Buying or selling your home, investment property or land might be one of the biggest financial transactions you make.
Robertson Hyetts have an experienced team of conveyancers and property lawyers, making the transfer of a property a smooth process, giving you peace of mind. Whether buying or selling a property we make every dollar count, ensuring your property transfer is legally compliant.
What is conveyancing?
Conveyancing is the legal process of transferring ownership of a legal title of land (property) from one person or entity to another.
When do I need conveyancing services?
When you are buying or selling a piece of real estate, subdividing, updating a title, registering changing or moving an easement, adverse possession and general law conversion.
Buying a property or selling a property
Contract of sale
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 check over 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. Selling is a little more complex than buying a property but we still make it simple for you. When selling a property, your conveyancer at Robertson Hyetts takes care of the whole 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 with you.
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 its 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, bush fire management overlays and planning practice notes. All of these things need to be considered before you go ahead with subdividing.
Our conveyancers can help you estimate of the costs of subdividing your land. We can assist you to 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.
Updating a Certificate of Title
You may need to update or change the title of your real estate if you have sold it, if the owner or mortgagee dies or if you have changed your name and or address or if you have paid the mortgage off in completion.
No matter where you live in Central Victoria, Robertson Hyetts will manage the change and lodgement of your Certificate of Title so you won’t have to worry about a thing.
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
The property lawyers at Robertson Hyetts 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 Bendigo 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 meed access through a neighbours property to access your land, you might need to run a gas line to your property or put in a storm water easement.
One way to remove an easement, especially if it is old and irrelevant to the current day usage of the land, is to file a quiet the title application. It would take legal action to quiet the title and supposing there was no objections from neighbours or authorities, easement can be removed. An example would be an old irrigation easement running through your property that is irrelevant to the area as it is old and the land has been changed from farming land and developed for residential purposes.
An easement can expire, especially if the company or relevant authority no longer accesses the facility on your land. If the easement has expired or been abandoned you can legally claim the land. In the situation where an easement through the neighbour’s land (dominant property), such as a driveway is the only access to another property (servient property), this easement can be terminated if the dominant neighbour buys the servient property and absorbs the land into one property.
If you need to register, change or remove an easement, Robertson Hyetts have expert property lawyers who can look after all the complicated filing of paper work, advise you on your rights and responsibilities and take care of your interests.
Verification of Identity
In order to minimise the incidence of fraud, we are required to verify your identity during property transactions. Verifying your identity is required for both vendors and purchasers.
Making conveyancing simple
Our conveyancing staff will provide a clear explanation of all aspects of property transfer and if there are other documents or activities that need to be completed, we can do these too. We aim to make the property transfer process simple for you.
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.
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 (Property Exchange Australia). 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.
“Thank you so much Anna. The speed with which you attend to my matters is impressive and exceptional. I do appreciate your efforts.”
“We were so pleased to have had the opportunity for Robertson Hyetts to manage our recent house sale and purchase because of their in-depth knowledge, attention to detail and approachable personalities meant we always felt a part of the process. All staff have a great way of reinterpreting the ‘boring bits’, so we were able to easily understand what was going on at all times for this significant time in our life.”
– Claudette & Cameron
For legal advice that protects your interests phone now for an appointment: Bendigo 03 5434 6666; Castlemaine 03 5472 1588 or Melbourne by appointment.
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