Common elements of a conveyancing transaction


Contract of sale

The standard contract of sale of real estate is prescribed by the Estate Agents Act 1980 (Vic) (s 53A) and the Estate Agents (Contracts) Amendment Regulations 2014 (Vic). A contract of sale is prepared by the vendor’s solicitor or conveyancer.

A contract of sale contains the terms of the purchase, the parties’ details, the purchase price, how it is payable, the day of sale (i.e. the settlement date), a description of the property and chattels, and the day that possession of the property is available.

Before you sign a contract of sale, you should read every clause carefully to ensure that you understand its effect. If you have any queries about a contract, seek legal advice before you sign it.

The process of a buyer making a written order to a vendor is as follows:

the buyer signs the contract of sale;

the written offer is given to the vendor;

once the vendor has accepted the buyer’s offer and signed the contract, the vendor’s agent sends copies of the signed contract to the vendor, the buyer and their solicitors or conveyancers.

Note that when a buyer signs a contract of sale, they are effectively making an offer to the vendor. A buyer is bound by the offer when the vendor accepts it.

At an auction, a vendor’s acceptance should be immediate. If a property is sold by private treaty or agreement, the vendor may accept the written offer immediately or they may take a few days to accept the offer. It is recommended that the buyer set a timeframe within which their written offer is valid.

Prescribed contract of sale

There is now only one prescribed contract of sale for real estate in Victoria. The previous abridged version, known as the “contract note” has been abolished.

Unless an estate agent is provided with a contract by the vendor’s solicitor or conveyancer, the agent is permitted to use the prescribed contract. This contract is located in the Estate Agents (Contracts) Regulations 2008 (Vic).

Use of the prescribed contract is not obligatory (except by agents when they are initiating the sale documents and have not been supplied with a contract). Solicitors and conveyancers can use their own versions of a contract of sale, and many do. Versions of a contract that are not in the prescribed form should be read carefully and understood before being signed. Particular attention should be paid to any special conditions, as these may differ from the usual wording of the prescribed contract.

Deposit

A deposit can be paid in one sum, or as a preliminary deposit and balance. The deposit should be the smallest sum the buyer can negotiate. It is general practice for a deposit to be 10 per cent of the purchase price. A deposit is paid when the buyer signs the contract of sale.

The SL Act requires the vendor’s agent, solicitor or conveyancer to hold the deposit in a trust account. It is a criminal offence for the person holding the deposit to use it for their own purpose.

The vendor is only entitled to receive the deposit on settlement of the contract of sale. It the vendor wishes to receive the deposit before settlement, a statement under section 27 of the SL Act must be given to the buyer (seeSection 27 statement”).

If the vendor breaks the contract, the deposit must be returned to the buyer. In contrast, if the buyer breaks the contract, the vendor keeps the deposit.

If both the vendor and buyer agree, the deposit can be put into an interest-bearing account in their joint names. However, paying the deposit from the account requires the signature of both the vendor and the buyer. While this practice allows interest to be earned, the accessibility of the deposit is diminished.

Sometimes a contract states that the deposit must be paid directly to the vendor’s solicitor for investment in an interest-bearing account until the contract settles. Solicitors, not agents, can arrange these accounts.

Co-ownership

If a property is purchased by more than one individual, each individual is required to note in the contract of sale their respective interest, or how the property title is to be shared. As a general rule, all buyers listed in the contract should be registered proprietors (i.e. have their names on the title).

Buyers need to choose one of three options:

1 The property is held jointly – each individual has an equal share in the property (note that if one buyer dies, the surviving buyers automatically receive equal portions of the deceased’s share, regardless of any contrary provision in the deceased’s will);

2 The property is held as tenants in common – each individual has an equal parcel of shares;

3 The property is held as tenants in common – individuals have unequal parcels of shares (individual buyers can choose who receives their share in their will).

Caveats

As soon as the vendor accepts the buyer’s written offer, it is prudent for the buyer to lodge a caveat on the vendor’s title. This protects the buyer by preventing the vendor dealing with the title except to complete the contract.

Caveats can no longer be lodged in hardcopy paper form at Land Use Victoria. They must be lodged electronically with Property Exchange Australia (PEXA). Buyers need to engage a solicitor or conveyancer who is PEXA subscriber to lodge a caveat on their behalf.

Insurance

There are specific circumstances when the vendor must disclose the current insurance coverage of a property in the vendor’s statement.

In general, the risk of damage to a property remains with the vendor until settlement.

Buyers who are purchasing a property with common property should ensure that the common property and shared services are insured by the owners corporation. (See Owners corporations.) Common property that is professionally managed is usually insured.

Investigating the title

Buyers must search for the title at Land Use Victoria; the outgoings and zoning information provided by the vendor should be checked.

Buyers should always examine the certificates that are commonly found in a vendor’s statement; these include:

a zoning certificate from the Victorian Government Department of Planning or the local council;

a VicRoads certificate about plans to build or widen roads;

a rate certificate from the relevant water authority;

a SRO certificate showing the taxable value, arrears of land tax, and tax payable on the land;

a land information certificate from the local council showing rates, road charges and other municipal records;

building approvals and notices from the local council (forms 2.10, 10 Building Regulations 2006 (Vic));

an encumbrance certificate from the water authority showing unregistered encumbrances in its records (if applicable); and

the building guarantee or builder’s insurance, for homes built or renovated in the previous 10 years.

If any of the above certificates are not included in the vendor’s statement, the buyer should conduct their own search for these certificates. Furthermore, even if the above certificates are included in the vendor’s statement, the buyer may still wish to search for them to check that no new information affecting the property has been added to the certificates since the date of the contract of sale.

Certificates can be applied for online and fees are payable. Solicitors and conveyancers generally use professional search agencies for this task.

Sometimes, certificates from the Historic Buildings Council and other agencies should be included in the vendor’s statement. Also, the local council should be asked about flooding, filling of the land, or slippage on hillsides.

A registry of land affected by chemical pollution is held at the Environment Protection Authority. Agriculture Victoria (part of the Victorian Government Department of Jobs, Transport and Resources) can give advice on land affected by the use of chemicals.