By Star Weekly
One of the most important transactions that many people are involved in is the sale or purchase of their home. Given that the average sale price of homes is now approaching $1 million, it is sensible for a prospective seller or buyer to give careful thought about who they will trust with the task of ensuring that their sale or purchase, or sometimes both, is handled with appropriate skill and care.
Lawyer
Lawyers are trained in a wide range of legal skills. This breadth of knowledge allows lawyers to consider the many and varied aspects of a conveyancing transaction that may impact on what appears to be a simple sale or purchase.
Some matters are:
• Has the appropriate disclosure been made in accordance with the Sale of Land Act?
• Are there any Easements or Covenants?
• Has a building contract been entered in accordance with the Instruments Act?
• Have documents been signed by an Attorney pursuant to the Power of Attorney Act?
• Is there a “cooling-off right” pursuant to the Sale of Land Act?
• Is the deposit held in accordance with the Sale of Land Act and can it be released?
• Is there an off-the-plan contract and when is the sunset date?
• Has finance been approved and are any building or pest reports required?
• Are the measurements of the property correct?
• Is the property affected by the Owners Corporation Act?
• Should a Caveat be lodged?
• Does section 137B of the Building Act apply?
In addition to these preliminary matters, Goods and Services Tax, Capital Gains Tax and the Foreign Resident Capital Gains Tax Withholding obligations need to be taken into account. As the matter progresses and approaches settlement, the tasks of adjustment of rates and land tax must be tackled, stamp duty is calculated and paid, and settlement is arranged.
Most of these aspects usually fall into place, but a lawyer’s wide-ranging experience in all aspects of the law give the lawyer the ability to recognise potential problems and take steps to avoid those problems. Lawyers ask “what if” and anticipate problems before they arise.
Conveyancer
A Conveyancer has training in limited areas of property law and can handle a conveyancing transaction if nothing goes wrong. But a conveyancer must refer any complex legal work arising out of a conveyancing transaction to a lawyer. Conveyancers ask “how” and react to responses from others.
Lawyers are obliged to undertake 10 hours per year of Compulsory Professional Development (‘CPD’) and thereby keep up to date with important changes to the law. Conveyancers do not undertake comparable training. Lawyers can also provide independent legal advice to borrowers and guarantors, whereas conveyancers cannot.
Cost
Lawyers and conveyancers fix their own charges, subject to reasonable limits. The market does affect those charges but, by and large, conveyancers charge 80-90% of what suburban lawyers charge for conveyancing. When considering a $1 million transaction, a saving of $100 – $200 is irrelevant.
Commercial Transactions
The wide training and experience that lawyers have in all areas of business law makes the skills that lawyers bring to a commercial transaction all the more important. Tax issues and structuring the transaction are all important and conveyancers do not have training in complex business transactions.
Summary
Why trust a very important transaction to a person with limited qualifications when you can be assisted by a person with a greater breadth of knowledge for not much more in cost.
