Purchasing real estate – is a final inspection necessary?
A final inspection is arranged by a purchaser with a Real Estate Agent to inspect a property prior to completion. The purpose of this inspection is to ensure the improvements and inclusions have not been damaged or removed since contracts were exchanged and the property has been left in a clean and tidy condition.
There have been instances where improvements and inclusions have been removed, damage has occurred due to vandalism or removalists, or the property has been left in an unsightly and dirty condition. A purchaser has very little recourse once completion (i.e. handing over the balance of settlement monies in exchange for the title deeds) has occurred to rectify the situation. In our opinion a final inspection is essential.
If a property is being purchased with vacant possession, it is recommended the purchaser contact the selling agent a few days before completion to arrange a suitable time to carry out the final inspection, however you should not do your final inspection until the occupier has vacated the property.
For an investment property subject to tenancy, it is recommended the purchaser should contact the selling agent at least four or five days prior to the completion as under the Residential Tenancy Agreement, a tenant must be given reasonable notice by an agent.
Once the final inspection with the agent has been completed, the purchaser will need to advise their solicitor/conveyancer of the outcome. If any problems are encountered, the purchaser should inform their solicitor/conveyancer of the defects and, on the advice then given, instruct them on how you as the purchaser would like the matter to proceed. If the final inspection is satisfactory, the purchaser will then instruct their solicitor/conveyancer to proceed to completion.
The importance of a final inspection is to ensure that once you have obtained the keys and departed with your hard earned money, there will be no unwanted surprises.
At Everingham Solomons, we have the expertise to assist you in your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Settlement, or the Completion Date under a Contract, is essentially the day a Purchaser hands over the money to buy a property and in return is provided with the title documents and the keys.
In New South Wales settlement takes place in one of two ways:
In person via a paper settlement – this is still the most common way for settlements to proceed. It involves the legal representatives for each party (the buyer and the seller) as well as their banks meeting in person at a scheduled time. At this meeting the title documents and bank cheques are exchanged between the parties. The Certificate of Title, Transfer and any Discharges of Mortgage or new Mortgages are then sent to the Land Registry for registration.
PEXA/Online settlement – the online settlement portal allows for a settlement to take place electronically without the need for the parties to physically meet. Funds are transferred electronically and the title to the property is transferred into the new owners names immediately on settlement.
What do you need to do to prepare?
Usually the settlement date is a set number of days after the exchange of Contracts, usually 42 days (6 weeks), so hopefully you have had plenty of time to prepare.
For a Vendor (owner) – you need to vacate the property prior to the settlement date. The property should be left in a neat and tidy condition inside and out. You should also contact your service providers (electricity, gas etc) and let them know you are moving. Your insurance for the property needs to stay in place until after settlement.
For a Purchaser (buyer) – you will need to do a final inspection of the property prior to settlement. This is essentially your ‘last look’ at the property before handing over the purchase money. The property should be neat and tidy and in the same condition it was when you made your offer. The final inspection is arranged through the selling agent who will meet you at the property.
Insurance – the Purchaser needs to take out an insurance policy for the replacement value of the property that is effective from the time that settlement takes place. If you are obtaining finance to assist with the purchase your bank will probably specify a figure that they want the property insured for. They will also require the bank’s name to be noted on the policy as mortgagee.
Prior to settlement the Purchaser should contact their preferred service providers and arrange the connection of utilities on the settlement date.
What can go wrong?
Unfortunately there are times when settlement doesn’t take place on the due date. This can be for many reasons, sometimes it is simply a matter of a document not arriving on time. Rest assured your Solicitor or Conveyancer will do everything they can to avoid delays to settlement, we know you are keen to move on or move in!
When can I have the keys?
As soon as settlement takes place your Solicitor or Conveyancer will let you know. You can then collect the keys from the selling agent and move in.
Are you looking to buy or sell a property? Speak with our Property Law team today at Everingham Solomons because we have the expertise & experience to assist you in your property transactions because Helping You is Our Business.
An easement is, put simply, the right of one landowner to use land belonging to another.
In the recent Supreme Court case of Pullen v Smedley, the court was asked to take a close look at the rights and obligations of rural landholders affected by easements.
Pullen had a particular type of easement known as a right of way across Smedley’s farm. It was Pullen’s only way of accessing the main road. Along the right of way there were five sets of gates designed to allow cattle to be rotationally grazed around Smedley’s farm.
A dispute arose because Smedley wanted the gates to be kept shut, whereas Pullen wanted them open so he didn’t have to get in and out of the car ten times before he hit the main road.
As is often the case the neighborly relationship broke down and a number of other issues were raised. Pullen complained about the Smedley’s cattle grazing the right of way and Smedley complained about Pullen constructing a gravel road along it without approval and using fill containing asbestos.
The court, after considering the issues, sided mostly with Smedley, holding that:
It was a trespass for Pullen to construct a substandard road without approval and the dumping of asbestos constituted an offence under environmental legislation.
The fact that Smedley’s cattle grazed and crossed the right of way was not an actionable interference, so the grazing could continue.
Neither the presence of the gates along the right of way, nor the insistence that they be kept shut, constituted any real or substantial interference with Pullen’s use of the right of way.
Accordingly, like many before them, Pullen was sternly ordered to ‘leave the gate as you found it.’
If you have any enquiries relating to rural property, contact Everingham Solomons because Helping You is Our Business.
One area of recent reform to the Victorian Residential Tenancies Act is aimed at providing tenants with clear rights in relation to the keeping of pets. Currently, the Victorian Act permits landlords to include a ‘no pets’ clause in their residential tenancy agreements. However, changes to the Victorian Act will prohibit such clauses. Whilst tenants will still be required to obtain landlord’s consent, such consent cannot be unreasonably refused.
But what are the rights of landlords and tenants in New South Wales?
The NSW Residential Tenancies Act is silent in relation to allowing, prohibiting or requiring consent for the keeping of pets. Most landlords will include a term in their residential tenancy agreement whereby the keeping of pets is prohibited without their consent. Such a term is currently not prohibited in NSW. The result is that the consent of the landlord is at the landlord’s sole discretion, except in relation to assistance animals.
The standard form residential tenancy agreement published by NSW Fair Trading stipulates, as an additional term, that “The tenant agrees not to keep animals on the residential premises without obtaining the landlord’s consent”. The standard form also provides that “The landlord agrees that the tenant may keep the following animals on the residential premises:”. These additional terms can be deleted upon approval by the landlord and tenant at the time of entering into the agreement. It is therefore important that both the landlord and tenant understand the terms of their agreement at the time of entering into the agreement.
Accordingly, the keeping of pets in residential rental properties in NSW is, in most instances, at the sole discretion of landlords and tenants, except where a strata scheme is involved. Most strata schemes will have a by-law restricting animals without the owners corporation’s consent or a by-law prohibiting animals altogether.
For tenants entering or currently in the rental market who are considering or already have a pet, the RSCPA makes several recommendations in facilitating a pet-friendly rental. For instance, preparing a pet resume with information on the pet together with references including previous landlords and supplying images of enclosures for birds or pocket pets.
One of the major concerns landlords have when considering consenting to the keeping of pets is the potential for property damage. One of the major concerns for tenants is having freedom within their rental property. Understanding each other’s concerns and obligations, and addressing potential issues at the outset may alleviate potential disputes.
For all your property needs, contact Everingham Solomons because Helping You is Our Business.
Click here for more information on Jessica Wadwell
When deciding to sell residential property, whether you list with a Real Estate Agent or you intend to sell privately, the law requires that you have a copy of the proposed Contract for the sale of the property available for inspection by a prospective purchaser. The Contract must have prescribed documents as set out in the Conveyancing Act before it can be signed by a Purchaser. If Contracts are signed and exchanged without the relevant prescribed documents being attached, the purchaser may have a right of rescission (able to get out of the Contract).
You should contact your Solicitor or Licensed Conveyancer who will assist in preparation of the proposed Contract. In addition to various prescribed documents additional documents may be required.
Things to consider:-
Is there a Swimming Pool? If so, you should ensure that the Swimming Pool is registered on the NSW State Government NSW Swimming Pool Register. You should also ensure that you have a current Swimming Pool Certificate of Compliance – these remain valid for 3 years so if you either haven’t obtained a Swimming Pool Certificate of Compliance or have one which is expired or close to expiry you should arrange for this to be obtained as soon as possible.
Has any residential building work as defined in the Home Building Act been carried out in the last 6 years? If yes and the cost the building work is over $20,000.00 then a Home Building Compensation Fund (HBCF) Certificate of Insurance should be attached to the Contract. If this is not attached to the Contract or subsequently provided to a Purchaser prior to settlement a Purchaser may have the right to get out of the Contract at any time prior to completion.
Where Council approval is required you should ensure that it has been obtained and an Occupation Certificate issued by Council or an Accredited Certifier which should also be attached to the Contract.
Anything you do now to prepare your property for sale, both from an appearance and contractual point of view, may ultimately save you time and effort when it comes to selling your property and may mean that Contracts are exchanged sooner rather than later.
There may be other issues that should be identified in a Contract. To avoid issues between exchange and settlement, see your Solicitor or Licensed Conveyancer without delay.
At Everingham Solomons, we have the expertise to assist you in all of your property transactions because, Helping You is Our Business.
If you wish to purchase land you are required under the Duties Act 1997 to complete a Purchaser/s Declaration. This Declaration is completed by each person entering into a transaction that results in the acquisition of an interest in land in New South Wales.
The purpose of this Declaration is:-
* Commonwealth Reporting Requirements is to collect and report to the Australian Taxation Office information on transfers of land in NSW;
* Surcharge Purchaser Duty is to inform the Duties Office whether a transaction is subject to surcharge purchaser duty; and
* Surcharge Land Tax is to identify foreign persons for surcharge land tax purposes.
The supporting evidence required for an individual purchaser/transferee are:-
* If an Australian citizen, a certified copy of your Birth Certificate or Australian Passport or Australian Citizenship Certificate.
* If a New Zealand citizen, a certified copy of New Zealand Passport and evidence of holding a special category visa within the meaning of Section 32 of the Migration Act 1958.
A person who is ordinarily a resident in Australia requires:
* Certified copy of Foreign Passport with your current visa
* Movement records from immigration for the 12 month period preceding the date of agreement.
It is therefore important to bring your original Birth Certificate (or equivalent document mentioned above) when meeting with your solicitor/conveyancer for a transaction involving acquiring an interest in land.
At Everingham Solomons, we have the expertise to assist you in your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
In a recent Supreme Court of Queensland decision, the Court held that the real estate agent was liable for the representations it had made to a purchaser which were found to be false.
The Court proceedings related to the sale of a shopping centre. The purchaser alleged that the information provided about the financial performance of the shopping centre was misleading and false
The purchaser requested information regarding the shopping centre. The agent sent a number of emails together with an Information Memorandum to the purchaser containing information about the net rentals for the centre, the rent payable under each lease and estimates of outgoings. The agent also made additional verbal representations to the purchaser during the sale process.
In reality the shopping centre was not performing well and this was not disclosed.
The purchaser claimed that it relied upon the information in the Information Memorandum and the additional representations made by the agent to induce it to purchase the shopping centre.
Interestingly, the Information Memorandum contained a formal disclaimer indicating that the information in the Information Memorandum had been provided by the seller and the agent had not independently checked the information and had merely passed it on and as a consequence the purchaser should rely on their own enquiries.
It was relevant that this disclaimer was at page 39 of the document.
The general rule is that an agent will not have engaged in misleading or deceptive conduct where it has merely passed on information from the seller without adopting or endorsing it.
In this recent Queensland decision, the Court found that the real estate agent had clearly adopted the information and represented it as its own and in this regard had displayed its logo on each and every page of the Information Memorandum.
Further in discussions with the purchaser, the real estate agent made statements which went well beyond the information in the documents and endorsed and amplified the financial information which was in fact false.
The Court found that the agent had made certain representations itself rather than simply passing on the information supplied by the seller.
The disclaimer clauses were not effective to alert a reasonable person in the purchaser’s position that the information in the document was simply being passed on.
Judgment was awarded against the agent for $1.6 million plus costs.
At Everingham Solomons we have the expertise to assist you in all of your property and commercial matters because Helping You is Our Business.
Two schemes currently exist for First Home Buyers. One is a grant of $10,000 and the other is a Stamp Duty Exemption.
First Home Buyers Assistance Scheme – (Stamp Duty exemption)
For both new and existing homes – you will not pay stamp duty up to a purchase price of $650,000, and you will get a concession from stamp duty if your purchase price is between $650,000 and $800,000.
The usual stamp duty on $650,000 is $24,760 – a huge saving!
Vacant land – you will not pay stamp duty up to a purchase price of $350,000, and you will get a concession from stamp duty if the purchase price is between $350,000 and $450,000.
The usual stamp duty on $350,000 is $11,260.
First Home Owner Grant (New Homes) Scheme – (Grant)
A grant of $10,000 is available for the purchase of new homes with a purchase price up to $600,000. For Contracts to build or owner builders the price can be up to $750,000. A new home is a home that has not been previously occupied.
Am I eligible?
You must satisfy the following requirements in order to receive the Grant or Exemption:
The purchase must be for the whole property
All purchasers must be ‘eligible purchasers’ – a person (not a company), over 18 who has not (and whose spouse/de facto has not) previously owned residential property or received an exemption or concession under the old First Home—New Home Scheme.
At least 1 eligible purchaser must occupy the home as their principal place of residence for a continuous period of 6 months, within the first 12 months after completion. The residence rule however may not apply for those in the armed forces
Note: If not all purchasers are first home buyers you may still qualify for a concession under the shared equity arrangements. Provided that the eligible first home buyer buys at least 50% of the property then you can get a pro-rata concession.
Thinking of buying your first home? Contact the Property Team at Everingham Solomons because Helping You is Our Business.
Are you wanting to sell or buy land in NSW? From 1 May 2016, the NSW Land and Property Information (LPI) under Section 12E Conveyancing Rules of the Real Property Act 1900, announced the Verification of Identity Standards (VOI Standards) will be applied to all land transactions. Without a VOI you cannot buy or sell land.
Verification of Identity (VOI) is a process to identify a party/parties to a conveyancing transaction. The VOI framework has been introduced to reduce fraud and improper land dealings.
So what does this mean for you if you are selling or buying property in NSW? When you visit your solicitor/conveyancer, you will need to provide original up-to-date identification documents to enable your solicitor/conveyancer to take reasonable steps to identify you when acting on your behalf in a property transaction.
These requirements include a face-to-face interview and the production of certain identification documents. A photograph is taken of yourself together with your documents. There are 6 categories, however, the majority of people utilise the following categories:-
Category 1:
Australian/Foreign Passport
Plus Australian Driver’s Licence/Photo Card
Plus Marriage Certificate/Change of Name if necessary
Category 2:
Australian/Foreign Passport
Plus full Birth/Citizenship/Descent Certificate
Plus Medicare/Centrelink/Department of Veterans’ Affairs Card
Plus Marriage Certificate/Change of Name if necessary
Category 3:
Australian Driver’s Licence/Photo Card
Plus full Birth/Citizenship/Descent Certificate
Plus Medicare/Centrelink/Department of Veterans’ Affairs Card
Plus Marriage Certificate/Change of Name if necessary
The VOI is valid for a period of 2 years. If you buy and sell property frequently, the VOI process is only required once every 2 years if you remain with the same firm of solicitors/conveyancers.
If you are unable to visit your solicitor/conveyancer due to distance, you have two options. The first option is downloading an app onto your phone or tablet and following the apps instructions. The second option is attending at a participating Australia Post outlet. Your solicitor/conveyancer will be able to provide you with the relevant information and forms required for these two options.
At Everingham Solomons, we have the expertise to assist you in all your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Buying a house is an exciting time however if you have not purchased a home before, or haven’t for a while, it is hard to know where to start, or how it all works! This short guide will help you through – from making your offer to buy, to a legally binding Contract.
Finance – one of the first things you should do is talk to your bank or finance broker. They will tell you how much you can borrow, the deposit you will need and what your repayments will be.
Research – get to know the property market. Look at properties sold in your area and attend open houses. Get to know real estate agents and let them know what you are looking for.
Offer – once you find your perfect place, make an offer! It is important to note at this stage you are not bound to buy the property and the seller is not bound to sell it to you, even though they have accepted your verbal offer. Both parties can change their mind, and should a higher offer be made the seller can certainly take it.
Advice – now that your offer has been accepted it is time to get some advice. Find a property Solicitor or Conveyancer to guide you through the process.
Inspections – these may include Pest and Building inspections, Survey report and inspection of Council’s records. It is ‘buyer beware’ – so make sure you know as much as possible about the property you are buying before you commit to the purchase.
Deposit – usually 10% of the purchase price. This can be paid any time after your offer is accepted. The deposit is usually held by the selling real estate agent. You will get your deposit back if you don’t proceed to exchange.
Contract – the Contract will be sent to your Solicitor/Conveyancer and you will then meet with them to go through the Contract.
Exchange – Once you have signed the Contract, are happy with your inspections and have formal approval of finance you are ready to exchange. Exchange is when both parties are officially ‘locked in’ to the purchase. Once you exchange you will also then know the settlement date – the day you get your keys!
Buying or Selling? Contact the Property Team at Everingham Solomons because Helping You is Our Business.
Purchasing real estate – is a final inspection necessary?
What is settlement?
