Land is the main focus of property law. Each state in Australia has a different regime for the regulation, procedure and compliance. It is a largely statute-based area of the law but can still be influenced by the common law and principles that originated from Australia’s history as a colony of the United Kingdom, where land and estate law developed through the ambit of feudalism.
Property law creates a system for evidencing, recognizing and transferring title to land, facilitating its use as an economic instrument. Other legal instruments in property law that facilitate the private and commercial dealing of land include the mortgage, lease, covenant and easement.
The Torrens title system was first introduced in South Australia by Sir Robert Richard Torrens, the Registrar-General of Deeds, through the Real Property Act, 1858. New South Wales adopted the Torrens system with the commencement of the Real Property Act, 1862 on 1 January 1863 and this marked the beginning of the end of Old System land titles and the start of the system we use today. There are still some remnants of the Old system land titles.
In accordance with the principles of the Torrens system, each state maintains a land titles register of land that has been registered under the system which also shows the proprietor (owner) of the land. This system was devised to reduce the amount of fraud relating to land due to falsification of title deeds. It does so with “ownership” of the land being confirmed only upon registration of the property.
The Torrens system also provides for registration of other interests in land such as mortgage, by which land is used to secure a loan.
The two pieces of legislation regulating interests in property in NSW is the Real Property Act, 1900 and the Conveyancing Act, 1919.
All paper land titles in NSW were abolished on 11 October 2021 and all land dealings must be lodged electronically with NSW Land Registry Services.
All registered land title certificates are maintained in public registers which can be accessed either online or in-person. A title search of the Torrens Title Register held by NSW Land Registry Services is the single source of trust as to ownership of a person’s home or property.
At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Land in NSW can be held 3 ways by a person. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons. All these holdings are dealt with separately on death. In this article, I will only deal with holding the land individually.
The first step is to ascertain if the deceased left a Will. If the deceased left a Will, the executor needs to apply for a Grant of Probate (“Probate”) from Supreme Court of NSW (“Court”). Probate is issued by the Court acknowledging the validity of the deceased’s Will and authorizing the executor to administer the Estate. If there is no Will, the next of kin of the deceased needs to apply for Letters of Administration. This is issued by the Supreme Court of NSW authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules. Once Probate or Letters of Administration has been obtained, the land is able to be dealt with.
If the land has not been left to a beneficiary in the Will, the land will be sold and sale proceeds will be distributed to the beneficiaries in the Estate.
In order for the property to be sold, a Contract for Sale of Land (“Contract”) needs to be prepared by your solicitor/conveyancer. This can be prepared prior to receiving a Probate/Letters of Administration. In the special conditions of the Contract, your solicitor will have a clause making completion of the contract subject to Probate being obtained. The time period is usually 3 months to allow sufficient time for the Probate to be obtained and registration of the Transmission Application to executor to enable the executor to sell the land.
Currently, the time frame for the Court to process Probate is approximately ten weeks from the time your solicitor has lodged the probate application with the Court. If a requisition is received from the Court, this will take a further period of a few weeks in order to comply with the requisition and that means a further delay in obtaining Probate.
In all likelihood, your solicitor will be extending the period of the special condition regarding Probate to be obtained to 4 or 5 months to ensure sufficient time is allowed to obtain Probate so the executor will not be in default of the Contract.
Settlement of a matter cannot take place until the Probate is obtained as this is the document required to enable the Transmission to the Executor to be lodged with the Land Registry Services.
At Everingham Solomons, we have the expertise to assist you in Estate and conveyancing matters because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
When you are dealing with land and a deceased Estate, your conveyancer/solicitor will use terminology you are not familiar with.
The first step is ascertaining if the deceased left a Will. If the deceased left a Will, the executor will need to apply for a Grant of Probate from Supreme Court of NSW. A Grant of Probate is a document issued by the Supreme Court of NSW acknowledging the validity of the deceased’s Will and authorizing the executor to administer the Estate.
If there is no Will, the next of kin of the deceased will need to apply for Letters of Administration. This is a document issued by the Supreme Court of NSW authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules.
Once Probate or Letters of Administration are obtained by the executor/administrator, the land is then able to be dealt with.
Land in NSW can be held by a person three ways. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons. All these holdings are dealt with separately on death.
Holding land as an individual or as tenants in common with another person
If the deceased did not leave the land to a beneficiary by way of his/her Will, the land will need to be transmitted to the executor by way of a Transmission Application to Executor and registered with Land Registry Services with fees payable via the PEXA platform. The Transmission Application to Executor will enable the executor to sell the land and once sold, the funds of the Estate will then be distributed to the beneficiaries.
If the deceased left the land to a beneficiary under his/her Will, the property will be transmitted to the beneficiary by way of a Transmission Application to Beneficiary. Upon the payment of a $50.00 stamp duty fee and registration fees of the Transmission Application to Beneficiary with the Land Registry Services via the PEXA platform, the land will be transmitted into the beneficiary’s name.
Holding the land jointly with another person
If the deceased holds the land jointly with another person, the survivor of the land will become the registered proprietor of the land. To enable the land to be transferred to the surviving joint tenant, a Notice of Death form with evidence of the Death Certificate of the deceased needs to be registered with the Land Registry Services with fees payable via the PEXA platform.
At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Quite often I come across sellers, testators, shareholders, lessors/lessees and mortgagors/mortgagees wherein their names are incomplete or otherwise different from their identification documents (ID) i.e. birth certificate, driver’s licence, passport and marriage certificate (if applicable).
The spelling of your name is critical when preparing any legal documents for example your Will, Power of Attorney, Appointment of Enduring Guardian, sale and purchase of Land Contracts, Leases, Mortgages and transferring of Company Shares.
These discrepancies can result in delays finalising your property transaction, in some cases causing a breach of contract and can result in increased transaction costs, and frustration. It can also cause issues or delays with selling your shares if you want to hit the market at its peak.
There are many reasons for the inconsistencies, however the most common are:-
Anglicised names (which buyers/sellers/shareholders may commonly go by in day to day life) are not always the same names as reflected on their legal ID documents
Marriage (or breakdown of marriage) where the seller has changed their name since purchasing the property or shares
Missing middle names, which buyer/seller/shareholder may not use all the time, accidently being omitted from the legal documents i.e. Contract for Sale or Purchase of Land/Share Transfer Forms/Will/Power of Attorney etc
Testators/donors providing misspelt names of their executors, beneficiaries and attorneys.
Old errors, perhaps from missing or incorrectly spelt names when a seller originally purchased the property/shares or data entry errors made by land/ share registry at the time
Foreign names where there is unfamiliarity. In some cultures, the christian name is written last and the surname is written first for example, Liu Jianguo, in Chinese would be Mr. Jianguo Liu using the Western style.
As we are moving towards a more digital world, it is becoming more important for us to use our full legal name as set out in our identity documents, and we need to ensure our full legal name is used on all documentation in any legal process.
At Everingham Solomons, we have the expertise to assist you because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
When buying a property you need to ascertain if the property is vacant possession or tenanted. If you want to live in the property, you will require the contract to stipulate vacant possession.
What is vacant possession?
Vacant possession refers to the exclusive use of the property, free from any tenancy or any physical impediment preventing the purchaser from enjoyment of the property. This requires the property to be free of chattels such as furniture, any rubbish or personal items at the time of completion.
If at the initial inspection of the property there is significant rubbish on the property, we recommend a special condition be inserted in the contract before the parties sign the contract requiring the seller to remove any rubbish before settlement.
For a majority of contracts, the seller is obligated to provide vacant possession on completion. This requires the seller, on or before completion of the contract (settlement day), to remove any items not included in the sale of the property. If items of furniture, rubbish or personal property not included in the contract remains on the property, vacant possession has not been provided.
A final inspection by the purchaser, in the presence of the real estate agent, prior to the completion is required to ensure no undesired items are left behind. This allows the seller another opportunity to remove these items prior to completion. If these items are not removed, the purchaser’s options can include:-
Refusing to complete the contract
Negotiate to retain a percentage of the deposit to cover the cost of removal of unwanted items; or
Commence legal proceedings to recover damages
Remember, as a purchaser you do not want any surprises after completing the contract and paying the full purchase price.
At Everingham Solomons, we can provide you with advice to assist in the smooth running of your conveyancing transaction because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Most people only seek legal advice for problems when they arise – when going through a divorce or after an accident for example. But what if your lawyer is like a best friend you didn’t know you needed?
If you consult a lawyer BEFORE a legal issue arises, they can help you anticipate and prevent serious legal problems, saving you a lot of money and heartache in the long run.
If you’ve never worked with a lawyer before, some common situations where getting legal advice from a lawyer may be necessary include:
• The sale or purchase of a house, property or business
• An accident involving personal injury or property damage
• A family problem such as divorce or a child custody dispute
• Workplace disputes including discrimination or harassment on the job
• When you are starting a business
• The drafting of a will, trust, or estate plan
So when should you talk to your solicitor? It is best to communicate with your conveyancer/solicitor as soon as you have decided to embark on a new venture.
For example if you plan to purchase a property – you should get your solicitor to review the contract before you sign it. Otherwise you may encounter problems of not completing the contract on time, or there may be disputes over inclusions which were not itemized on the contract prior to exchange. These and many other problems can be avoided if the purchaser consults with their conveyancer/solicitor from the very beginning.
Another example is when you are selling a property. By law you must have a contract of sale drafted BEFORE you market a property. A marketing contract is provided to your real estate agent for the purposes of advertising your property. However, if your property has been on the market for a long time or you choose to put the property up for auction. Before doing so, your marketing contract should be reviewed as there could have been legislation changes that affect the marketing contract. If the agent uses the outdated marketing contract as the auction contract and proceeds to auction. This can cause issues for the vendor allowing a purchaser to withdraw from the contract up to the time of settlement. This can have devastating consequences and costs for the vendor.
Another time that is especially critical to see your solicitor first is when purchasing a business. Once committed, it is very difficult or costly to change business entities if you have not selected the most tax-advantageous business structure. Related issues such as the transfer of employee entitlements again can be very costly if not adequately covered in the initial negotiations.
At Everingham Solomons, we have the expertise in Property Law, Business Law, Family Law, Wills and Estates to help you make the right decisions. The sooner you speak to us, the more we can help because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
After your funeral and your family has had time to process the loss of a loved one, it is necessary for the executor to deal with the deceased’s assets and liabilities.
As land is involved and a Will was made, Probate will need to be obtained. This is a document issued by the Supreme Court acknowledging the validity of the deceased’s Will and authorizes the executor/s to administer the Estate.
If a Will was not left, the next of kin of the deceased will need to apply for Letters of Administration. This is a document issued by the Supreme Court authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules.
The executor needs to contact the Bank to advise of the death and provide certified copies of the Death Certificate and Probate in due course.
There are three ways you can hold land in NSW and transfer the land.
They are:-
Sole Owner
The deceased holds land only in their name. The land will be dealt with as part of the deceased’s Estate. Subject to the deceased’s Will, the land may be sold or left to a beneficiary. If left to a beneficiary, a new loan needs to be prepared. Written consent from the Bank needs to be obtained prior to the land being transmitted to the beneficiary. A Transmission Application form is required to be lodged with NSW Land Registry Services through the electronic conveyancing platform called PEXA.
Joint tenant
The deceased and another person holds the land as joint tenants. This is the most common way married or de facto couples own land. Whilst each person holds an individual interest in the land, when one person dies, the legal concept of “survivorship” takes place. That is, the interest of the deceased person will automatically pass to the surviving joint tenant. The land does not form part of the deceased’s Estate. The surviving joint tenant needs to speak to the Bank about continuing on the mortgage payments and the Bank needs to provide their consent prior to the lodgement of a Notice of Death form to NSW Land Registry Services by PEXA.
Tenants in Common
The deceased and another person are co-owners of the same land holding as tenants in common in equal shares or hold an unequal share, for example 80/20. When a person dies their individual share in the land does not automatically pass to the other surviving owners. Instead, the deceased person’s share in the land will form part of their Estate and be distributed in accordance to their Will or if they did not leave a Will, by the laws of intestacy. If the land is not to be sold but instead to be transmitted to a beneficiary, the beneficiary needs to prepare new mortgage documents. A Bank’s written consent needs to be provided prior to lodgement of Transmission application to NSW Land Registry Services by PEXA.
At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Solicitors Trust Accounts are regulated by the Legal Profession Uniform Law (NSW), Legal Profession Uniform Law Application Act 2014, the Legal Profession Uniform Law Application Regulation 2015 and Legal Profession Uniform General Rules 2015.
These laws are in place to regulate the conduct of money held in Trust for clients. Such money might include funds required to settle property purchases, to pay stamp duty, probate filing fees, for distributions in deceased estates, for debts recovered, for settlement of claims, or funds required to pay legal expenses.
Trust accounts are subject to external examination every year, as well as periodic random audits by the Law Society’s Trust Department. These external examiners and auditors will check transactions through the Trust accounts to ensure they comply with the Regulations.
Solicitors are required to have written instructions to transfer funds from the Trust account. Often these instructions are incorporated into the Costs Agreement the firm enters into with the client.
Contrary to a common misconception, Solicitors do not earn any interest on clients funds held in their Trust account. In this state, all interest earned on funds in Solicitors Trust accounts are paid directly to the Law Society of New South Wales.
Clients may direct, if a significant amount is involved for a lengthy period, that their Solicitor deposit their Trust funds into a Controlled Money account to earn interest whilst funds remain under the control of the Solicitor.
On completion of a matter where Trust transactions have occurred, a Solicitor is required to provide a Trust Statement to the Client. On 30 June each year, subject to some exceptions, a Solicitor is required to provide Trust Statements to all Clients where there has been Trust transactions within the preceding 12 months.
Should you have any queries about Trust accounts, we would be happy to discuss them with you because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
You’ve been saving hard and have the deposit to purchase your first home. You’ve looked at many houses and finally found the one. You’ve made an offer through the real estate agent and your offer has been accepted by the vendor.
You organize your pest and building reports. You know your finance is arranged as you’ve been pre-approved by your chosen lender. WRONG!
A pre-approval of finance from a lender is only an “indication” of the amount the lender considers you may borrow based on your previous financial circumstances.
Until you make a formal loan application for the house you have chosen and subsequently you receive written confirmation of finance approval from your lender noting the details of the house you intend to purchase plus a signed loan offer, the lender is under no obligation to provide you with finance.
If you were to exchange contracts based on the “pre-approval letter”, you may not be able to complete your purchase as the finance has not been formally approved for that house.
Not being able to complete your purchase may result in the vendor being able to terminate the Contract, keep your deposit, sue you for any shortfall in the price upon resale of the property (if any) and also sue you for costs and expenses associated with your inability to complete the Contract.
Once your offer has been accepted, you need to make an appointment with your lender as soon as possible to complete a loan application for your chosen home. In most cases, your lender will arrange for a valuation of the property to be carried out to ascertain whether it will provide them with adequate security for their loan.
Many lenders need to submit your loan application to their mortgage departments located either in Sydney, Melbourne, or Adelaide. With Covid-19 in the mix, this takes time so you need to contact your lender quickly as this will enable you to safely exchange contracts and secure the property you wish to buy.
Some lenders provide a letter stating your loan has been approved subject to various conditions set out in the loan contract. This means you must wait to see the loan contract document to find out what terms and conditions you must comply with before the loan will be approved.
At Everingham Solomons, we take our role of protecting your interests very seriously. We work hard to help you secure the home you wish to purchase and make sure you do not end up in the position where you risk incurring a significant financial loss because you were unable to complete your contractual obligations. It might seem like it can take a long time before contracts are exchanged, but it’s all in the interests of looking after you – our client, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Buying or selling real estate is an exciting prospect. The actual process of transferring ownership in land can be quite daunting for many people. Sometimes a buyer/seller of property has difficulty understanding conveyancing terms their solicitor/conveyancer uses.
The following are some commonly used terms you will encounter when buying or selling property in NSW:-
Vendor: the owner of the property
Purchaser: the buyer of the property
Mortgagee: the Bank providing monies to a person for the purchase of property
Mortgagor: the person borrowing the money from the Bank to purchase the property
Offer: The price the purchaser puts to the vendor (usually through a real estate agent) for the property. Vendor acceptance of the offer does not mean the purchaser has entered into a contract to purchase the land, as this happens on exchange.
Contract for Sale of Land: a document prepared by vendor’s solicitor/conveyancer evidencing the legal agreement between the vendor and the purchaser
Deposit: a sum usually 10% of the purchase price payable to the real estate agent on exchange as a vendor safeguard. The deposit is held by the agent until settlement at which time it is released to the vendor.
Bank Deposit: Your bank may require you to have 20% deposit representing the amount of your savings before it will lend to you.
Exchange: Is when a duplicate copy of the Contract is signed by each of the parties and the documents are “”swapped” so the vendor has a copy of the contract signed by the purchaser and vice versa. Once exchange has occurred, the parties are contractually bound and are unable to pull out of the sale/purchase without suffering serious consequences.
PEXA: stands for “Property Exchange Australia”. It is an electronic settlement system for property transactions including payment of settlement monies, duties, taxes, and any other disbursements and the electronic lodgment of dealings to the Land Registry.
Client Authorisation: a form signed by the vendor/purchaser authorizing their solicitor/conveyancer to act for them in the online workspace of PEXA.
Verification of Identity (VOI): Each vendor/purchaser will need to provide identification documents i.e. passport, driver’s licence, medicare card, birth/marriage certificate to their solicitor/conveyancer for identifying the parties to the transaction.
Completion period: The time between exchange and settlement. The vendor usually stipulates a period between 28 days and 42 days for completion to occur.
Settlement/Completion: the day when ownership of the property is transferred from the vendor to the purchaser. The purchaser supplies the balance of monies to pay for the property (taking into account the deposit already paid) and the vendor provides the documents required for the purchaser to be listed as the registered proprietor of the property. This all takes place on the PEXA platform in most circumstances.
Congratulations: the words you will hear from your dedicated Everingham Solomons solicitor/conveyancer once your sale/purchase has been completed because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Land is the main focus of property law. Each state in Australia has a different regime for the regulation, procedure and compliance. It is a largely statute-based area of the law but can still be influenced by the common law and principles that originated from Australia’s history as a colony of the United Kingdom, where land and estate law developed through the ambit of feudalism.