3 REASONS WHY YOU NEED A LAWYER TO BUY A HOUSE IN AUSTRALIA
What is Conveyancing?
Conveyancing refers to the transfer of legal title of property from one party to another. This is usually done through the transfer of title when buying and selling of real property such as houses. Conveyancing in NSW is primarily governed by the Conveyancing Act 1919 (‘The Act’).
The Act defines a conveyance as:
“any assignment, appointment, lease, settlement, or other assurance by deed of any property.”
Who is a Conveyancer?
In Australia, conveyancing can generally be done through three different avenues:
A solicitor with experience in conveyancing matters:● A solicitor with experience in conveyancing matters will have undergone training to become a qualified solicitor in NSW and is admitted to the Supreme Court of NSW● A solicitor will have extensive knowledge on conveyancing but will also be well versed on other matters such as contract, taxation, and tort law
A Conveyancer● To become a Conveyancer an individual must receive a Conveyancing licence by undergoing accredited courses such as a Diploma of Conveyancing
On your own through a DIY kit● Individuals wishing to do their own conveyancing are able to buy at-home DIY kits which they can use as a guideline do their own conveyancing work.
What does a Conveyancer Do?
You may be asking yourself ‘Why do I need a Lawyer to buy a House?’ and the answer is that the role of the Solicitor Conveyancer is to ensure all necessary searches are completed in relation to your property prior to its purchase finalisation in addition to overlooking all required documents in a property transfer/sale.
Some of these documents can include:
● Loan Contract;● Certificate of Title;● Vendor’s Statement;● Settlement Statement;● Transfer Documents;● Contract of Sale.
If any or all of these documents seem unfamiliar to you, we recommend getting in touch with a conveyancing solicitor to ensure that your property transfer goes through as smooth as possible.
Other checks on a property a qualified conveyancer will be able to do are:
● Title Searches;● Local Authority Searches;● Risk Search;● Structural Fault Searches;● Pest Control History;● Strata History Searches.
By conducting important searches such as those above, a conveyancer is able to determine the history of the property you wish to purchase and is able to immediately alert you to any possible issues that may arise out of their searches.
An example of this in action would be a conveyancer contacting you after doing their property searches to alert you to the fact the property you wish to purchase has a long history of structural faults meaning you may be liable to large repair costs in the near future to repair them.
Who can do Conveyancing in each State and Territory?
In all Australian territories, with the exception of Queensland and the Australian Capital Territory (ACT), a party purchasing a property has the option of choosing a Conveyancer or Solicitor to assist them in their conveyancing needs.
In the ACT and Queensland, a solicitor must be used for all property transactions.
Why do you need a Lawyer when buying a house?
One of the main reasons why an experienced solicitor is much more effective than a conveyancer is experience. Whilst a conveyancer will only be qualified to assist you in matters relating to a small area in property law, A solicitor with specialisations in conveyancing will be able to help you across a broad field of legal issues ranging from contract disputes to property matters, lease agreements and land disputes.
2. Legal Ability
As they often do, conveyancing has the potential to turn into a complex litigious matter as parties who want different results fight to get the best possible outcomes for themselves. While an experienced solicitor will often be able to reduce the chances of this occurring, they will be equipped with the legal knowledge to protect your interests in the event that you are required to address your matter through court.
If you were to undergo the conveyancing process with a conveyancer or on your own, your legal risk increases as you will not be provided the same knowledge of the law a qualified solicitor will have.
3. Minimises the risk of fines or breach of contract
The role of a conveyancer is to ensure that all necessary avenues have been explored and all possible gaps in the law have been filled in. Doing your own conveyancing work poses many risks as you will not have the necessary legal knowledge on contracts, property sales and purchasing to ensure that the contracts you are examining do not have any legal loopholes that will risk the possibility of you being fined or found to be in breach of contract later on.
Being found to be in breach of contract due to overlooking something that you thought would be unimportant could result in hefty costs as you may have to pay costly damages to the other party in the contract meaning your cheaper at-home kit will costs you a lot more than an experienced conveyancing solicitor!
Do you need a Lawyer or Conveyancer to buy a house?
Whilst you have the option to conduct your own conveyancing, the risks associated with this far outweigh the cost benefit of a do-it-yourself kit. These risks can include:
1. Delays due to inexperience
In addition to overlooking any legal issues within your contracts, the sheer volume of work that needs to be undertaken in the process of a DIY conveyancer has a high possibility that works will be delayed due to the large amount of time taken to go through each of these documents page-by-page.
As shown above, a conveyancer’s role is to overlook multiple documents that are sourced from multiple different sources and each of these documents has the possibility of containing hundreds of pages each! Whilst an experienced conveyancer will be equipped with the knowledge to weed out and assess the important information, an inexperienced person doing conveyancing work will be forced to look through all of these documents separately and in detail to ensure that they are not overlooking any important details.
Whilst at-home Conveyancing Kits may be cheap to purchase, the sheer amount of time that you will spend overlooking the required documents means you will be wasting valuable time that could be used for other things such as dealing with furnishing your new home or spending time with your family.
2. Lack of Support
Whilst doing your own conveyancing may be a good solution to keeping costs low, you will be own your own as you navigate the complicated work of property and contract law.
Utilising an experienced conveyancing solicitor for buying a house or selling a house will not only ensure that you are having an experienced and qualified professional examining your documents, but it will give you access to their professional advice, allowing you to receive support for any questions you may have when you come across legal jargon or terminology you are unfamiliar with.
3. Need for a PEXA Subscriber
In NSW, to complete the conveyancing transaction, you will need to be a registered subscriber to PEXA, an electronic settlement facility where most settlements now take place.
Because of this, you will likely need to engage a conveyancer or solicitor to undertake the actual settlement part of the conveyance, given that they will likely be a PEXA subscriber.
The material included in this article is designed and intended to provide general information in summary on conveyancing in Australia, which is current at the time of publication, for general informational purposes only. The material does not apply to all jurisdictions.
This article does not constitute legal advice. This article is not intended to be a substitute for legal advice you obtain from a lawyer and as such, you should not rely upon this article as legal advice or a substitute for legal advice.
Buying a house without a lawyer or selling a house without a lawyer is a time-consuming and complicated matter which can be overwhelming for some. Contacting an experienced conveyancing solicitor will provide you with the assistance and guidance you need to meet all the legal challenges face when purchasing a new home.
Contact our office to speak with one of our conveyancing lawyers who can help guide you through the conveyancing process in Australia and assist you to with conveyancing needs.