What is Conveyancing?
Conveyancing is the process of transferring the legal ownership of real estate from one person to another. Conveyancing is a legal procedure with various complexities.
Real estate is permanent and valuable, generally increasing in value over time, meaning it is attractive for banks and lenders to take as security for a loan, namely a mortgage. A mortgage gives the bank an “interest” in the land allowing it to sell that interest in order to recover the loan money in the event of an unremedied default by a borrower.
In addition to a mortgage there may be various other interests recorded on a title such as caveats, easements and covenants. As part of conveyancing procedure we ensure that the property is “conveyed” to the new owner free of any other interests. If the property cannot be conveyed free of other parties’ interests, then we alert the purchaser to the interest that will pass with the property. A covenant for example will pass with the property and may restrict the type of building works that can be carried out on the land.
Giving us the edge over non – qualified and irregular conveyancers, our conveyancers have a firm knowledge about the procedures and the law. Through extensive experience and volume of matters, they are also adept at anticipating potential problems and addressing them at an early stage to avoid delay and complications, a regular cause for complaint about our competitors.
Efforts to perform legal work by unlicensed and unqualified conveyancing companies have resulted in criminal charges for some. (The offence of “unqualified legal practice” is a criminal offence, and carries of imprisonment for 2 years).
The negotiation process, including the drafting of the written legal document that sets out the terms and conditions of the sale, is a legal process. It is a legal process because it creates the legal relationship that binds the two parties, and gives rise to legally enforceable rights and as such requires a knowledge of the Sale of Land Act, the Transfer of Land Act, and laws relating to contracts, trade practices and consumer law.
The vendor requires legal advice as to the obligations, responsibilities, and consequences of the rules and procedures associated with the proper marketing and sale of real estate.
We advise strongly against the purchasing of real estate without prior legal advice being taken in relation to the rights and obligation arising from the contract. As all real estate contracts are prepared in favour of the vendor an uninformed purchaser by signing documents they do not fully understand be assuming serious risk.
In Victoria anyone can call themselves a conveyancer and offer to perform “conveyancing work”. A frequent misconception is that conveyancers are cheaper. This is not usually the case, and hidden charges associated with conveyancing companies can add up to $200.00 to overall charges for a purchaser who are usually referred to lawyers to obtain Certificates of Independent Legal Advice (as Conveyancers cannot give legal advice) and to procure bank cheques for settlement (because Conveyancing Companies do not have trust accounts).
Lower base fees offered also generally come with lesser service and less regulation. As Lawyers we have large professional indemnity insurance and are fully regulated under the Legal Profession Act 2004 and Legal Profession Regulations.
Like all lawyers we are required to carry professional indemnity insurance and fidelity insurance which afford our clients the additional knowledge that should something every go wrong, there is NO RISK to them financially.
In addition to completing a conveyancing transaction, we are also able to advise on collateral matters. Other areas of law such as Family Law, Wills and Estate, Taxation, just to name a few, can all affect, or be affected by, a person’s ownership of real estate. We also offer discounts in relation to Estate Planning Work which follows on from the conveyancing transaction.
