When you’ve finally found your perfect future home, daydreaming about your new life, this can be somewhat rudely interrupted by all the paperwork that is needed for the settlement process. The settlement is a complex task with many steps, and you need the right conveyancer or settlement agent to give you advice and information to help you navigate the process.

What is Conveyancing?

Conveyancing is the legal process of transferring ownership of a land title to a new owner. You will need a conveyancer if you are buying or selling a property to ensure that this tricky process is followed to the letter of the law.

A conveyancer is a licensed professional who specialises in providing guidance about the sale of a property. They are not just needed during the sale of a property but can also be consulted when updating a title (due to divorce or death), subdividing land, adding or removing an easement to your property.

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The Conveyancing Process

There are three major areas that need to be covered in the conveyancing process:

Pre-Contract

One of the most important tasks your conveyancer completes is to prepare all the legal documents that form part of your real estate transaction. This is essential to ensure you meet the relevant legal obligations in your State or Territory. As these documents can differ by State or Territory, your conveyancer will guide you on what documentation is needed.

For the seller, one key documentation piece is the Contract of Sale. It allows you to add any special conditions around settlement date or items that are excluded from the sale. They will also run all the title and planning searches that need to go into the final documentation packet as part of the sale.
As a seller, you will also need to complete legal forms from various government departments. It is important to remember that some certificates can take several weeks to obtain, so plan this into your selling timeline.

If you are the buyer, these title and planning documents are key. The Certificate of Title and other paperwork allow you to see if there are any encumbrances on the property (like easements), or anything else that could limit your enjoyment of the property.

A good conveyancer will review these documents with you before you sign the Contract of Sale and advise you of any specific terms laid out that you need to be aware of.
Exchange

Exchange is a meeting between the buyers and sellers’ legal representatives, where they exchange the signed contracts. During the exchange process, the Contract of Sale becomes legally binding for the buyer and the seller. The deposit cheque will be given and held in the trust account of the real estate agent until the settlement and cooling-off period starts. The cooling-off period will be specified in the contract, and it allows the buyer to change their mind about the property purchase for any reason, but they must forfeit around 0.25% of the purchase price. Your conveyancer can advise you on how to proceed if you do change your mind.

Settlement

Settlement is the final stage of the conveyancing process. The final inspection is completed, finances are settled, and the buyer takes possession of the property.
The conveyancer will assist in preparing the finalising settlement figures and details, including any small details like outstanding council or water rates to ensure the seller is not liable for any costs incurred after the settlement date.

Transfer documents will be prepared, including any legal requirements specific to your State or Territory.

Settlement time is coordinated by your conveyancer, during which the property officially changes hands, and all paperwork is handed over. Upon completion of settlement, your conveyancer will confirm all the details and allow for keys to be handed over, and the property is now yours!

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Difference between a conveyancer and a solicitor

The main difference between a conveyancer and a solicitor is specialisation. A conveyancer is a licensed professional who has very detailed knowledge of property law, and who specialise in property transfer. Solicitors are lawyers who have a broader knowledge of the law in general, but with special interest in property law. They may have studied it as an elective when completing university or specialised later once they went into legal practise.

Consequently, a solicitor can advise their client not only on all aspects of a property transaction, but also on issues that might relate to the conveyance, such as the tax implications, how the sale of a house might impact their client’s divorce proceedings, or even drawing up a will that takes into account the new asset.
Due to their broader knowledge of the law, if your property transaction is complicated, or risky, it may be worth the additional expense of engaging a solicitor instead of a conveyancer.

Both solicitors and conveyancers are covered by professional indemnity insurance, which protects consumers by giving them access to funds if their conveyancer makes a mistake or is negligent in the conduct of a conveyancing transaction.

It is also important to note that only solicitors from a law firm can perform the conveyancing process in Queensland and the Australian Capital Territory. They can call themselves conveyancers, but they need to be a fully-fledged lawyer and must comply with the rules and regulations of the Legal Profession Act.

Australian State Differences

Each State and Territory in Australia handle the home conveyancing process differently. From the First Home Owner Grant, to differences in the vendor statement as well as different mandated cooling-off periods, those disparities can have a significant impact on the sale of a home. This is especially important if you are buying interstate. Your conveyancer will be across any state-specific legislation and can review with you the details on how your state handles all the ins and outs of the home conveyancing process.
Your conveyancer should be a Certified Practising Conveyancer (CPC) with the Australian Institute of Conveyancing (ACI) division within the state you are buying or selling the property in to ensure they are up to state on the minutiae of the state’s legal conveyancing processes.