Please note that this post is by no means comprehensive advice on all things that can possibly go wrong. It merely lists out some common mistakes and issues faced by many of our clients. Each matter and issue is unique. If you have a specific enquiry, please contact us.
Engaging an experienced conveyancer and obtaining advice prior to signing documentation.
It is important to engage the services of an experienced conveyancer in order to protect your interests with respect to your conveyancing transaction. It is also important to ensure you obtain advice prior to signing any documentation, including a Contract of Sale, as an experienced conveyancer will be able to highlight any conditions or concerns you should be aware of and will be able to guide you on how to correctly complete any required documentation.
Understanding “Inclusions” that are sold with the property.
The Contract of Sale sets out all the terms in writing such as the purchase price, deposit amount, loan approval dates as well as other special conditions such as obtaining pest and building reports. The Contract of Sale will also state the items which are being sold with the property and for established properties this usually includes but is not limited to permanent fixtures and fittings, light fittings, window furnishings, and floor coverings. It is important to note that a fixture includes anything that is bolted into a wall such as but not limited to TV wall brackets, curtain rails, and shelving. A dishwasher is also included as a fixture. Therefore, it is imperative that if you do not want any items that are classed as a fixture to be included in the sale this needs to be clearly stated in the Contract of Sale to avoid any action for compensation being sought.
It is also important to note that if a Vendor or Real Estate Agent has promised to include items which are not classed as a fixture and fitting, these items also need to be clearly identified in the Contract of Sale as being part of the agreement as verbal representations are hard to prove and cannot be relied upon.
Owner-Builder Works, Section 137B Building Reports and Owner-Builder Warranty Insurance
An owner-builder is someone who undertakes domestic building work on their land and is not a registered builder. Irrespective to whether a building permit has been obtained or not, if the works have been undertaken by a person who is not a registered builder it is a legislative requirement to ensure that a Section 137B Building Report is disclosed in the Section 32 Statement. The Section 137B building report needs to be prepared by a registered builder who is authorised to prepare these reports. In the event a Section 137B report is required and is not included in the Section 32 Statement it will be deemed that your Section 32 Statement is defective and it allows a purchaser to withdraw from the Contract of Sale at any stage throughout the conveyancing transaction, even up until settlement, with no legal consequences. The purchaser will also be entitled to a full refund of any deposit monies paid and may also choose to seek compensation for any losses they have occurred due to the Section 32 Statement being defective.
It is also important to note that it is also a legislative requirement to obtain owner builder insurance for any works undertaken at the property where the costs of such works exceed $16,000.00. A copy of the owner builder insurance needs to be disclosed in the Section 32 Statement and once again, if such insurance is not obtained and disclosed, the Section 32 Statement will be deemed defective and the purchaser has the same rights as outlined above.
The Section 137B Building Report (and the Owner-Builder Warranty Insurance if required) cannot be provided to a purchaser after a Contract of Sale has been entered in to. The Section 32 Statement will still be deemed as defective. It is therefore imperative that the Section 137B Building Report is provided in the Section 32 Statement prior to parties entering into a Contract of Sale.
Pest and Building Inspections
Legislation with respect to conveyancing is very much based on “buyer beware”, meaning it is the Purchaser’s responsibility to ensure a thorough investigation regarding the property is undertaken prior to signing a Contract of Sale. Vendors are not required under legislation to disclose any issues or damage to structures. It is therefore prudent for Purchasers to obtain a pest and building inspection report before entering into a Contract of Sale to avoid any surprises regarding pests and structural issues.
Sometimes, Vendors will agree to making the Contract of Sale subject to a building and pest inspection report. Even so, pay careful attention to the wording of the building and pest inspection special condition. It is often the case that Purchasers can only terminate the contract if there are major structural issues or an active pest infestation. This means that even non-structural major damage or evidence of past infestation will not give you a right to terminate.
Returning loan documents / discharge documents to a mortgagee in a timely manner
Whether you are buying or a selling a property it is important to note that your mortgage lender will also have stringent timelines that are required to be adhered to. Therefore, it is important to ensure any loan documents or discharge paperwork is returned to your mortgage lender as soon as possible to ensure they are able to settle by the due date. If settlement does not occur by the due date this can result in you being in breach of your contract of sale and can result in additional costs being incurred by you and further legal action.