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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

November 2001

What Is Involved In The Buying And Selling Of Property

Conveyancing is much more than a ‘rubber stamp’

Conveyancing is the term used to describe the legal work required for completion of a property transaction – usually a sale or a purchase. There is a misconception that conveyancing is a paper shuffling exercise but in reality the range of tasks involved is often complex and difficult.

Sale and purchase agreement
This is an important legal contract and wise people seek advice from INDER LYNCH before signing their agreement. We can advise on the legal consequences of an offer, a counter-offer and when acceptance has been completed.

Once the agreement is signed legally binding obligations arise. It pays people to “do the right thing” at the beginning and see INDER LYNCH first.

Conditions

Many sale and purchase agreements contain conditions which may need to be fulfilled before the transaction can proceed. It is important that these contractual conditions are expressed clearly.

Examples of common conditions in sale and purchase agreements are:

  • The purchaser securing suitable finance to complete the purchase.
  • Receipt of a satisfactory building and/or engineer’s report, or valuer’s report on the property.
  • Receipt of a Land Information Memorandum (LIM) from the local authority.
  • The purchaser’s solicitor searching and approving the title.

INDER LYNCH can advise on the wording of these conditions to ensure that they meet the client’s requirements and can also assist in carrying out work to determine whether the conditions are met.

Finance

If purchasers need to raise a loan to complete the purchase the INDER LYNCH can give valuable advice.

Once the finance has been arranged the lender (usually a bank) will instruct INDER LYNCH to prepare the mortgage documents and we will explain the terms of the loan and the effect of the mortgage.

INDER LYNCH will give the client independent advice on the terms of the loan and aspects such as:

  • The effect of having a “current account” mortgage registered against a title (as is usual). This type of mortgage can secure not only the initial home loan but also subsequent loans that the client may obtain from the same lender.
  • The effect of early repayment penalties in respect of fixed interest loans.

We may also be able to assist the client in negotiations or varying the terms of any particular loan offer.

If a guarantor is involved, complicated legal questions may arise – such as whether the guarantor needs to seek independent legal advice from another lawyer, the point at which their liability can be invoked, or the ramifications for a trustee in respect of liability under loan documents or guarantees. These are all issues requiring legal advice.

Solicitors’ certificates

Most lenders will not advance mortgage moneys for the completion of the purchase of a property until they receive a solicitor’s certificate. This is usually provided by the property lawyer who has also been instructed by the bank to prepare the mortgage documentation.

The certificate means that the bank can advance the money in the knowledge that the mortgage documents will be validly executed and presented for registration, local authority rates will be paid, that the property will be insured and the lender’s interest noted. This is a very important part of a property transaction and one where INDER LYNCH’s work ensures that the lender is satisfied that it can advance funds to settle the purchase.

Builders’ (or engineers’) reports

If the purchaser has any doubts as to the condition of the property which he/she is purchasing he/she would be well advised to employ a qualified builder to inspect the property and provide a full report on its condition. On certain occasions – especially in the case of hill sections – an engineer’s report may also be recommended.

A condition should be inserted in the contract making the purchase subject to the purchaser being satisfied with the results of this report. If the report identifies problems which need to be fixed the purchaser may be able to negotiate with the vendor to have this done at the vendor’s cost before settlement of the purchase or for a reduction in the purchase price. INDER LYNCH can negotiate these matters.

If the vendor is not prepared to negotiate then the purchaser will have the right to withdraw from the purchase if the condition has been worded carefully.

Absence of such a condition in the contract or a badly worded one could result in the purchaser having to complete the purchase with the existing problems.

Land information memorandum (LIM) 

A LIM is a report on the property provided by the local authority from their records. It will give information on the zoning of the property and will identify whether the proper building consents have been obtained for any additions and alterations.

If a client is purchasing a property with a multi fuel burner or similar device it is particularly important to ensure that the burner has the necessary building consent. Without this the property owner’s insurance could be invalidated, should the burner cause a fire in the property.

Title

INDER LYNCH will advise you on all aspects of title.

The most common form of title is a freehold one but cross leases and unit titles are becoming more common. These titles have special features and involve owners in rights and obligations on which the property lawyer is well qualified to advise.

The title may be subject to or have the benefit of easements such as rights of way and drainage rights. INDER LYNCH will search the terms and conditions of these easements. For example with a right of way the client would want to know how many property owners have the right to use the right of way and what are the obligations of users in respect of maintenance and upkeep of it.

Chattels

In general terms chattels are movable objects found in a house or elsewhere on the property and which are included in the sale.

The “usual chattels” are stove, television aerial, carpets, blinds, curtains, drapes and light fittings. However often there are additional items included such as dishwashers, refrigerators, heaters, garden furniture and glasshouses. It is important that all chattels are specifically listed in the agreement for sale and purchase. Failure to include a chattel can be fertile ground for later dispute and anxiety.

Joint ownership

Where there is more than one purchaser INDER LYNCH can advise about various joint ownership issues including the implications of ownership as joint tenants or as tenants in common.

If de facto partners are buying a property it is particularly important that they seek advice from INDER LYNCH as to the issues which may arise under the Property (Relationships) Act.

If buying property with another person with whom the client has a business partnership it is important that there is an ancillary written agreement setting out each parties rights and obligations in respect of the property and what is to happen when the property is sold.

Such an ancillary agreement may also be necessary in the case of a de facto couple.

Tenancies

Tenanted properties raise a number of issues – for instance, what if the tenancy is unexpired but the purchaser wishes to move into the house immediately on settlement?

What steps should be taken by the vendor – and when – if the purchaser requires vacant possession? Do the chattels belong to the tenant or the vendor?

Can the terms of a tenancy be altered after a sale and purchase agreement is signed but before settlement? These are just some of the matters, which your lawyer can advise you on.

Other matters

One of the advantages of engaging INDER LYNCH is that WE are qualified to advise in all aspects of the law which may need to be dealt with as part of the overall transaction.

  • Matters in which property lawyers have expertise and can identify and advise on are as follows:
  • Making a Will
  • Preparation of enduring powers of attorney
  • Setting up a Family Trust
  • Taxation implications (especially in respect of investment properties)
  • Overseas Investment Commission requirements (where foreign ownership is an issue)
  • Property (Relationships) Act implications and contracting out agreements