Many people are unaware of the differences between QLD and NSW when buying a property in New South Wales.
Although the differences between the states are expected in a Rugby League State of Origin match, you would not expect adjoining Australian states to be so different for conveyancing! Attwood Marshall Licenced Conveyancer, Rachel Godden, discusses the major differences between the states and gives some helpful pointers if you are thinking of buying property in NSW.
“EXCHANGE” OF CONTRACTS
People who have bought and sold property in Qld are used to dealing with the real estate agent and signing a sale contract prepared by the agent. The seller and the buyer usually sign the same document with the contract quite often going backwards and forwards with offers and counter offers being initialled. Contracts in Qld are subject to a 5 day cooling off period and the majority of people do not seek advice from a lawyer before signing a contract.
In NSW, the procedure is completely different. A seller (vendor) cannot even list their property for sale unless a draft contract which includes essential searches is drawn up by their lawyers and provided to the real estate agent. However, this draft Contract is rarely completed and signed by the parties through the real estate agent. You must first enter into an Agency Agreement with the agent. A useful fact sheet is provided by the Office of Fair Trading.
Once an offer has been accepted by the vendor through the real estate agent, a ‘Sales Advice’ is sent to the vendor’s solicitor who then completes the contract, as well as inserting any agreed special conditions. A “counterpart” copy of the contract is then sent to the purchaser’s solicitors for the buyers to sign. There is usually a request that the purchaser’s solicitors complete a 66W Certificate to waive the cooling off period. Likewise, the vendor’s solicitors attend upon their clients to sign the other counterpart copy of the Contract in readiness for “exchange”.
After both counterpart copies of the Contracts have been signed by each party, the Contracts are then “exchanged”. The seller’s solicitor hands over the copy of the Contract signed by the sellers and the buyer’s solicitor hands over the copy signed by the buyers. Both parties must carefully check that the Contracts are identical and the Contracts are then dated the date of exchange. Quite often this is done by email and/or post.
This process of “exchanging” contracts is completely foreign to Queenslanders and it is difficult for people unfamiliar with this process to properly understand that an enforceable Contract has been brought into existence. They question how a document that is not signed by both parties could possibly be a proper contract!
Not only are people surprised at the completely different procedure, they are also unfamiliar with the intervention of the lawyers at the time the Contracts are signed and the additional time and logistics involved of having a signed enforceable Contract between the parties.
ADVANTAGES OF ‘EXCHANGING’ CONTRACTS IN NSW
Although entering into a signed contract in NSW is a convoluted process compared to Qld, there are some definite advantages of the NSW system:-
- The draft copy of the Contract prepared by the seller contains the essential searches and documents for a buyer to satisfy themselves as to the main things pertaining to the property. There is a title search, registered plan, local government zoning certificate and a sewerage diagram. Buyers (and their lawyers) can see from this draft Contract the basic legal issues which affect the property. This saves the buyers from carrying out these searches after they have signed the Contract as is the case in Qld;
- The input of the lawyers on both sides prior to the Contract being signed and exchanged ensures that both parties are properly advised and that any appropriate special conditions are inserted into the Contract before it is finalised and signed. This can save a lot of time and heartache compared to the system in Qld where a Contract prepared by a real estate agent must be terminated due to factors affecting the property which were not disclosed in the Contract itself. Once again, the absence of searches often results in issues adversely affecting the property only being discovered after the Contracts have been signed and searches undertaken. At least in NSW, if the parties are properly represented by lawyers who are experienced in conveyancing and property transactions, there should not be any significant unforseen issues that arise between the parties. This usually results in a more orderly settlement of the matter because any issues are usually thrashed out prior to the Contracts being exchanged;
- It is a usual requirement of the exchange that the buyer’s lawyers sign a Certificate waiving the cooling off period in NSW. The advantage of waiving the cooling off is that the parties have an immediate enforceable Contract that cannot be terminated by the buyer under the cooling off provisions. Although there may be other conditions (e.g. finance and pest and building) which need to be satisfied, at least the Contract cannot be terminated for no reason under the cooling off provisions.
CONTRACTS IN NSW ARE NOT “TIME OF THE ESSENCE”
One of the most important differences between Qld and NSW Contracts is that in NSW, the Contracts are not “time of the essence”. In Qld all contracts are “time of the essence”. This means that the settlement date prescribed in the Contract is an essential condition and that if you fail to settle by paying the balance purchase price on the agreed settlement date, the seller has the option to terminate the Contract, forfeit the deposit and sue for damages (or sue for specific performance to enforce the completion of the Contract).
In NSW, Contracts are not “time of the essence” and the standard conditions have a 14 day “Notice to Complete” provision. This provides that if either party does not settle on the due date in the Contract, the other party must first serve a Notice to Complete upon them giving them a further 14 days to settle. It is only at the end of this additional 14 day period that the Contract truly becomes “time of the essence”. This would then entitle the innocent party the right to terminate the Contract in the event that the other party has not settled on the due date.
This crucial difference in the laws for the two states is particularly relevant when someone is buying and selling between states. The Qld Contract is a “time of the essence” Contract and the NSW Contract is not. It is very important that a special condition is inserted in the Qld Contract to ensure that its completion is subject to and conditional upon the settlement of the NSW property (just in case something goes wrong with the NSW Contract and a Notice to Complete giving a further 14 days is required). If this important condition is not taken into account, you could find yourself high and dry having to settle on a Qld Contract with the NSW Contract being delayed. If you are intending to buy and sell between the two states, it is very important to ensure that you obtain proper legal advice on both Contracts to ensure that the transactions settle simultaneously and are conditional upon each settling contemporaneously.
TITLE DEEDS ARE STILL USED IN NSW
The only other significant difference in NSW to Qld is that NSW still has a paper system of title deeds. On settlement, the sellers must hand over the title deed for the property which is then sent to the Titles Office for registration of the Transfer. The Titles Office then issue a fresh Certificate of Title for each Transfer of the property to the new buyers. Qld introduced an electronic title system in 1994 and, although you can specifically request for a paper title deed in Qld, this can only be done after lodging an application to the Titles Office. However, NSW is planning to dispense with paper Certificates of Title and looks to be following the Qld electronic system over the course of the next 12-18 months.
There are pros and cons applicable to the NSW system of conveyancing. Many NSW residents and lawyers are familiar with their own systems and swear by them. Queenslanders experiencing these different procedures for the first time are often surprised and incredulous that such differences would exist between the two states. Attwood Marshall being located in the border town of Coolangatta has acted in both states for over 70 years and the differences between the two states are second nature to us when acting in these matters. It can become particularly complex when someone is selling their property in Qld and buying in NSW!
We recommend that if you are planning to buy property in NSW, you ensure that you engage lawyers who are experienced in handling conveyancing and property matters in that state. There are many Qld solicitors who attempt to act in NSW conveyancing matters and make crucial mistakes. You should ensure that your important investment is protected by using experienced lawyers in this area.
You are welcome to contact our office with any enquiries concerning property and commercial advice. Please contact our Property and Commercial Department Manager, Jess Kimpton on direct line 07 5506 8402, email [email protected]
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