Conveyancing

Paying stamp duty on a property transaction in NSW is an area of government policy currently undergoing rapid change. We’ll look at these changes in a series of articles, beginning with the current state of play.

First Home Buyer Choice scheme – introduced but soon to be abolished

In November 2022 the former Perrottet government introduced the First Home Buyer Choice scheme (FHBC), allowing those getting into the property market to choose between either paying stamp duty in a lump sum, or paying an annual property tax on the property. The scheme’s aim was to reduce the initial cost of purchasing a property for a first home buyer by paying a tax calculated on the land value and paid each year of ownership, instead of the lager lump sum amount required by an upfront stamp duty payment.

Under the scheme first home buyers in NSW could choose to pay $400 plus 0.3 per cent of their property’s land value if they reside in the property (or $1,500 plus 1.1 per cent of land value for investment properties). The property tax option applied to properties up to the value of $1.5 million. Stamp duty exemptions remained, comprising a full exemption for homes valued up to $650,000, and a partial exemption for homes valued up to $800,000.

But with the election of the new Minns Labor government in March, further changes to stamp duty in NSW were announced. Crticising the FHBC as ‘a lifetime tax’ on the family home, the new government said it would instead rely on expanding stamp duty concessions to help first home buyers. From June 30 this year the new government proposes to abolish the FHBC. Instead, first home buyers will receive a full concession on properties up to $800,000 and a concessional rate for homes valued up to $1 million (believed to be about 50 per cent). The NSW Parliamentary Budget Office has estimated up to 95 per cent of all first home buyers will save money on stamp duty under the new rates.

Implications for home buyers

Those who have already opted in to the FHBC will have a grace period in which their arrangements remain the same. It’s also expected a window will remain open before the scheme is phased out in which new buyers can still make a choice between land tax and stamp duty. If not, those looking to buy a property up to $1.5million who had chosen the land tax option will not be required to pay the full stamp duty amount.

While the FHBC made it easier for first-home buyers to get into the market by reducing the overall amount needed for a deposit, it was also critiqued for potentially inflating property prices by artificially encouraging demand at a time of limited housing supply. The scheme also only applied to first home buyers and not other segments of the market such as existing homeowners and empty nesters.

Unsure? Speak with our property experts

In this period of transition between governments in NSW, where earlier schemes may be abolished and new rates of stamp duty on property transactions come into effect, the guidance of our property and conveyancing specialists at Felicio Law Firm can be vital. We can help clarify the issues involved, particularly if you have already opted in to the FHBC or want to choose to pay land tax before the scheme expires at the end of June. Contact us today for more detail on any of the issues raised in this post.

Property ownership in Australia has become a major political issue as younger people aspiring to own their own home have mostly been priced out of the market.

Government schemes to support first home buyers to achieve home ownership were introduced a number of years ago and continue to evolve. In NSW, new legislation was passed in November 2022, known as First Home Buyer Choice (FHBC). It allows first-home buyers to pay an annual property tax instead of stamp duty, which prevents many young people from entering the market. The initiative is designed to lower the upfront costs of purchasing a home in NSW and speed up the time in which new buyers can save in order to enter the market. The annual tax option allows a first home buyer to pay $400 plus 0.3 per cent of their property’s land value if they reside in the property (or $1,500 plus 1.1 per cent of land value for investment properties).

The new property tax option will be available for properties up to the value of $1.5 million. The NSW government expects the measure to assist 97 per cent of all first home buyers, or about 57,000 people per year. Existing stamp duty concessions for first home buyers are available for purchases of up to $800,000, and these concessions will continue.

How can someone find out more about FHBC?

The government body responsible for rolling out the new annual tax option for first home buyers is Revenue NSW. It is currently developing new systems, forms and educational materials primarily directed at industry and conveyancing professionals who will be responsible for advising prospective first home buyers about the new scheme.

To this end, Revenue NSW has provided more detailed information about FHBC on its website, while webinars will be offered for relevant parties. A professionals guide is currently being developed and should be available at Revenue NSW’s Resource Centre for Professionals from early December 2022, while the FHBC application form and lodgement guide will also available from mid-December.

The application process

As of January 16, 2023 a new document will be available by which ‘First Home Buyer Assistance’ and ‘First Home Buyer Choice’ applications can be processed.

FHBC applications will be processed as a duties assessment through an electronic duties return (EDR).

For new home buyers currently in the process of settling on a new house, the following information may be relevant ahead of the processing of applications from January 16.

Where a contract is entered into from November 11, 2022 and settlement is occurring before January 16, 2023, duty will need to be paid at settlement through an Electronic Lodgement Network Operator (ELNO).

Any first-home buyer who makes a purchase from November 11 until January 15, 2022 is entitled to apply for a refund of their stamp duty and choose to opt into the tax instead. Refund requests can be applied through Revenue NSW from January 16.

Professionals can lodge relevant forms and supporting evidence through Revenue NSW’s eDuties system on behalf of the purchaser, or purchasers will also be able to lodge relevant forms and supporting evidence directly with Revenue NSW through a portal.

For contracts entered into from November 11, 2022 where settlement occurs on or after January 16, 2023, professionals acting on behalf of a purchaser can process the FHBC transaction through EDR using the new ‘First Home Buyer’ document type from January 16, 2023.

Contracts for off-the-plan purchases signed on or after November 11, 2021 which settle on or after that date may be eligible to opt in to Property Tax, however these transactions cannot be processed through EDR and must be lodged through the eDuties system.

It should be noted that if a property that becomes subject to the property tax because of the first home buyer’s choice is sold, a subsequent owner is not subject to the tax.

More advice on the changes for first home buyers

If you have purchased your first home on or since the announcement of the new ‘choice’ policy in November 2022, or are about to make a purchase and need more information on how the FHBC scheme works, contact our Erina conveyancing professionals at Felicio Law Firm. It’s our job to be across important government policy changes such as this – we can help explain the advantages and disadvantages of choosing the annual property tax option over stamp duty, as well as how the new application process works.

Contact us today if this article raises any questions or concerns.

As many basic legal processes move online, issues around security and verification of identity become ever more important. One of the most common legal processes people deal with is conveyancing of property.

PEXA is Australia’s national system for online settlement and lodgement of property transactions. Verification of identity (VOI) is a crucial step in the process, to guard against the possibility of fraudulent property transactions and ensure the person named in the Register of Land is actually the registered proprietor. Settlements of land through PEXA became particularly popular during the Covid-19 pandemic, to avoid the need for face-to-face property transactions.

Only registered subscribers are able to use PEXA. Persons, partnerships or bodies corporate who meet the eligibility criteria, as well as solicitors and financial institutions, are eligible to become subscribers in PEXA. In some Australian jurisdictions, licensed conveyancers may also become subscribers.

For the majority of Australians, who use a solicitor to conduct a property transaction, the law firm and conveyancers must verify the identity of clients in order to complete e-conveyancing transactions.

Under the PEXA rules, a solicitor or other qualified witness must take reasonable steps to verify the identity of the individual, and the right of the individual to deal with the property if e-conveyancing is being used.

What is the VOI process to use PEXA?

There are a number of ways for a person to provide VOI when using a conveyancer. The easiest way is through a face-to-face appointment between the client and the firm conveying the property. Another method is the uploading of scans of key ID documents to a secure digital platform, along with a picture and video verifying the person’s identity. Such services generally require a fee. Finally, Australia Post’s Identity Verifier service allows a person to visit a participating post office to verify their identity. Again, this service attracts a fee but makes VOI easier for those located remotely.

What documents are required to verify identity?

The documents required for the VOI process are similar to the ‘100 points’ system commonly required for a person to open, for example, a bank account. A variety of categories and combinations of documents can be provided to prove your identity for the purposes of PEXA, outlined below.

Category 1: Australian passport OR foreign passport and an Australian Visa Grant Notice evidencing an Australian Resident Visa PLUS an Australian driver’s licence or photo card. A Change of Name or Marriage Certificate is also required, if a person’s name as displayed on their passport or licence has since changed.

Category 2: Australian passport OR foreign passport and an Australian Visa Grant Notice evidencing an Australian resident visa PLUS full birth certificate or citizenship certificate or descent certificate PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card. Change of Name or Marriage Certificate, if necessary.

Category 3: Australian driver’s licence or photo card PLUS full birth certificate or citizenship certificate or descent certificate PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card PLUS Change of Name or Marriage Certificate, if necessary.

Category 4: (a) Australian passport OR foreign passport PLUS another form of government issued photographic identity document PLUS Change of Name or Marriage Certificate, if necessary, or (b) Australian passport OR foreign passport PLUS full birth certificate PLUS another form of government issued identity document PLUS Change of Name or Marriage Certificate, if necessary.

Category 5: (a) Identifier Declaration plus full birth certificate or citizenship certificate or descent certificate PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card PLUS Change of Name or Marriage Certificate, if necessary, or (b) Identifier Declaration by a person specified in Verification of Identity PLUS Medicare or Centrelink or Department of Veterans’ Affairs Card PLUS Change of Name or Marriage Certificate, if necessary.

Once completed a lawyer can rely on a completed VOI for a person to conduct online transactions within a period of two years.

Ask our property experts

Erina Conveyancing is one of our core specialities at Felicio Law Firm. If you have questions about how to verify your identity to enable us to complete your property transaction online, or what combination of documents are needed in order to do so, please get in touch to allow us to assist you and ensure your purchase or sale is conducted smoothly and without interruption.

Stamp duty is one of those imposts that can act as a real disincentive for a first home buyer. You scrimp and save to get a deposit together, find a property you like, go off to the bank for a loan, and then realise you may have to pay up to tens of thousands more to the government once you purchase the property.

Recognising this effect, the NSW government recently announced changes to stamp duty for first home buyers as part of its COVID-19 recovery plan, designed to stimulate both property investment and housing construction.

We’ll offer some more detail on the changes below and also look at stamp duty discounts for first home buyers in Queensland. At Felicio Law Firm, our property law specialists deal with both NSW and Queensland-based clients looking to buy their first property. We can advise you on what to expect in terms of your stamp duty obligation when you purchase property for the first time.

Changes in NSW

The NSW government has announced that between August 1, 2020 and 31 July 2021, stamp duty will no longer be charged on first home buyers who purchase a new home valued at $800,000 or less. Concessions (that is, discounts) on stamp duty apply on properties valued at up to $1 million.

The higher value is an increase from the $650,000 threshold that previously applied, which now only applies to first home buyers purchasing existing homes. First home buyers who purchase a home that is not newly built, therefore, are only exempt from stamp duty if the property is valued at $650,000 or less.

The effect of this change is that there is a distinction drawn between those first home buyers who purchase a brand new home and those who buying an existing home, and is primarily of benefit to those entrants to the market looking to buy off-the-plan. For a first home buyer purchasing an existing home valued at $800,000, you still have to pay stamp duty which will amount to more than $30,000. A concessional rate of stamp duty is available for homes valued at more than $800,000 but less than $1 million.

First home buyers who purchase vacant land on which to build are now exempt from stamp duty if the land is valued up to $400,000, up from $350,000. Stamp duty discounts remain for land valued more than $400,000 up to $500,000.

It should be noted these changes are temporary and expire at 31 July 2021. Also remember that even if you don’t qualify for stamp duty exemption or concession, there are other first home buyer schemes available in NSW, such as the $10,000 First Home Owner Grant for properties valued up to $600,000 (you will also be exempt from stamp duty, as per above). The federal HomeBuilder grant of $25,000 may also be available for newly built homes up to the value of $750,000, depending on eligibility.

Stamp duty in Queensland

In Queensland the First Home Buyers Stamp Duty Concession scheme is also dependent on the value of the property you purchase.

The maximum stamp duty concession available for properties valued up to $504,999.99 is $8,750. For properties valued between $505,000 to $550,000, the concession reduces in steps. If your first property is over $550,000, you’ll pay stamp duty (or transfer duty, as it is officially called in Queensland) at the rate of a normal owner occupier.

If your first entry into the market is to buy a block of vacant land to build on, concessions are available for land valued under $400,000 with a maximum rebate of up to $7,175 for land valued between $250,000 and $259,999.99. No transfer duty is payable on land valued under $250,000.

To be eligible for a first home duty concession when you buy or acquire a property, you must:

• have never previously claimed the first home vacant land concession;
• have never held an interest in another residence anywhere in Australia or overseas;
• be at least 18 years of age;
• move into it with your personal belongings and live there on a daily basis within one year of settlement;
• not dispose (sell, transfer, lease or otherwise grant exclusive possession) of all or part of the property before you move in;
• be paying market value if the residence is valued between $500,001 and $549,999.

To keep the benefit of the first home concession in full after you move in, you must not dispose of all or part of the property within one year. A partial concession may apply if you do so.

As in NSW, you may also be eligible for a Queensland First Home Buyers Grant of $15,000 if you’re building a new home or buying a brand new home, or the Federal government’s First Home Loan Deposit Scheme and the HomeBuilder Grant of $25,000.

Get expert advice

At Felicio Law Firm, it’s our job to be across any changes to stamp duty which affect first home buyers. We have a proud track record of advising clients venturing into the property market for the first time on what exemptions, concessions and other assistance may be available to them.

Property conveyancing is an ever-changing area but we will make sure you have all the information you need to make the best choice when it comes time to purchase your first property. Call Erina Lawyers us for an initial consultation now on (02) 4365 4249.

The NSW Civil and Administrative Tribunal (NCAT) was established in 2014 as a means of reducing the complexity involved where people need to interact with a government decision or legislation, or where they need an authority to decide a dispute.

To this end, the NCAT replaced 22 former tribunals and now operates with four divisions: Administrative and Equal Opportunity, Consumer and Commercial, Guardianship, and Occupational. These divisions deal with a wide range of matters, including reviews of decisions made by a government agency, anti-discrimination, consumer complaints, home building disputes, conveyancing costs disputes, retail lease disputes, appointment of guardians or financial managers, and tenancy disputes between tenants and landlords, among many other matters.

The aim of the NCAT is to provide an accessible, economic and effective mechanism to resolve common disputes. To this end, there a number of methods employed to prevent a matter proceeding to the stage of a hearing before the NCAT, though this article will focus on what occurs during an NCAT hearing.

Dispute resolution ahead of a hearing

Once an application to the NCAT is made, the Tribunal will assist parties to try and resolve the matter before the need for a hearing. This may take the form of an informal discussion, preliminary conferences, planning meetings and case conferences (in the Administrative and Equal Opportunity Division), conciliation (in the Consumer and Commercial Division) and mediation (in some Divisions, where suitable).

What happens when a matter proceeds to a hearing

Where other means are not able to resolve an application, the NCAT will move it to the hearing process where you, as the applicant, have the opportunity to make submissions, give and present evidence, and provide supporting documentation. The opposing party can do likewise. Based on this process, the Tribunal can then make a decision on the matter.

You will need to be properly prepared for an NCAT hearing as Tribunal members will ask questions about the evidence you submit in support of your case. They may also ask that your evidence is sworn or affirmed.

The hearing process will generally involve the applicant first providing verbal evidence, followed by the respondent. Any supporting documents need to be provided before the hearing to the Tribunal and the other party. Documents might include character references, medical reports, contracts, letters, emails, invoices, phone logs, minutes of meetings, plans and drawings, and photographs and film.

An affidavit or written statement serving as written evidence can also be provided to the NCAT before the hearing. An affidavit is a written record of your view of the facts in the case and needs to be sworn or affirmed in front of a Justice of the Peace (JP) or a solicitor. By contrast, a statement only needs to be signed by the person who writes it and does not have to be sworn or affirmed.

You may also call on the evidence of witnesses to support your case at an NCAT hearing. Witnesses can provide a statement or affidavit as part of the hearing or, in some cases, give evidence in person. Depending on your matter, you may engage an expert witness to provide a report or give in-person evidence at the hearing.

Where a person or organisation won’t provide you with information you need to include as evidence for the NCAT hearing, you can request a summons in order to procure that information.

The Tribunal member hearing the case will often make a decision on the day of the hearing though may reserve their decision until a later time in more complex cases. The decision will usually be delivered verbally with a brief outline of the reasons for their decision and the orders that will be made.

Once the decision is made, you can ask the NCAT within 28 days of the decision for a written statement of reasons for the decision. This statement should explain NCAT’s decisions on the facts, the law and how the Tribunal member came to the decision. By asking for this statement, you can extend the time you have to appeal the decision if it is unfavourable to you.

The wisdom of legal assistance

The set-up of the NCAT as a low cost and accessible means of resolving common disputes is designed to allow people who make applications to the Tribunal to represent themselves, but that doesn’t mean you can’t have a legal representative present or engage them to help you prepare your application.

Because people are encouraged to represent themselves before the NCAT, you need to make a request if you wish to be represented by a lawyer in your matter. This request requires a letter in writing either before or at the time of the hearing that details:

• The file number and parties’ names;
• the reasons you would prefer to be represented;
• the name and occupation of the proposed representative and whether or not that person is a lawyer/solicitor;
• a statement that the proposed representative has your permission to make decisions in your absence that are binding on you.

Depending on the complexity of your application, it’s always advisable to seek the guidance and advice of a legal representative who has experience in representing clients before the NCAT.

Felicio Law Firm has conducted many matters before the NCAT and can help you expertly prepare your application so that if you need to appear before the Tribunal, the chances of success in your matter are much higher. Contact us Erina conveyancing today on (02) 4365 4249 if you have any questions about NCAT hearings.

Judging by the press it is getting, buying and selling property through a self-managed superannuation fund (SMSF) is all the rage. But before you jump on the bandwagon, it’s important to understand what you are really in for.

Rules, rules and more rules

The single most important thing to be aware of before you take the plunge is that there are lots of rules for making these transactions. Here are just a few:

1. You cannot buy and sell real estate through your SMSF trust deed unless it allows for such transactions.
2. An SMSF must have at least one primary purpose. It can also have secondary purposes, as long as the fund is maintained to fulfill them.
3. There are restrictions on ‘in house assets’.
4. You cannot live in or rent any property purchased on behalf of  your SMSF.
5. No one related to you can live in or rent any property purchased on behalf of your SMSF .
6. You cannot take out a loan to buy property for the SMSF unless the superannuation fund trust deed allows it.

What does all of this mean?

Looking at the rules we’ve just listed, it’s easy to see that some are largely self-explanatory. However, some clearly warrant further explanation.

The so-called sole purpose test

Let’s begin with the concept of primary and secondary purposes for SMSFs. In most cases, an SMSF is established to provide retirement benefits for its members. If so, that is considered its primary purpose. A secondary purpose may be to provide benefits in case of illness.

So what does this mean if you want to buy real estate on behalf of your SMSF? Simply put, the purchase must be made to advance the fund’s primary and secondary goals. In other words, buying a rental property to generate income for the fund is fine. Buying a beachfront property to use as a second home, renting it out occasionally and keeping the income is not.

Provisions pertaining to in-house assets

Now let’s talk about in-house assets. An in-house asset is defined as any asset that a member or a member’s relative contributes to the fund. As a general rule, any such assets cannot account for more than five percent of the fund’s total value. However, there are always exceptions to this rule.

To clarify this further, let’s say your sister owns an investment property. You want to buy it and the two of you have settled on $250,000 as a fair price. Your SMSF has $500,000 in total assets. In this case, the investment property would be classified as an in-house asset. Assuming the sale went through, the property value would account for 1/3 of the fund’s total assets. In this case, the transaction would clearly violate the rule detailed above.

But now let’s say that you have your own business, and you own the property where it is based. Let’s also suppose that you want to transfer the property into your SMSF. Because the rule we detailed above does not apply to business real estate,  this is theoretically fine. However, there is a catch. You must:

• Lease the property from your SMSF under a written lease; and
• it is a commercial lease.

Additional stipulations pertaining to borrowing

As we have already noted, there are also rules pertaining to borrowing in order to purchase property on behalf of your SMSF. Here are a few more things to keep in mind.

• Your only loan option is ‘limited recourse borrowing’.
• This type of loan only allows for the purchase of one asset.
• It tends to carry higher costs.
• You must use SMSF funds to repay the loan.
• There are potential tax implications.
• You cannot make any changes affecting the property’s ‘character’ until the loan is paid off.

But what about selling property?

Yes, it is also possible to sell property on behalf of an SMSF. Depending on your circumstances, you may even be able to sell it to yourself.

Let’s say for example, that you need to get rid of the property because it isn’t generating enough income to cover certain obligations. Now let’s say that you’re also planning on moving soon. One option may be to have the SMSF sell the property to you for fair market value so you can live there during your house hunt. There is an important caveat, however. This is that you must pay any and all applicable taxes.

The bottom line

To sum it all up, using an SMSF to buy or sell real estate is complicated. Therefore, it is important to get sound legal and financial advice from qualified professionals. If you are interested in buying or selling property through your SMSF, we are happy to provide the legal advice and guidance you need to make an informed decision. Contact our Erina Conveyancing lawyers today on (02) 4365 4249 or through our website to set up a meeting where we can discuss your needs.

Buying or selling property is one of the most important transactions you can undertake in life. Besides the many hundreds of thousands of dollars involved, there is also the significance of the real estate asset as a family home, or an important income-producing investment. That’s why it’s important to get it right.

Below is a brief overview of buying or selling a property in Queensland. There are important legal requirements and repercussions all along the way during the purchase or sale of a property asset. The wisest course of action is to avail yourself of the services of a legal firm with experience in all aspects of such transactions, particularly the conveyancing of the property.

Buying a property

There are important legal considerations in three of the most common ways to buy property: at auction, off the plan, or through private treaty.

Auction: If you buy a property at auction it’s important to understand that if you’re the successful bidder, there is no cooling-off period. This means that you must settle the contract whether or not you have organised finance to pay for the purchase, conducted an inspection of the property, or then decide to change your mind.

The take-out is that you need to be prepared ahead of time. Make sure that before the day of the auction you:

• Inspect the property;
• get an independent property valuation (to ensure you don’t pay too much);
• get your finance organised (based on the valuation);
• get a copy of the sale contract;
• get legal advice about the terms and conditions, in case you’re the successful bidder.

You should also try and find out from the agent for the property what deposit they will require if your bid is successful.

It should be noted that the cooling-off period also does not apply if, two days after bidding on the property at an auction in which you were a registered bidder, you enter a private treaty contract with the owner.

Buying privately: If you bypass real estate agents and agree to buy a property directly from a seller, ensure you have an experienced solicitor check any sale contract before you sign it. The contract should include a warning statement that provides for a five-day cooling-off period as well as a clause that indicates there will be a termination penalty of 0.25% of the purchase price if you, as the buyer, terminate the contract during the five-day period. You should also obtain an independent property valuation of the property and do your own research into the values of similar properties in the area. It is also up to you to arrange necessary inspections – building, swimming pool and pest – before signing the contract.

Off the plan: Buying a unit before it is finished has become a common occurrence in our big cities where there is intense competition for properties based on location. For a buyer, this means you are entering into a contract before the building is out of the construction phase and the title to the lot has been created.

As a result, a buyer needs to be wary of the risks involved. The seller needs to provide a buyer with a disclosure statement that provides essential details about them and you, as the buyer. It also needs to clearly identify the land or unit you are buying, including the proposed number, area and orientation of the lot. The statement should explain the proposed state of the lot at the time you will take ownership. As the buyer, you must sign and date the disclosure statement.

Legal advice should be sought before signing a contract, There are circumstances where you can back out of an off-the-plan contract, including ‘material prejudice’, where a change to the initial disclosure about the state of the land will cause you a significant disadvantage. Also check the contract for the terms of any sunset clauses, which place conditions and limits on the contract such as its cancellation by either buyer or seller.

Contracts of sale

When buying a property the contract should set out the price you are offering for the property; the details of how much and when you need to pay the deposit; and the time and date of settlement.

The contract is only binding once both the buyer and the seller have signed it. Be sure to have your legal representative see the contract before you sign it. The cooling-off period of five days applies to all residential property sales.

Once the contract is binding, you’ll need to pay the deposit within 2–3 days. If the sale is conditional, the contract might be subject to certain conditions such as the buyer organising finance, conducting a building and pest inspection, or finalising sale of their current property.

Selling a property

There is quite a lot to do when you decide to sell your property, from appointing a real estate agent (if that’s your choice) to sprucing up or renovating the property in readiness for sale. One of the most important tasks is engaging a legal professional with expertise in property transactions. They will make life a lot easier by drafting a contract of sale and help you complete any other disclosure documents. They can also help fix any difficulties with pre-settlement inspections, deal with settlement, and transfer the property title from you to the buyer.

Once a buyer makes you an offer for your property, the contract is only binding once you have both signed it. Before doing so you should be sure you can meet all your requirements under the contract, including passing on covenants and agreements to the buyer. Alternatively, you can reject the buyer’s offer by not signing the contract, or make a counter-offer.

A counter-offer is made by altering the contract to suit your terms and signing the updated document. The buyer can accept by initialling your changes, reject it or make their own counter-offer. Be sure to initial changes at every stage otherwise the contract may become invalid.

Any contract for sale should include the warning about the five-day statutory cooling-off period and the termination penalty of 0.25% of the purchase price if the buyer terminates the contract during the cooling-off period.

At Felicio Law Firm we have extensive experience and expertise in advising people whether they’re buying or selling property. Call us Erina conveyancing today on (02) 4365 4249 if you have any questions or to arrange an initial consultation.

When it comes to the rental of commercial spaces, there is usually a lot at stake for everyone involved. The landlord is banking on finding the right tenant, ideally a viable business owned by a responsible person or entity that will have no trouble respecting the premises and paying the rent. Meanwhile, the tenant is counting on finding the right space in a convenient location that meets their needs and reflects their brand.

Here’s what all landlords and prospective tenants should know about commercial leases.

Classification of commercial property

To begin with it’s important to understand how commercial property is legally defined in New South Wales. It includes non-residential property such as:

• office space;
• industrial units;
• workshops and warehouses;
• storage sheds;
• working yards.

You should be aware that retail space (located in a shopping centre or elsewhere)  is also classified as commercial property. However, you should also be aware that retail shop leases differ from other types of commercial leases. This is because they are subject to specific rules and regulations designed to protect tenants from exploitation.

Negotiation of commercial leases

In most cases, landlords and prospective tenants are free to negotiate the provisions and stipulations in commercial leases. The only exceptions to this are retail shop leases, for reasons noted above.

With that being stated, the following provisions are usually included in commercial leases:

• how long the lease will be in effect and options for renewal (if any);
• terms for payment of rent, increases in rent and so forth;
• allocation of responsibility for necessary maintenance, repairs, enhancements and structural changes;
• the extent to which the tenant can make structural changes and enhancements in the space to meet its needs;
• tenant notification and other requirements associated with the landlord’s ability to access/inspect the premises;
• mechanisms for addressing tenant breaches and circumstances in which the lease can be terminated;
• restrictions/limitations on the tenant’s ability to sublease the space (if applicable);
• the tenant’s responsibility to leave the premises in reasonable/satisfactory condition when vacating the space;
• stipulations pertaining to damages, liability for damages and related issues;
• stipulations pertaining to renovation or redevelopment of the property;
• requirements for security deposits and related matters; and
• the process for dispute resolution.

Some other things to consider

With so much at stake for both parties, it is essential that the lease is prepared properly and accurately reflects the negotiated terms and conditions. This lessens the potential for costly and unpleasant misunderstandings or disputes.

The best way to ensure that the lease document is executed properly is to have a qualified lawyer prepare it (for the landlord) and review it (for the prospective tenant). In fact, the latter should be sure to have an experienced lawyer review the lease prior to signing it.

Another thing for landlords to consider is enlisting a real estate agent to identify potential tenants, negotiate the lease and manage the property if need be.

Prospective tenants should bear in mind that they may be responsible for lease preparation fees along with your own legal fees. However, this is not always the case, and you should not be afraid to negotiate this issue along with other relevant stipulations and provisions.

In any case, landlords and prospective tenants should not hesitate to seek legal advice prior to signing a lease agreement.

Don’t leave anything to chance – contact us today

The legal team here at Felicio Law Firm is fully versed in all aspects of property law. This means our highly skilled Central Coast conveyancing lawyers are well equipped to answer any questions and concerns you may have about commercial leases. We can also help with the preparation of lease documents for landlords, and review lease documents for prospective tenants.

For assistance with these and other property matters, you can reach us by phone at (02) 4365 6069, or by email at admin@feliciolawfirm.com.au.

Don’t leave anything to chance. Contact us Central Coast Erina conveyancing lawyers today.

Conveyancing might seem like one of the less exciting aspects of buying or selling a property but it is a crucial and essential element of the process.

It can also be somewhat of a mysterious exercise, particularly if you’re a first homebuyer. The steps involved in conveyancing – the legal process involved in transferring a property from one person to another – is outlined below.

A smooth transfer is always the desired result, but this requires proper adherence to the process, including filing the correct documentation at the correct times. This process is made much easier when you consult a law firm experienced in conveyancing matters.

Before the contract of sale is signed

Say you’re the seller (or vendor) and have found a buyer for your property. The first step of the conveyancing process is the need to have a draft contract for the sale drawn up by your solicitor. You will also need to fill in and sign a number of legal forms from various government departments and source (or have your legal representative/conveyancer source) certain information to ensure the title deeds are in order; to detail any charges still owing on the property that may affect the sale; to prove the rates and charges are fully paid and up to date; and to detail whether any other restrictions (such as environmental regulations) exist over the property.

Sellers need to be aware this pre-contract stage can take a couple of weeks to complete. Once it is and all other terms such as the price are agreed with the buyer, both parties will need to sign the prepared contracts and proceed to the exchange stage.

Exchanging property

Once this process commences, the contract for sale becomes binding on the buyer and seller. Those managing the process for the seller meet with the representatives of the buyer to confirm the documents are the same and exchange the signed contracts. The contract is now legally enforceable and it is incumbent on both the seller and the buyer to comply with its terms or face certain financial penalties.

While binding, most contracts will also include a five-day cooling-off period (unless purchased at auction or, if the buyer is satisfied with the pre-contract negotiations, waived altogether). In this period the buyer can change their mind and cancel the contract, but by doing so they forfeit 0.25% of the purchase price to the seller.

If after signing the contract the buyer discovers some ‘adverse’ matter which affects the property, such as a new council regulation affecting development options, for example, they may have grounds to exit the contract. To do this the buyer will need to show the seller failed to disclose the adverse matter and also that they were unaware of the matter and would not have signed the contract had they known about it.

From the moment the contract is signed, its settlement will generally occur within six weeks or another period agreed to and set out in the contract. The buyer will also need to pay stamp duty within 90 days of the contract date or prior to settlement (unless a recipient of a first homebuyer’s grant or if buying off the plan).

Settlement

This final stage in the conveyancing process sees the buyer takes possession of the property and all remaining financial matters between the parties are finalised.

Before they take possession of the property, a buyer may conduct a pre-settlement inspection. If the property is to be sold with vacant possession, the seller will need to make arrangements to vacate the premises before settlement. The seller should empty the property of all possessions and leave it in a clean and tidy condition.

If it’s discovered there are any remaining issues regarding the property, settlement can be postponed until the seller addresses them but the contract itself, at this stage, can’t be terminated.

Ahead of the agreed settlement date, the buyer will need to organise the financial arrangements for payment of the seller. At an agreed time and place, the legal representatives of the buyer and seller will meet. The buyer will then pay the balance of the property’s purchase price, authorising the agent to release the deposit minus the agent’s commission. The seller then has to give the buyer the executed transfer document and title documents. Before this can happen, any existing mortgage over the property must be paid off and any caveats lifted.

The exchange must also be registered with NSW Land Registry Services in the new names of the buyers. If the buyer has borrowed to fund the purchase, the lender will instead take the deed, register the transfer, and then hold the deed until any mortgage loan is paid out. Provided all the documentation is in order, the keys and other access devices to the property will then be handed over.

It should be noted that the services of a conveyancer mean neither the buyer nor the seller need be present at this settlement stage.

The place of insurance

If there is an insurance policy covering the property, sellers are advised to keep their coverage until settlement is completed and then contact their insurance company if the cover is no longer required.

This is because the risk of damage to buildings or other fixtures remains with the seller until after settlement, unless the contract states otherwise. This means that any damage to the property after the exchange of contracts can give a buyer grounds to get out of the contract by giving notice in writing within 28 days of becoming aware of the damage.

Conveyancing can sound like a complex and drawn out process but it can be made much simpler by engaging trusted representatives who are experienced in this area. While you decide the big issues like price, financing and any restrictions over the property, they will do the legwork on documentation and timelines to ensure the transfer of property is as smooth as possible.

At Felicio Law Firm we offer a ‘Fixed Fee – No Ifs or Buts’ pricing structure (dependent on the property type) for all conveyancing matters, with many years experience in the process from contract to settlement on residential, rural, commercial, strata and industrial properties. Call Our Erina Conveyancing lawyers team at Felicia law firm can assist you with sound legal advice today. on  (02) 4365 4249.

Conveyancing@ERINA  is a new Central Coast business initiative created to serve a need in the market for streamlined, cost-efficient conveyancing.

A ‘Fixed Fee – No Ifs or Buts’ pricing structure is offered to ensure you understand the total cost to complete your property transaction. Different fees apply according to the type of property being sold or purchased. These may include a block of land, a residential home, a unit in a strata complex, a business premise or commercial unit in a retail or industrial precinct, a rural lot in a subdivision or a unit in an aged care facility

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