title that have been raised by the purchaser.
Disconnect any services to the property.
Remove all of their belongings.
Comply with any other contractual obligations.
What happens on settlement day?
On settlement day, the legal representatives for the purchaser and the vendor, together with any lenders involved, will all have to approve the final title transfer documents and financial settlement statement. Upon sign off by all parties, the title transfer documents will be lodged with NSW Land Registry Services, and the funds will be disbursed in the agreed method. This usually involves the payment of any outstanding mortgages and rates, with any balance going to the vendor.
How long does settlement take?
It depends on the transaction, but usually from the appointed time, settlement will take about 30 minutes.
Buying a property - Can you move in on settlement day?
Once settlement occurs, ownership of the property will have changed and the purchaser is free to move into the property if it is vacant. Due to the number of parties who have to sign off on the day, settlement does not always happen at the appointed time. Accordingly, if you are booking removalists for the day of settlement, it is important to factor this in to your plans.
Selling a property – How long after the property settlement do you get paid?
Once settlement occurs, funds are typically disbursed instantly. The funds will then clear in your bank account depending on bank transfer times. This is usually within a few hours of settlement, but can sometimes take up to a few days, depending on your bank.
What happens if settlement is delayed by the buyer?
Your contract for sale of land will dictate what happens if settlement is delayed by the buyer. If the buyer is in breach of contract, there will often be interest penalties which will apply. This is to compensate the vendor for any additional mortgage interest they have to pay due to the delays to settlement, or the loss of interest they could have earned if they had been paid on time. It is often set at a level to compensate the vendor for additional expenses such as additional legal costs that have been incurred due to the delay.
In some cases, the vendor may be able to terminate the contract and keep the purchaser’s deposit due to their breach of contract.
What happens if settlement is delayed by the seller?
If settlement is delayed by the vendor, the purchaser’s rights will depend on the terms of the contract. Depending on the reason behind the delay and whether the vendor intends to settle or is simply delayed, the purchaser may be able terminate the contract, or to get a court order compelling the vendor to complete the sale of the property.
Who can help with a conveyancing settlement?
In New South Wales, either a lawyer or a licensed conveyancer can help with a property settlement. It is important that your conveyancing settlement is managed by someone with experience, as there are many contractual deadlines and risks that may occur. If not done correctly, there can be significant legal and financial consequences.
At Thornton + King, our team of property lawyers and conveyancers have decades of experience managing all types of conveyancing settlements. To speak to a conveyancing specialist, give us a call or submit an enquiry now.
