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Conveyancing
Conveyancing is the transfer of ownership of a property from a seller to a buyer.
Usually, the buyer and seller each engage a legal practitioner or conveyancer to handle this process. There are differences in what legal practitioners and conveyancers are legally allowed to undertake on behalf of a client.
Tips:
- Choose a legal practitioner or conveyancer that you feel comfortable with and meets your needs
- Check references and make enquiries about the standard of their services
- Obtain written quotes from several, and discuss all disbursements (administrative costs).
Do-it-yourself conveyancing
If you do your own conveyancing, you will not have a legal practitioner’s or conveyancer’s professional indemnity insurance if something goes wrong. For more information, view Professional indemnity insurance - conveyancers.
There is a lot at stake, so if you are not confident in your ability, use a conveyancer or legal practitioner.
Legal practitioners and conveyancers
When you deal with a legal practitioner or conveyancer, you are protected by:
Legal practitioners
Your legal practitioner can prepare or review all documentation required for a property sale, including your Section 32 statement and the contract.
A legal practitioner:
- must hold a current practising certificate
- can perform general legal work and provide legal advice to their client.
Some legal practitioners also specialise in conveyancing and property law.
Conveyancers
You can engage a conveyancer to prepare or review the Section 32 statement and other legal documentation, such as the contract of sale.
A conveyancer is a person other than a legal practitioner, licensed to:
- undertake conveyancing work
- do legal work or give legal advice about the transfer of title.
If you use a conveyancer, make sure that they are licensed. To find a licensed conveyancer, or check a conveyancer’s licence details, search our Public register of licensed conveyancers.
Section 32 statement
Before a property is sold, you must give the buyer a Section 32 statement. This document is usually prepared by your legal practitioner or conveyancer.
The reason it is called a Section 32 statement is because the information it must contain is set out in section 32 of the Sale of Land Act 1962. The Section 32 statement contains information about the property’s title, including:
- mortgages
- covenants
- easements
- zoning
- outgoings (for example, rates)
- declaration if located in a bushfire-prone area.
As it is a legal document, it must be factually accurate and complete. If it contains incorrect or insufficient information, a buyer may be able to withdraw from the sale or take legal action against you.
Usually, the selling agent makes the document available to prospective buyers before the sale or auction.
A prospective buyer may get their legal practitioner or conveyancer to check the statement before buying your property.
Selling in an owners corporation (formerly body corporate)
If you intend to sell your property, you must include an owners corporation certificate and accompanying documents in the Section 32 statement.
Section 32 statements are sometimes prepared up to 12 months before the sale of the property, so buyers should either:
- ask for a new certificate before settlement, or
- make a time to inspect the owners corporation register and records.
While it is free to view the owners corporation register, the owners corporation can charge a fee if you want copies of any documents in the register. For a list of the fee limits, view Fees – owners corporations.
Contract of sale for property
A property is sold when both you and the buyer have signed the contract of sale.
Prospective buyers make a formal offer on your property by giving you a signed contract of sale.
The contract of sale contains:
- details of the property
- your name and the buyer's name(s)
- the name of your estate agent (if you are using one)
- details of legal practitioners or conveyancers that you and the buyer have engaged
- the purchase price
- the deposit paid
- the balance owing at settlement
- any special conditions, such as a ‘subject to finance’ clause.
The contract must clearly specify whether the purchase price includes or excludes the goods and services tax (GST) and, if included, how the amount will be calculated.
Apportioning land tax and windfall gains tax
Previously, you could agree in the contract of sale for your property to share the cost of your land tax or windfall gains tax with the buyer.
As of 1 January 2024 you must not:
- pass on windfall gains tax in a contract of sale where your windfall gains tax liability has been assessed before you sign the contract
- pass on land tax to buyers in a contract of sale where the sale price of your property is under the ‘threshold amount’.
The threshold amount for the year starting on 1 January 2024 is $10 million. This threshold will be increased annually in line with inflation.
You should discuss these requirements with your legal practitioner or conveyancer if you are unsure if they apply to you.