Am I entitled to ask the Real Estate Agent to refer the Sale Contract to my Solicitor before I sign it?
Of course, and because our review of the Contract is obligation free, you have the opportunity of assessing the timeliness of our response, our advice and our enthusiasm, before you commit to engaging us.
What will a Real Estate Agent want me to do if I offer to list my real property for sale with him/her?
The Agent will want you to sign an “Appointment of Property Agent” form – your instructions about the sale and the commission you will pay and that you should seek independent legal advice before signing the form.
What does a Real Estate Agent (Selling Agent) do when an offer is made for the purchase of “residential” property?
The Agent is obliged to give to the Buyer a “Selling Agent's Disclosure to Buyer” form – a statement disclosing the relationship the Agent has with others to whom the Agent may refer the Buyer, and the benefits the Agent or anyone else will receive from the sale. Then the Agent will prepare a Sale Contract that should accurately represent your offer and whether you or a company, trust or entity in which you have an interest is the Buyer. Make sure you get this right and if necessary consult your Solicitor or your Accountant before signing.
Is it worth engaging a Solicitor when I know that some people do their own conveyancing?
We think so, but we are biased of course. Apart from that, what training do you have in Contract law? Sometimes there are “issues” with Sale Contracts, so do you think you can fight your way through any legal problem? We believe that, with our knowledge and experience, we can pre-empt a likely problem, and we certainly know how to deal with contractural problems. It has been said that you can even remove your own appendix, but it hurts and there are risks. Given the dollars involved, is it not worth the extra to know that the job will be done right and worry free?
Do I need to specify in the Contract exactly how much I am borrowing?
Yes, you should, because the Law of Contracts requires that all terms of the Contract be certain and unambiguous: clearly understood by both parties.
If I need finance, do I need to know exactly from whom I will try to borrow, before Contracting?
Once again, the answer is yes for the reason of certainty, but it is enough if you nominate the class of financier, e.g. Bank of your choice.
What if I change my mind because I have seen another place I would prefer to buy?
Too late! Once entering a Contract you are obligated to proceed diligently to attempt to fulfil your obligations thereunder. Not to do so is a breach. Termination is available to you only if your diligent efforts fail in a timely way. If you give notice of your intention not to complete, this is an attempt to repudiate allowing the Seller to choose to allow your termination or call upon you to complete. In a termination, the Seller will claim the deposit and could sue for other losses e.g. the difference if a lesser price is obtained upon a resale plus the legal costs thrown away. If the Seller declines to accept your repudiation, then they may sue for an Order that you complete and pay costs, or alternatively claim the losses should it now be impossible for you to complete.
Notwithstanding all of the above, there is a “cooling off” period and you can utilise this provision of the law if you have changed your mind. But there is a penalty - 0.25% of the Sale Price and that could be quite a bit more than the deposit you have paid.
Can the Seller refuse to proceed with the Contract to completion?
A Buyer can also sue for “Specific Performance” of the Contract but must have been ready, willing and able to complete on the completion date. And must also attempt to complete unless the Seller has given clear notice that they will not do so.
Is buying real property in Queensland, the same as anywhere else in Australia?
No, different statutory laws apply imposing different processes. There is no uniformity throughout the Australian States.
When I put down a deposit with the Real Estate Agent, does my money earn interest pending the settlement?
No, not unless the investment of the deposit is a term of the Contract, and this would be most unusual.
Is there a set amount to put down as a deposit?
No, but most Sellers would likely consider that a Buyer is not really serious unless a deposit is offered, and most Real Estate Agents would like to hold a deposit large enough to cover their commission.
What does “unencumbered” really mean when I buy real property?
It means that the real property is free of any rights or powers that someone else may have over it. This could be a loan secured by a registered mortgage or perhaps a registered caveat, or a right of way through or over your land in favour of someone else, e.g. a neighbour for access purposes, or the local authority for drainage, sewerage or similar services.
Can I get my Solicitor in Sydney to act for me when I buy real property in Queensland?
Yes, but in turn that Solicitor would likely employ an Agent (Queensland Solicitor) to advise him/her in relation to Queensland's laws, and how your interests should be protected here, and of course to attend settlement here. This would incur extra expenses for you.
Can I buy land “off the plan” because that might get me the allotment I want, or beat a possible price rise?
Yes, providing the very stringent requirements of the Land Sales Act 1984 have been observed.
What is an encroachment?
This is an intrusion on or over your land by a neighbour's property, or perhaps by your property over that of the neighbour. It may be the land or something on the land. It could be that the fence is misaligned and as a result your neighbour has constructed something thinking it was on their land, but it is on yours. It could be just roof guttering that is overhanging into your “air space.” If the encroachment is material (i.e. significant), you can terminate the Contract. If it is immaterial (i.e. insignificant) you cannot terminate but you can claim compensation.
What if I find out after I own the place, that the fence is misaligned?
This goes back to the “encroachment “question. Rights do not merge (end) upon completion so that if you decide to relocate the fence, compensation to correct the immaterial “error” can be claimed.
Should I have a survey done?
This is a personal decision but if there are no structures either side of the fence, you may wonder “why bother?” But it may be important if you intend to build an extension to the home, or install a swimming pool.
I have heard that electronic conveyancing has commenced. What is that and do you do it?
Electronic conveyancing has become law including enactment of the law allowing the Office of State Revenue and the Office of the Registrar of Titles to participate. This means that your Solicitor virtually becomes a base for data entry into a system whereby a very large corporation takes over your matter, communicates with the opposite party, does all of your searches, prepares all of your documents electronically, stamps your Contract electronically, settles the matter electronically and lodges the documents with the Registrar of Titles electronically. You will never see that corporation or any of its employees. You may as well try talking to your digital watch. Your Solicitor who carries full responsibility for you and your identification really becomes just your agent to deal with the Electronic Conveyancing Company that you will never meet. Consider it to be an electronic figment of your imagination. But you will pay to them a large fee for their service. Unlike a Solicitor, there is no negotiating the fee. Try negotiating with Shell Oil for the price you pay for their petrol at the pump!
Overall the costs of Conveyancing will go up but your local Solicitor and his staff will suffer because their work load will go down resulting in less income, and there will be less need for staff with resultant unemployment. I expect some legal offices will close. That is not my plan.
Even if the other side to your Contract have chosen to be Electronic Conveyancers, the law allows me to continue trading and dealing with other Solicitors in the same old way. The number of small legal practices in Queensland far outnumbers the large practices, and most suburban families chose their local legal practice for legal services. We will continue to provide that personal service.