What Exactly is Conveyancing?

Date: Jul 02, 2009
Document Type: Newsletter

Conveyancing is a legal term for legal transactions involving real estate. It can involve buying and selling, financing, leasing and other areas such as subdividing and the creation of easements and covenants. Australia has one of the highest percentages of home ownership in the world, so many of us will be involved in a conveyance during our lives.

 

Australia initially inherited the British land titles system, which involved checking previous transactions on the piece of land in question, and making sure they were all properly documented. It could be a long, arduous and therefore expensive process.

Relief was at hand, however, and in the 1860's, Sir Robert Torrens, a Scotsman who was the Surveyor-General of South Australia, invented what we know as the Torrens title system. It involves the issue of a government guaranteed title certificate, which lists the owner, any matters affecting the title such as mortgages and leases, and defines the land position and dimensions by reference to a registered plan.

Today the vast majority of land in New South Wales is Torrens title, and simple conversion methods are available for land still under the old system - funnily enough, still called Old System title!

Subject only to a few exceptions, what the title deed states is it, so the new system offered both simplicity in conveyancing and certainty. What Sir Robert did not know was how suitable for computerisation his invention would be. The New South Wales Land titles registry is now highly computerised, and in fact its systems and programmes are exported.

Anyone can do their own conveyancing, but only lawyers or licensed conveyancers can carry out conveyancing for reward.

What does your lawyer do for you during a conveyancing transaction?

If you are selling a property your lawyer will prepare a contract, which must be available for prospective buyers to look at. The contract has to have some searches and certificates attached, so it is not something which can be prepared overnight.

Once a buyer is found, the lawyer sends a contract with the specifics such as buyer's name and sale price to the buyer's lawyer. The buyer will usually have to obtain pest and building reports, and a final finance approval, and then contracts are exchanged.

Exchange is the time at which a binding contract comes into existence, with a deposit being paid. The term �Exchange� is used because that is exactly what happens - the buyer receives a copy of the contract signed by the seller, and the seller receives one signed by the buyer.

The buyer's lawyer will make the remaining searches of various agencies to make sure the property is not adversely affected by some plan or zoning, and will send a list of questions, called requisitions on title, to the seller. The buyer's lawyer will also attend to paying Stamp Duty, and providing a lender with the details needed to prepare any mortgage. At the same time, if there is an existing mortgage on the property the seller's lawyer will make sure that the lender is ready to have that loan repaid, with the necessary documents signed.

Finally, the two lawyers or their representatives and the financiers will all meet, cheques and title deeds will be collected, and the buyer and the seller will hopefully enjoy the next stage of their lives!

Sounds simple, doesn't it, but often there will be some glitch or other. Even co-ordinating all involved to be at the same place at the same time can be surprisingly difficult. But that is what you pay your lawyer to look after for you!

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