Conveyancing is the legal process of transferring the ownership of a real property from one party to another. This is the process that you will need to go through to buy and sell your residential property. Your conveyancer is the person that helps you through this process whilst carrying out the terms of your contract of sale.
The act of buying or selling a property can be complicated and takes months to complete. Having a conveyancer guide you through the process from the beginning can be invaluable. Your conveyancer can provide you with advice on the contract and help explain some of the terminologies that you are unfamiliar with. Your conveyancer can also guide you through step-by-step on how the process of buying or selling a property unfolds and help you trouble-shoot problems as they come up. The more experienced conveyancers can even help you prevent problems from becoming one by providing you with on-point advice.
It is important for you to choose the right conveyancer and lawyer to help you through the process. You need someone that has practiced in the field exclusively for a long time to guide you through all the problems that may come up in a residential conveyancing.
What is the difference between a licensed conveyancer and a conveyancing lawyer?
A licensed conveyancer is someone that is granted a license by the State government to provide conveyancing service to residential property buyers and sellers. A licensed conveyancer can provide general advice to clients that are based on the contract of sale and from their experience of having conducted conveyancing matters. A licensed conveyancer is governed by consumer protection legislations and regulators of the various States, for example, the licensed conveyancer is granted a license from the Consumer Affairs Victoria.
A lawyer is someone that is granted a practising certificate by the legal services commission and is governed by the Legal Profession Act of their home jurisdiction. Once a lawyer is granted a practising certificate, he / she is entitled to practice law in any State beyond their home jurisdiction. A lawyer also has the requisite training and experience to provide legal advice beyond the terms and conditions of a standard contract of sale. Hence, a lawyer is more suited to protect your conveyancing needs than that of a licensed conveyancer. This doesn’t mean that the qualifications of a licensed conveyancer are any less compared to that of a lawyer of course, it just means that the scope of work of a lawyer is naturally broader. If you are looking to conduct your conveyancing in multiple States, it would be more suited that you engage a conveyancing lawyer that is able to practice in many States at once.
What “legal advice” can I expect from my conveyancing lawyer?
Your conveyancing lawyer can provide you with legal advice from both the contract of sale and from legislations. A lawyer is generally expected to keep up to date with proposed changes to legislations so that they can properly advice clients of impending changes that may impact on their transactions. Your conveyancing lawyer can also advice you on what type of terms and conditions should be drafted into the contract to protect your best interest. They can also tell you what’s missing from the contract documents.
Your conveyancing lawyer would also be able to research into case law to advice you on what is the “likely outcome” of certain steps that you are proposing to take. Whilst your lawyer will not be able to give you a definitive answer to complicated matters, the best of us will be able to perform a risk analysis for you, so that you can be more comforted that you have made an informed decision.
Do I need a lawyer to do my conveyancing?
No, you do not need a lawyer to do your conveyancing, but there is definite value for money in using a lawyer for your conveyancing. Whilst most conveyancing contracts are standard carbon copies of each other, what you need to look out for is when they become non-standard. If you are not buying or selling properties for a living, you will not be able to tell whether something is usual or unusual. It is your conveyancing lawyer’s job to help you identify what is out of the ordinary and propose terms and conditions to be negotiated into the contract to protect your best interest.
The conveyancing lawyer’s duty of care to their clients
All lawyers are obligated to act in their clients’ best interest because they have a duty of care to act with skill, care and diligence when servicing their clients. What this means is that your conveyancing lawyer is required to have the requisite skill which is based off years of experience in the trade. Just because a lawyer can practice in conveyancing doesn’t mean that everyone should, because it is a field that requires a lot of attention to detail and care for the client’s most personal needs. Diligence means that the conveyancing lawyer must give all files equal amount of attention rather than to delegate all responsibilities to their paralegals.
Hence, you need to look for a conveyancing lawyer that can manage to provide expert legal advice in your conveyance and treat you and your matter just as importantly as any other clients.
In what circumstances can a standard contract become non-standard?
You should know that when buying and selling residential property, nothing is ever simple. It is “made simple” by those that are experienced in the trade.
Even something that may on the surface look like a standard contract can quickly become a non-standard conveyancing matter if it does not include what should be included in the first place. For example, if you are purchasing a property for the purpose of investment, but you are not aware that the tenant is about to move out, you could end up settling a property without a tenant come settlement date. To protect you against this situation, you could ask your conveyancing lawyer to write a special condition into the contract that requires the seller to renew the tenancy agreement with the tenant as a precondition to settlement. This will protect your mortgage serviceability for at least 12 months after settlement.
Knowing what to include in a contract is just as important as knowing what not to include. It is all well and good to ask a conveyancing lawyer to include every terms and conditions to protect your best interest, but this may make it unappealing to your proposed buyer or seller. An experienced conveyancing lawyer will not only be able to draft terms that protect your interest, but phrase it in a way that is appealing to the other party so that they are more likely than not to accept your offer. If you do not take advantage of the opportunity to seek advice before you sign, you may be paving the way towards a non-standard conveyance sooner than you think.