The laws in NSW require that any residential property marketed for sale must have a draft contract (termed ‘soft copy’) prepared beforehand. This contract must be provided to your real estate agent before marketing may commence.
In New South Wales, the contract needs to include up-to-date copies of the title deed, the plan, any easements and/or restrictive covenants, a zoning certificate and a sewerage diagram. It will cost you around $280.00 for these searches and certificates.
Attwood Marshall do not charge you any professional fees for this service, we do however request the sum of $200.00 for the cost of the various searches and certificates.
We strongly recommend that the contract, as described above, be prepared by a solicitor as soon as possible. Some certificates can take up to two (2) weeks to be obtained. Apart from your legal requirements to provide a soft copy, if you wait until you have a buyer to order these certificates the issue of contracts to the buyer will be substantially delayed, leaving the buyer open to other opportunities.
Acceptance of an Offer
Wnen you have accepted an offer on your property the agent prepares a sales advice.
In the sales advice both the buyer and seller nominate a solicitor and the solicitors receive a copy of the sales advice.
It is the seller’s obligation to provide formal contracts, the seller’s solicitor prepares the formal contracts attaching the (already available) required searches and certificates and a formal contract is then issued to each party for signing.
Exchange of Contracts
The seller signs one contract with their solicitor and the buyers signs one contract with their solicitor. The solicitors then ‘swap’ (exchange) contracts so that the buyer has the copy of the Contract signed by the seller and the seller has a copy of the contract signed by the buyers. At the time of this exchange, contracts are dated and the deposit is payable.
All time limits under the contract begin to run from this date (for example the time allowed for the buyer to obtain finance approval) and neither the seller nor the buyer is legally committed until exchange of contracts has been completed.
We will aim to exchange contracts on your behalf as quickly as possible.
Some offers may include conditions subsequent to the sale. The most common conditions are finance approval and satisfactory pest and building inspections. If any conditions apply to your contract we will let you know once advice has been received from the solicitor for the buyer in regard to any conditions attached to the contract. Until such time as the solicitors for the buyer have confirmed satisfaction of these conditions in writing, the buyer may have rights under the contract to rescind, and therefore the contract may not proceed to settlement.
Once exchange of contracts has taken place we notify your financier (where applicable) of the sale and arrange preparation of release of security documentation. We prepare and finalise settlement figures and cheque details and arrange a settlement time and venue.
We will attend settlement and notify you of completion.We also advise agent of settlement and arrange release of balance deposit to you, and finally we will provide you with formal accounting in relation to sale monies and fees.
Buying a Property
Pre Contractual Negotiations
Once you have found a home you would like to buy, you need to decide whether you would like any special conditions included in the sale contract. For example: Are you obtaining finance or completing the sale of another property? Has the seller agreed to fix anything, and if so, who pays for it?
You can negotiate these matters through your real estate agent so that they are contained in the sales advice the solicitor acting on your behalf will receive. We will then advise on the condition you require and on further conditions to be included at the time of our appointment to discuss the contract.
Exchange of Contracts
As mentioned above, the exchange of contracts is when the contracts become legally binding on both the buyer and the seller.
In New South Wales the solicitors usually do the exchange of contracts. The seller’s solicitor (at the expense of the seller) prepares the contracts. The solicitors then ‘swap’ (exchange) contracts so that the buyer has the copy of the Contract signed by the seller and the seller has a copy of the contract signed by the buyers. At the time of this exchange contracts are dated and the deposit is payable. All time limits under the contract begin to run from this date.
When buying a house it is important to remember to take out a cover note of insurance for replacement value of the house. In New South Wales the risk does not pass until settlement. However, you should not assume the vendor’s insurance will cover any damage before settlement.
A full disclosure of assets and liabilities to your lender is a must – failure to do so will entitle the bank to withdraw its offer of finance at any time. If the bank withdraws approval due to some misrepresentation made by you (whether innocent or not), you are still legally bound to complete the contract. If you are unable to settle without finance, the vendor would be entitled to keep the deposit, terminate the contract and sue you for any damages he or she may have suffered.
We strongly recommend that you obtain written confirmation from your lender of unconditional finance approval prior to advising the seller finance has been successfully approved.
Requisitions on Title are questions about the property the purchaser is entitled to ask the vendor to find out if he or she knows anything that may be wrong with the title to the land. In New South Wales we send Requisitions on Title to the seller’s solicitor within 21 days from the date of the contract.
A number of searches need to be undertaken to ensure no government department or local authority has any claim against the land and all rates and taxes have been paid.
Our usual searches include:
• Rates search through the local authority.
• RMS to ensure it has no proposals for resumption of land or proposals to realign an existing road or truncate any part of the land.
• Land tax search through the Office of State Revenue.
Other optional searches depending on the location and peculiarities of the property include:
• Council Building Inspection.
We recommend this inquiry which is carried out by the local council building inspector to confirm that the original building or any alterations or additions have been carried out in accordance with the Council’s building requirements (for example garages converted into habitable rooms/ pergolas erected) or structures added without permission.
Our search of the title and plan will provide details, which should be sufficient to confirm the land identified in the contract is the area you wish to buy. However, the plan does not show us everything we need to know. For example it does not tell us if the fences are on the true boundaries or whether any improvements of yours or the neighbors are encroaching onto the others land, and whether structures are the required distances from front and side boundaries. Because of this we usually recommend that buyers obtain a survey, but this has to be at the buyers request as the cost can be around $500.00 plus GST.
The balance of the purchase price is usually requested in the last week before settlement. Bank cheques or a telegraphic transfer of funds is the required form of payment. If you are obtaining finance we will liase with your lender to arrange bank cheques on the settlement day.
A pre-settlement inspection is strongly required to determine whether all the inclusions you have contracted to buy have been left in good working order by the seller and the property is in a reasonable condition regarding cleanliness. However, the inspection can not be used as an opportunity to find minor faults with the properties that were pre-existing.
Settlement occurs when we pay over the money on your behalf and obtain the title deed and keys. If you have borrowed money from a bank the bank will hold the title deed until the loan is repaid. It is not necessary for you to attend settlement.
After settlement we arrange for rates, and in the case of a unit the body corporate levies, be paid up to date. We notify the local Council and other authorities of the sale.
We hope the above information has been of assistance in helping you understand the main steps that need to be taken when buying or selling. This is not an extensive list and circumstances vary in each case. We understand the process of buying and selling can be complex and are available at anytime to answer any questions you may have.
With three offices conveniently located at Robina, Coolangatta – Tweed and Kingscliff you can also visit an office near you.