Land Law…What is it?

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.

Head-to-Head: Solicitors v Conveyancers

Headshot of Terry Robinson - Accredited Specialist and General Counsel at Everingham Solomons TamworthIt’s the age-old question, who do you get to act for you in a property transaction?

Can you use a Conveyancer or do you need a Solicitor?

If you are dealing with a simple transaction, then the short answer is you can use either.

Licensed Conveyancers are professionals who are registered with NSW Fair Trading and have a formal qualification relevant to this area of practice.
Solicitors are professionals who must have formal qualifications (minimum of a Law Degree and Graduate Diploma) and hold a current practicing certificate with the NSW Law Society. They must also hold significant professional indemnity insurance.

Can they both do the job for you? Absolutely.

However, there are many benefits of engaging a firm to act for you who has access to both Conveyancers and Solicitors.

Simply put, if you retain a legal firm, you will get an all-in-one service. If the matter goes wrong or you need to take legal action, you won’t have to take your matter to a legal firm. This will save you from having to go through the additional cost and process of instructing another person, this time a Solicitor, and providing all of the details of your case.

Solicitors will know your legal rights as well as the Court process, have the skills to negotiate (with a view to settling a dispute) and they can represent you if the matter proceeds to Court.

Solicitors will also be able to assist with many other things that usually go hand in hand with property transactions like providing advice on the purchasing entity. Should I use a company or trust? Is the transaction subject to GST or is there an exemption? Is capital gains tax payable and are there any concessions? They can also provide advice on loan and mortgage documents, tax implications, leasing issues and estate planning. Do you need to change your Will and/or power of attorney in light of your property transaction? Unfortunately, Conveyancers are very limited in what advice and services that they can give to you.

Everingham Solomons has both Licensed Conveyancers and Solicitors on our team, so you get the best of best worlds, because Helping You is Our Business.

Click here for more information on Terry Robinson

Hot Property: Know your cooling off rights

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthIf you have sold or purchased property before, you may be familiar with what is known as the “cooling off period”. The cooling off period is five business days following exchange of Contracts whereby a purchaser is permitted to withdraw from the Contract for any reason and rather than forfeiting 10% of the purchase price, the purchaser only forfeits 0.25% of the purchase price. For off the plan Contracts, the cooling off period is ten business days following exchange of Contracts.

The cooling off period only applies to Contracts for the sale of residential property. For the purposes of the cooling off period, residential property is defined as land with no more than two places of residence or vacant land which allows for the construction of a single residential premises. The area of the land must be no more than 2.5 hectares.

Despite a property being residential property, there are certain cases when there is no cooling off period. For instance, if the cooling off period is waived, if the property is sold by public auction or the Contract is exchanged on the same day as the public auction but passed in, or if the Contract is exchanged in consequence of the exercise of an option.

The cooling off period can be extended by a provision in the Contract or by the vendor in writing prior to the expiration of the period. The period may also be shortened by written or oral agreement by the parties, or it may be waived by the purchaser. For the purchaser to waive the cooling off period, the purchaser’s solicitor or conveyancer must provide what is known as a Section 66W Certificate.

In country areas such as Tamworth, it is normal for the vendor to request the cooling off period be waived as Contracts are rarely exchanged by the real estate agent. If you are purchasing in an area of high demand, you may need to exchange with the cooling off period to prevent the loss of the property to another purchaser whilst still allowing yourself the opportunity to consider the purchase further.

You should always seek legal advice before signing or entering into a Contract. For efficient and expert advice, contact Everingham Solomons where Helping You Is Our Business.

Click here for more information on Jessica Wadwell

The implications of incorrectly spelling your name

Headshot of Suzanne Hindmarsh - Conveyancer at Everingham Solomons Tamworth

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:-

  1. 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
  2. Marriage (or breakdown of marriage) where the seller has changed their name since purchasing the property or shares
  3. 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
  4. Testators/donors providing misspelt names of their executors, beneficiaries and attorneys.
  5. 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
  6. 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.

Can a landlord sell their property while occupied by a tenant?

Headshot of Nick Hawkins - Solicitor at Everingham Solomons TamworthA landlord of a residential premises is permitted to sell their property even while it is currently being occupied by a tenant. However, the landlord must comply with certain requirements of the Residential Tenancies Act 2010 (NSW) to prevent interfering with the tenant’s right of occupation of the property.

The landlord is required to provided notice of the sale of the property to the tenant. The notice must be given by the landlord, or their real estate agent, to the tenant at least 14 days before any potential purchasers are allowed to inspect the property. If this preliminary notice is not given to the tenant, the landlord has no right to access the property for the purposes of conducting an open house or allowing potential purchasers to inspect the property.

If the notice is provided to the tenant, then both the landlord and tenant must come to an agreement as to the days and times that the property will be available for inspection by potential purchasers. The tenant must not unreasonably refuse to make the property available for inspections; but, they are also not required to agree to allow more that two inspections a week. As long as proposed inspection times are reasonable, i.e. during daylight hours and not schedule for an excessive period of time, then there are no further requirements that the landlord must observe. It is up to both the tenant and landlord to reach an agreement that works for both parties.

If you require further assistance regarding any tenancy issues or advice in relation to the sale of your property, then contact a solicitor at Everingham Solomons because Helping You is Our Business.

Click here for more information on Nick Hawkins.

Who’s that knocking at my door?

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthLeases give a Tenant a right to exclusive use of a property. More simply they get a legal right to solely occupy and use a property as if it is their own. This means that no other person is allowed to occupy or enter a property without the consent of the Tenant.

So, what happens when the Landlord or their agent needs to get in for some reason?

Generally, a Landlord may need to enter a property so that repairs or inspections can be conducted, because the property is for sale or to comply with health and safety requirements.

In order to do this, they will need the consent of the Tenant.

Landlords and their agents also do not require consent if they are entering the property because of an emergency, to carry out emergency repairs or if they genuinely believe that the property is abandoned.

However, there are circumstances in which the Tenant’s consent is not required, if the Landlord has given a certain amount of notice to the Tenant.

The notice period in which a landlord is required to provide a tenant varies and comes down to the reason for which access is sought.

Here are some common reasons why a landlord might seek access and the required notice periods under the Residential Tenancies Act:

To complete an inspection:                                         7 days (Max 4 times in 12 months)

Carry out necessary repairs:                                      2 days

To comply with WHS obligations:                               2 days

To obtain a property valuation:                                   7 days

To take photos to advertise property for sale:            Reasonable notice (max once in 28-day period before marketing)

To show potential buyers:                                          14 days

You can, of course agree to waive the required notice period.

There are also some conditions in which a landlord or their agent is required to uphold. Normally, access is not allowed on Sunday’s, public holidays or at unreasonable times. They are also not allowed to stay in or on the property longer than is necessary to carry out their task.

At Everingham Solomons we have the expertise and experience to assist you in your leasing needs with our Accredited Specialist in Property Law on hand because Helping You is Our Business.

Click here for more information on Sarah Rayner.

What is Vacant Possession?

Headshot of Suzanne Hindmarsh - Conveyancer at Everingham Solomons TamworthWhen 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.

Changes to NSW Stamp Duty

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthThere have been some recent announcements with respect to the Stamp Duty system in NSW.

The main change being the introduction of the First Home Buyer Choice scheme but there are also a couple of other changes.

First Home Buyer Choice Scheme

The Government has announced a new scheme for First home buyers which is due to commence in 16 January 2023.

The scheme will allow first home buyers an option as to whether they pay stamp duty on the dutiable value of the property or they opt into pay an annual property tax for as long as they own the property.

The property tax is calculated based on the use of the property, with it being calculated at a lower rate if the purchaser is living in the property.  Higher rates apply if you are purchasing the property as an investment.

Certain eligibility criteria will apply to this scheme.

It is important to note that this scheme is in addition to the other NSW First Home Buyers’ schemes and that the schemes/ grants can be used together in some circumstances.

Intergenerational Transfers (Primary Production)

In NSW there is an exemption from stamp duty for a transfer of primary production land to a relative that has the intention of carrying on the primary production activities, subject to meeting several eligibility criteria.

Previously, the person acquiring the property had to be an individual. Now the exemption will apply when transferring to companies, trusts, self-managed super funds, and the like providing that a link can be established between the entity and the person eligible to receive the exemption.

This allows for the next generation of farmers to carry on the farming using these structures.

Surcharge Purchaser Duty

Landowners will now also be eligible to apply for a refund of surcharge Purchaser Duty paid, if the Land is used wholly or predominately for commercial or industrial purposes rather than residential purposes.

For further information on the changes to Stamp Duty in NSW or just assistance with Stamp Duty generally, contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.


Building disputes – you need to act fast

Headshot of David Southwood - Solicitor at Everingham Solomons TamworthHave you got genuine concerns about residential building work that has been done at your property? If yes, there are important obligations and timing issues that you must be aware of. If you do not comply with these, your ability to commence proceedings and obtain compensation or relief may be seriously compromised.

  1. Obligation to mitigate – If you discover a defect in building work, you can’t sit on your hands and watch things get worse. The law requires you to take steps to reduce the damage that occurs from the defective work. If you fail to do this, you may only receive compensation for some of the damage, as the law considers that you should have taken steps to protect yourself from avoidable damage.


  1. Obligation to notify builder – Related to the obligation to mitigate, you are also required to notify the builder in writing about the defect within 6 months after the defect becomes apparent. You must not unreasonably refuse the builder access to remedy the defect.


  1. Time limits to commence proceedings – If you wish to commence proceedings about defective residential building work, ideally you should do so within 2 years of completion of the building work and no later than 6 years. If you commence proceedings after this time, your claim will only be considered if you can show there is a “major defect” in the building work.


Proving a “major defect” is a big hurdle. In essence, it requires there to be a defect that will cause the building work to be uninhabitable, unusable or cause its destruction. On the other hand, if you commence proceedings within two years, any reasonable claim for defective work can be considered.


If you have genuine concerns about building work, it is important that you engage a solicitor early to ensure that you comply with the above obligations. If you don’t, your ability to claim compensation or obtain a remedy may be seriously compromised. Everingham Solomons Solicitors has experience in building disputes and is happy to assist you, as Helping You is Our Business.

Click here for more information on David Southwood.

Tips for Purchasing a Property at Auction

Headshot of Nick Hawkins - Solicitor at Everingham Solomons TamworthPurchasing a property at auction has different challenges to buying through a negotiated sale. Many purchasers can find the experience daunting, especially if they are attending an auction for their first property purchase. These are some things you should know before attending any auction:

1. There is no cooling-off period if you buy a property at auction. This means that if you are the highest bidder at the auction you will then have to sign a contract for the purchase on the same day. This makes the purchase binding and you cannot pull out of the contract if you change your mind about buying the property.

2. It is important to speak with a banker or mortgage broker well before attending the auction to obtain preliminary finance approval and ensure you are able to borrow enough to complete the purchase. You will generally have a 6 week settlement period after the auction and you will then be required to complete the settlement and pay the balance of the purchase price. If you don’t begin to organise finance approval until after the auction it is unlikely that your loan will be approved in time and you risk being in default under the contract.

3. In addition to organising finance approval with a bank you need to have enough funds on the day of auction to pay the deposit. A deposit is usually 10% of the purchase price which you will be required to transfer to the real estate agent upon signing the contract immediately after the auction.

4. Before the auction you need to complete all of your own inspections and enquiries about the property so that you are satisfied that it is in an acceptable condition. If you wish to organised pest and building inspections, you should do this well before the auction date. If the pest and building reports reveal hidden damage or termite infestation you will not be able to get out of the contract after signing the contract at auction.

5. Importantly, you should request a copy of the contract as soon as possible from the real estate agent and ask your solicitor to review the contract before the auction. If you are successful at auction you will be bound by whatever conditions are in the contract so it is important to seek advice beforehand. Your solicitor will ensure the contract is fair and complete and will be able to negotiate conditions that you may require in the contract. They can also provide advice as to whether the property will actually be suitable for the purpose you intend to use if for, i.e. will you be able to build a pool in the back yard? Is the property able to be subdivided? What sort of businesses are permitted to be operated on the property?

If you need further advice in relation to any property transactions or you require a solicitor to review a contract before auction, contact a solicitor at Everingham Solomons because Helping You is Our Business.

Click here for more information on Nick Hawkins.