Frequently Asked Questions
Conveyancing is the process of transferring the ownership of property from one person to another. A conveyancer is a licensed and qualified professional who can:
- provide information and advice about the sale or purchase of property
- prepare legal documentation for property transactions
- represent either the vendor or the buyer during the settlement process.
Conveyancers are not legal practitioners but conveyancing work can be undertaken by a solicitor.
Your Conveyancer will
- Protect your interests
- Be your advocate
- Keep you informed
- Ensure you can exercise your rights
- Ensure you meet your responsibilities
You should organise a conveyancer as soon as possible when buying or selling property, don’t wait until legal documents are ready to be signed.
Never sign a contract without carefully reading it first. Do not sign it if there is something that you don’t understand or are unsure of.
Ask your Conveyancer to clarify any areas or have them read the Contract before you sign it.
The only Lands Titles Office fees applicable at settlement on the sale of a property are for any applicable mortgage, encumbrance or caveat required to be removed.
Land Tax is only applicable when the property is not your principal place of residence and is over a certain threshhold.
If you would like to know how much tax you might pay, check the Revenue SA website.
Yes, all conveyancers who are members of the Australian Institute of Conveyancers are required to be protected by professional indemnity insurance.
This is to protect you, the consumer, in the unlikely event that something does go wrong.
Contact a Conveyancer as soon as possible to organise for a Contract of Sale and Form 1 to be prepared for signing by both yourself and the purchaser.
They will then guide you through the transaction from there.
The first two people you should contact are a Surveyor and a Conveyancer.
The Surveyor will organise the plan and consents from the Council, SA Water and the Development Assessment Commission.
The Conveyancer will organise the consent from any Bank or other interest registered on the title and the Lands Tittles office.
A Memorandum of Transfer is the document that transfers the land from the Seller to the Buyer.
It is lodged with the Lands Titles Office by your solicitor or conveyancer at settlement.
Property in South Australia falls into three categories –Torrens Title, Strata Title and Community Title.
If you are buying a home on its own block of land it is likely to be a Torrens Title property. If you buy a unit, flat, townhouse or apartment it may be a Strata or Community Title.
A solicitor or conveyancer will be able to advise you on how the various types of title affect your ownership rights and responsibilities.
When inspecting a property, ask about the title. The agent or owner should have copies of the title and any other relevant document, which show restrictions or encumbrances on the land.
Under the Torrens Title system a Certificate of Title exists for every separate piece of land. The certificate contains a reference that consists of a volume and folio number, ownership details, easements and/or rights of way affecting the land and any encumbrances including mortgages, leases and other interests in the land.
If you are buying a property in a unit development, the land may be divided by strata plan and referred to as Strata Title.
A strata plan under the Strata Titles Act divides land into units (of which there must be at least two) and common property. Unless the strata plan indicates different, the boundaries of the unit are defined by reference to the structures (i.e. walls, floors and ceilings) in a building, not by reference to the land. There must be an area of common property for which everyone is responsible.
A Strata corporation is established to administer and maintain the common property for the benefit of all unit holders. All unit owners are automatically members of the corporation.
There are two types of community title – a community scheme or a community strata scheme.
A community title divides land into: lots (of which there must be at least two) and common property. Where the community scheme is not a strata scheme, the boundaries of the lots do not relate to a structure, but are defined by surveyed land measurements and are unlimited in height and depth unless otherwise specified.
The owner of an individual lot is responsible for the maintenance and insurance of any structure on that lot and has no obligation for maintenance of other lot owners’ buildings.
In a Community Strata Scheme the lot boundaries are defined by reference to structures (usually parts of the building), similar to a strata title.
The structure itself is common property and it is therefore the responsibility of the corporation to maintain and insure it.
Settlement is usually set between 30 and 90 days from the date of signing, but this period of time can be negotiated between the Seller and the Buyer.
The agreed date is recorded in the contract. Settlement date is the day of the transfer.
An Easement is a right over land, granted to a third party – it is usually for underground pipes or wiring.
It is common for blocks of land in major land developments to contain an easement for stormwater or sewerage pipes.
Easements should be noted on the Form 1 and Certificate of Title.
Buyers should take specific note of where the easements are located on the property.
You cannot build a solid structure over an easement without the approval of the person to whom the easement is granted. If you do, and they want access to the easement, you must remove your structure at your cost.
An Encumbrance is a restriction over land.
It sets out the rules on what you can and cannot do with the land. For example, you may not be allowed to erect a metal fence or a galvanised shed.
Make sure you read and understand any encumbrance before you sign a contract.
In South Australia, if you buy a property other than at auction you have a cooling-off period when you can reconsider the purchase, conduct further inspections, or to just change your mind if you feel you have made a hasty decision.
The Form 1 details your right to cool off and how you must go about serving a cooling-off notice.
The cooling-off period expires at the end of the second clear business day after the contract was made (if you received the Form 1 prior to making the contract), or the Form 1 was served on you (if you received the Form 1 after making the contract). However, you cannot cool off once settlement has occurred.
The cooling-off notice must be in writing and served on the vendor or the vendor’s agent.
Precise details of how the notice is to be served are set out in the Form 1. There is no special wording for the notice and no reason has to be given, however the notice has to be clear that the purchaser does not intend to be bound by the contract.
If a property is to be offered for sale by auction but you make a successful offer before the auction, a cooling-off period does apply unless you waive that right after obtaining independent legal advice.
You also have no right to cool off if you buy after the auction but on the same day the auction was held.
You may have a limited right to cool off if you buy by tender or if the contract is made by the exercise of an option to purchase the property.
If you are buying a property with another person you must elect whether to hold the land as ‘joint tenants’ or ‘tenants in common’.
In a joint tenancy, each owner owns all of the property jointly and there is one title containing the names of all owners. If one of them dies, the property automatically passes to the other(s).
In a ‘tenants in common’ situation, each party holds a set share of the whole property.
Tenants in common can sell their shares or leave them to someone in their will.
If you are considering these forms of ownership but are not sure about them, seek professional legal advice.