You’ll often hear the word “conveyancing” when buying a house. Conveyancing is the process of transferring property from one person to another, which is also known as ‘conveying title to the land’.
What happens during conveyancing?
While conveyancing refers to the transfer of title, there are many other things that are involved in a conveyancing transaction. This might include:
The preparation, review, and negotiation of contracts
Due diligence and ordering searches
Calculating adjustments of rates and other expenses
Complying with other legal and contractual obligations
Preparing transfer documents
Arranging legal and financial settlement
How long does conveyancing take?
The length of a conveyancing contract will depend on what has been negotiated between the vendor and the purchaser, however in New South Wales most conveyancing contracts take 42 days (6 weeks) to complete from the time they are signed.
When to engage a conveyancer when buying a house
When planning to buy a house, it’s important to get legal advice on the contract for sale of land before signing it. This is to ensure that your legal representative has enough time to negotiate any necessary changes to the contract terms, or carry out any due diligence necessary.
When to engage a conveyancer when selling a house
When selling a house in NSW, a real estate agent must have a contract for sale of land prepared prior to listing the property for sale. This means that your property lawyer or conveyancer must prepare a draft of the contract (including all of the required property searches), prior to showing any buyers through the property.
Depending on your council area, it can take up to 2 weeks to obtain some of the searches required to prepare your contract, and so it is important to factor this time period into the timeline of your sale campaign.
Who can do conveyancing?
Conveyancing has typically always been carried out by lawyers, however since the passing of the Conveyancers Licensing Act 2003 (NSW), it is also possible for licensed conveyancers to conduct conveyancing transactions in New South Wales. Licensed conveyancers must be licensed in whichever state they want to carry out conveyancing work, and not every state permits licensed conveyancers to act on conveyancing transactions.
Are conveyancers lawyers?
A common question we get asked is “what is the difference between a lawyer and a conveyancer?” While a conveyancer might be licensed in a particular state to act on transactions in that state, a lawyer will typically be permitted to practice in any state across Australia.
In addition to being trained in property law and conveyancing, solicitors have training in many areas of the law. This is very important as a seemingly simple conveyancing transaction can have further implications beyond a basic understanding of just conveying property from one party to another.
For example, consider the following events that could occur during your conveyancing transaction:
What are the tax implications of your transaction such as stamp duty, capital gains tax, goods and services tax? An understanding of tax law is important and highly relevant to a conveyancing transaction.
What happens if a party dies or becomes mentally incapable during the transaction? Or what if the property being sold is part of a deceased estate? An understanding of estate and probate law can be important in these circumstances.
What happens if a party becomes bankrupt or insolvent during a property transaction? An understanding of the Bankruptcy Act 1966 (Cth) and the Corporations Act 2001 (Cth) would be incredibly important.
What if a party breaches their contract or commits an illegal act during your transaction (such as a refusal to settle or fraud)? A strong understanding of contract law is essential.
If you are buying a property for $1million, it is important to understand that you are entering into a commercial contract for a million dollars, often with a complete stranger, and it is essential that you have the best possible legal advice in order to protect your interests on the transaction.
If a dispute arises out of a conveyancing transaction and a party needs to go to court or arbitration, a conveyancer cannot act as they are unqualified to provide legal advice in relation to disputes. This means that you will need to engage a lawyer, who will not only have to take over the transaction, but who will also likely have to review all of the work of your conveyancer. Accordingly, many people believe it is better to simply engage a lawyer on your conveyancing transaction from the start.
Conveyancing prices – How much do conveyancers cost?
Like many things, you get what you pay for. If something goes wrong on your property transaction the consequences will be commensurate to the price of the property you are purchasing, and so can easily be tens of thousands, or even hundreds of thousands of dollars. Accordingly, it is important to obtain the best legal advice possible, as any potential price difference between going to a cheap conveyancer and getting quality legal advice will be significantly outweighed by the potential costs if something goes wrong on your conveyancing transaction.
Generally speaking however, the conveyancing costs will often vary depending on the seniority of the lawyer providing you with advice, the complexity of the transaction, and the price of the property. For example, a $20million commercial property is likely to have conveyancing costs that are significantly higher than a $700,000 residential apartment.
Do lawyers charge more than conveyancers?
Lawyers do not necessarily charge more than conveyancers. Both law firms and conveyancing firms have wide ranging prices, and some conveyancers even charge more than some lawyers.
“Conveyancers near me” – Do you really need a property lawyer or conveyancer near you?
One of the most common searches is for a “property lawyer near me” or a “conveyancing solicitor near me”. A common misconception is that when you buy or sell a property you will need a property lawyer or conveyancer who is located near you.
While it can be helpful if you want to physically visit your conveyancing solicitor’s office, the reality is that in the post-covid world, there is no requirement to actually visit your lawyer or conveyancer to sign any documents in person.
There are several reasons this change has taken place over the last few years.
The rise of video conferencing
Using tools such as Microsoft Teams or Zoom, it is possible to meet face to face without leaving the comfort of your home. As documents can be shared, discussed, edited, and completed together with your lawyer online during a video conference, this means that you can save yourself the hassle of commuting, finding parking, and taking valuable time out of your day to travel to your lawyer or conveyancer.
The rise of e-signatures on contracts
Due in part to the rise of e-signatures following the passage of emergency COVID legislation such as the Electronic Transactions Act 2000 (NSW), documents relating to your conveyancing transaction can be typically be signed digitally.
The e-conveyancing mandate
Since 11 October 2021, eConveyancing has been mandated in New South Wales. This means that all transfers of land take place electronically via an Electronic Lodgement Network Operators such as PEXA. This means that instead of a group of people physically sitting in a room to exchange money and documents for your conveyancing settlement to happen, everything can be done entirely online by your lawyer or conveyancer. This has led to significant increases in the efficiency of settlements, with money transfers and title changes taking place instantly.
While you once had to have a physical certificate of title to show your ownership of the land, and had to hand that over during the conveyancing process when selling a property, pursuant to the The Real Property Amendment (Certificates of Title) Act 2021 all physical certificates of title were cancelled and replaced by electronic records.
How to find the best conveyancing solicitor
Despite the fact that there is no longer any need to have your conveyancing lawyer located near you, what IS important, is that your conveyancing solicitor is well versed in the laws of the state you want to transact in. The conveyancing laws and processes differ greatly between states, and ideally you want to have a property law specialist helping you with your transaction.
Finding the best property solicitor to act on your conveyance is a worthwhile investment. Indeed, in the 1992 case of SR Stevens Holdings Pty Ltd v Von Begensey, Justice Young said “Unless conveyancing is made much simpler, it is no game for the amateur.” Unfortunately, since then, the laws surrounding conveyancing have become exponentially more complicated.
At Thornton + King, our law firm is able to operate online, meaning that we utilise digital technology in order to make your life easier and can service all of New South Wales. Despite our digital capabilities, we have several fully staffed offices which means that if you want to drop in to say hello or to fill out paperwork in person, we are always available to meet with you face to face. Our conveyancing team includes multiple Law Society Accredited Specialists in Property Law with many decades of conveyancing experience. To speak to a conveyancing expert, give us a call or submit an enquiry now.
