Conveyancing

Conveyancing is the legal process of transferring ownership of a legal title of land (property) from one person or entity to another.

Buying or selling your home, investment property or land might be one of the biggest financial transactions you make. Our experienced team of conveyancers and property lawyers make the transfer of a property a smooth process and importantly, legally compliant.

Our difference

The decision about whom to engage to provide assistance with this property transfer can often be driven by price, often without a thorough understanding of what lawyers and conveyancers can offer you, the client. Our qualified lawyers have in depth legal knowledge of property law to protect your interests.

Buying or selling a property

If you are buying or selling a property you will need to have a contract of sale drawn-up by your chosen conveyancer or property lawyer. They will need to be qualified to conduct property transactions, and both parties, buyer and seller, will need to have a property lawyer or conveyancer to review the contract of sale so the exchange is within the legal standards.

Your contract of sale will have a list of items covered including you and your agent’s contact details, address of the property, selling price and the name of buyer and their contract agent. You would also list the fixtures and fittings that come with the property, any exclusions, details of easements, date of settlement, deposit, payment and loan conditions and a cooling off period.

Property transactions can be daunting, especially the first time, and selling is a little more complex than buying a property. When selling your property, we take care of the entire process. Providing expert legal guidance through each one of the steps that make up the property transfer process; from preparing your Contract of Sale, to conducting planning and title searches and discussing any special conditions.

Subdividing land

Subdivision of a block of land needs to go through an approval process before you begin to subdivide. Each council has its own set of rules so it’s important to familiarise yourself with them before you go ahead and buy a property for subdivision. Each council will have a minimum lot size and some zoning types will not allow for subdivision.

Before you make an application, your first step is to engage a licensed surveyor to develop a plan of subdivision. In Victoria you need to apply for a planning permit for development with subdivision via SPEAR. On the SPEAR site you can get information on residential subdivisions, building envelopes, bushfire management overlays and planning practice notes. All of these factors need to be considered before you go ahead with subdividing.

Our conveyancers can help you estimate the legal costs of subdividing your land. We can help you determine the considerations of subdividing your land such as zoning, property boundaries, drainage, easements and covenants or restrictions that may apply. We draft all the documentation you need to present to a surveyor and lodge your plans with the right authorities.

Adverse possession

In Victoria, it is possible to acquire title to land by way of an adverse possession claim. To successfully make an adverse possession claim you will need to be able to prove that you (including any previous owners) have had uninterrupted and exclusive possession of the land for a minimum period of 15 years without objection from the actual landowner.

Obvious signs of long-term uninterrupted occupancy include making improvements on and fencing the land, changing the locks to any improvements or to any fences on the land and paying rates assessed on the land.

Adverse possession claims commonly arise when fence lines do not align with title boundaries or land adjacent to a property is used without the true owner’s objection.

It is also possible to make an adverse possession claim on an abandoned easement, such as a carriageway or sewer, provided that it has not been used for the last 30 years. You cannot make an adverse possession claim over Crown Land or land owned by a public authority or owners corporation.

Adverse possession applications

Preparing an adverse possession application can be complex and the assistance of a lawyer is advisable. Adverse possession applications are made to Land Use Victoria and generally comprise the following documents:

  • Evidence of occupancy for the statutory period
  • Professional survey maps and photographs
  • Statutory declarations from you as the applicant and a disinterested witness who swears to the facts of your occupation of the land
  • A letter from the council providing evidence of the individuals recorded as the rated owners over the last 15 years
  • Land registry searches
     

We are skilled in preparing adverse possession applications and assisting you with collecting and preparing the appropriate evidence, including introducing you to estate agents and surveyors with the necessary experience and expertise, to ensure your adverse possession claim is a success.

General law conversion

This kind of title is from land sold by the Crown in the state of Victoria before the Torrens system in 1862, which is the land titles system we use today. General law titles depend on evidence of ownership via deeds going back to the first issue by the Crown. Having the deeds and other documentation that prove current ownership are valid enough evidence of ownership.

Since 1999, conversion from General Law to a Torrens title is compulsory. Our property lawyers can assist you with the general law conversion on your property so you have a title with a State Government guarantee of registered interests.

Registering, changing or removing an easement

You may need to register an easement if you need access through a neighbour’s property to access your land, to run a gas line to your property or to put in a storm water easement.

If an easement is old and irrelevant to the current day usage of the land you may need to have it removed. This can be done through either the Planning scheme, the courts or agreement.

An easement can expire, especially if the company or relevant authority no longer accesses the facility on your land.

If you need to register, change or remove an easement, Robertson Hyetts have expert property lawyers who can take care of all the complicated filing of paperwork, advise you on your rights and responsibilities and take care of your interests.

For more information on easements click here.

Conveyancing FAQs

The Sale of Land Amendment Act 2019 came into effect on 1 March 2020.  This Act provides that a person must not knowingly conceal from a prospective purchaser any material facts about a property being sold.

A material fact is one which would be important to a purchaser in considering whether to purchase a property and which would ultimately influence that decision and the price they would pay. 

A fact would be a ‘material fact’ if the fact results in the property being rare or unusual, or if knowledge of the fact would impact a potential purchaser’s willingness to purchase the property.  A fact may also be considered material if it is of particular significance to a purchaser such that the purchaser had specifically asked questions about the fact.  As a result, the sensitivities of particular purchasers need to be considered by vendors. 

Some examples of a material fact could be if the property had:

  • Restrictions on access during particular times;
  • A history of contaminants used on the land such as agricultural chemicals;
  • Previously been affected by a bushfire or flooding;
  • Combustible cladding, asbestos or pest infestations;
  • Building work done without the required permits;
  • Been the scene of a serious crime such as a murder, extreme violence or used to manufacture illegal substances such as methylamphetamine or hazardous materials.

Any person who publishes any statement, promise or forecast which conceals any material fact and is found guilty could face a maximum penalty of $19,826.40 or up to 12 months imprisonment. This could apply to vendors, their agents, solicitors or conveyancers. 

Conveyancing is the legal process of transferring ownership of a legal title of land (property) from one person or entity to another.

A vendor statement – also known as a section 32 statement – is a document that tells potential buyers certain things about the property title they should know before signing a contract to purchase.

E-conveyancing or electronic conveyancing refers to completing the settlement of a conveyancing transaction electronically through a licensed electronic lodgement network operator such as PEXA (Property Exchange Australia).

There are many safeguards in place to make the process as secure as possible. Only authorised firms and individuals can access PEXA and sign off on settlements and a unique digital signature is required to be inserted into the signer’s computer. PEXA has even provided a seller guarantee in respect of the sale of residential property where the vendor’s funds are misdirected after the vendor’s representative has entered the correct bank account details into the PEXA platform.

There is no requirement to attend a physical settlement. Generally settlements will take place electronically using PEXA. PEXA settlements provide additional benefits, including:

  • for purchaser’s: having stamp duty paid and the transfer of the title to your name registered on the day of settlement and having any outstanding rates and charges on the property paid from the settlement platform,
  • for vendor’s: having all monies paid from the settlement platform and available on the day of settlement so that loans can be repaid and surplus funds are deposit into your account promptly.

An eCT or electronic Certificate of Title is an electronic record of land ownership and is part of the electronic conveyancing (eConveyancing) process. An electronic certificate of title is very safe and has the added benefit that unlike a paper certificate of title it cannot be damaged or lost and it is easier to store and retrieve. 

If you have a mortgage your bank or lender will have control of the electronic certificate of title until your mortgage has been discharged.  Once this occurs or if you own your property outright then your lawyer or conveyancer will have control of the electronic certificate of title and they will hold it on your behalf.

Conveyancing Knowledge Base

Our Conveyancing experts

Janelle has been practicing law for 28 years, with the last 12 years spent assisting property developers through all stages of the development from the acquisition of land, marketing, off the plan contracts, subdivisions and associated agreements and certifying pre-sales for construction finance. This experience has allowed Janelle to understand the property industry and the demands that are placed on property developers.

Janelle Brown

, Lawyer & Director

Having been raised in Armidale, NSW, Anna loves country living. She has been practicing law for 10 years and has a background in litigation where she prepares documents and structures and determines the best outcomes for her clients by ensuring certainty and clarity from the outset.

Anna Doughan

, Lawyer & Associate

John has been practicing law for over 40 years. He was raised in Clare, SA before attending the University of Adelaide and then working in SA, VIC and overseas in Qatar. For the last 2 years, he has been based in our Castlemaine office.

John Wellington

, Special Counsel & Castlemaine office leader

Bendigo Office

386 Hargreaves Street
Bendigo, Victoria 3550
Phone: 03 5434 6666
Fax: 03 5434 6667
Email

Castlemaine Office

157 Barker Street
Castlemaine, Victoria 3450
Phone: 03 5472 1588
Fax: 03 5472 4808
Email

Online Meetings

If you can’t make it to either of our offices, we’re happy to meet with you online to discuss your needs.

Book an online meeting

We acknowledge and extend our appreciation for the Dja Dja Wurrung People, the Traditional Owners of the land that we live and work on, and pay our respects to leaders and Elders past, present and emerging.

© Copyright 2022 Robertson Hyetts

Liability limited by a scheme approved under Professional Standards Legislation.

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