If it’s your first (or even your seventh!) time buying or selling a home, it can feel a little overwhelming. There are conveyancing laws and processes to navigate, documents to read, understand and sign; and, all things going well, a settlement to handle. And if you’re buying a property in another state, these things become even more complicated.
So do you need a lawyer to buy or sell a house? Or can you do it on your own?
Actually no. You don’t technically need a lawyer (or even a conveyancer) to buy or sell a home. In fact, there’s no legal requirement to engage any professional support at all.
However, most Australians do use the services of a property lawyer to sell their homes and to buy a new one and for good reason. There’s a lot of complexity in conveyancing and in the conveyancing process – which generally involves a good deal more than simply filling out forms.
And where there’s complexity, there can also be the risk of costly errors.
So while ‘doing-it-yourself’ is certainly an option, in the vast majority of cases, you’ll want to use a property lawyer to protect yourself and your assets.
Using a property lawyer when buying or selling a house is always a good idea. Only a property lawyer is qualified to give you advice on conveyancing laws and your specific contracts and clauses or to help you modify or amend the contract in any way. You may have the best real estate agent in the state, who understands the ins and outs of the property market, but they simply aren’t qualified to give you any advice on property law.
Your property lawyer is an expert who has been trained in conveyancing laws and other types of property transactions. They have the expertise and experience to guide you through the transaction and make sure that your interests are protected. Many conveyances (a transfer of real property by means of a deed or instrument other than a will) will have special conditions or legal issues that arise from your property – and your lawyer is the only one that can help you manage these. They are also able to recognise where clauses might not be drafted in your favour, or things that aren’t standard practice. Without that expertise, you could find yourself in a difficult position down the track.
Further to this, if the party on the other side of the transaction is using a property lawyer, you certainly want the support of one on your side as well. Only a lawyer can ensure that the contract is legal under applicable conveyancing laws, correct according to the terms you have agreed with the other party AND fair and equitable to you as well.
So, when it comes to helping you buy or sell a home, what does a property lawyer actually do?
Your lawyer will check the title and plan of any property that you are looking to buy for easements, caveats and other encumbrances (or things that impact the use of the property or your ability to sell the property free and clear). For example, the neighbouring property might have the right to drive down on your land to access the back of their property, or there might be a statutory easement for sewerage. Any encumbrance could impact a future owner’s ability to build structures or make improvements on the property.
You may need other searches completed before finalising the transaction – and your solicitor will know where and what to look for. This might include applications for development that could affect the value of your property (for example, an apartment building being developed on a neighbouring parcel of land), or a search of contaminants or noise that have been registered and could affect the contract.
If there are any issues found in any of the searches, your property lawyer will let you know what those are, and what they mean for you and your transaction. In some cases, you will need to have amendments made to the contract price or provisions. Your property lawyer can help you make those amendments.
Your solicitor will take care of all the paperwork required to have your contract stamped for stamp duty purposes. The application can require a great deal of information, such as the particulars of the sale (of course), but also the relevant code for the document, all consideration, the amount of any duty or fines and more. Your property lawyer will also help you comply with all state government requirements.
Settlement is the last step and the process isn’t a matter of simply exchanging a bank cheque for a set of keys. In fact, in most cases, you can expect the settlement to take around 4-6 weeks and it can be very involved.
However, most modern firms like Patrick Dawson Law, now use an online platform called PEXA which is backed by a government initiative. The online conveyancing platform provides a streamlined and collaborative property exchange process aimed at creating less paperwork, process times and margin for error.
Your solicitor will still need to make sure that all the clauses on the sale contract are fulfilled and ensure that the transfer of land and mortgage is executed correctly and electronically registered with the land and title registry office for the relevant state.
If you are selling or buying a home interstate, the process becomes even more complicated as the requirements for settlement will be different in different states. So, if you are selling across the border, it definitely pays to have a property lawyer who understands the legislation on both sides!
A property lawyer is your partner when it comes time to buy or sell a home. Their job is to understand all applicable conveyancing laws and ensure that you’re getting the best and fairest deal possible. So, when you’re asking do you need a lawyer to sell your house the best answer is ‘yes’.
At Patrick Dawson Law we want you to be informed, proactive and get the right advice. And a property lawyer is certainly in the best position to get you there!
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