Conveyancing is the process of buying or selling a property, which can be complex and is best done using expert solicitors.
Of particular importance when buying or selling is making sure all the correct conveyancing searches are carried out. These searches are normally carried out by your solicitor or conveyancer and provide essential information in relation to the property. Searches give the buyer comfort that the property they are buying is fit for purpose and will identify costs that may be associated with the property.
Here at Avant Law we know what we are looking for and can advise along the way to make sure there are no surprises after completion.
The following information explains some key concepts and identifies important searches to undertake during a property transaction.
Where the property is located and what type of property it is will determine the searches we need to carry out.
In New South Wales for example, there is a requirement for vendor disclosure and a range of searches or title information must be attached to the contract for sale. No property can be advertised for sale in New South Wales without a contract for sale having been prepared.
By contrast, in Queensland, it is very much “buyer beware” and searches are not generally attached to the Contract for Sale. In that case, we recommend a range of searches that should be carried out during the conveyancing process to identify any issues.
First, a title search is critical to ensure the vendor is who they say they are and to identify any competing priorities on the title. Some other key searches required to demonstrate this are:
Search type
Description/ outcome
Building and Pest
This is normally carried out by a specialist building and pest inspector. They visit the property and check its condition and look for evidence of disrepair or infestation of pests. These reports are generally quite thorough, but it is often the case that the existence of furnishings and other obstructions will limit access to some areas of the building.
ASIC or Bankruptcy search
These searches will generally identify if the other party is solvent and actually able to buy or sell the property. They may also give an indication of creditworthiness.
Title
A title search identifies the owner of the property and lists any registered mortgages, easements or covenants.
Easement or Covenant
If an easement or covenant is registered on title, we will be able to obtain a copy and provide details of any associated maintenance obligations, 3rd party rights or restrictions on what you can do with the property.
Strata/Community Title or Common Property
If the property is strata or community title, then there will be shared or common property which may also have easements or covenants registered on it. These may also place obligations on owners.
By-Laws
If the property is strata title, then obtaining a copy of the by-laws is essential to understand the rules of the building.
Plans
A copy of the registered plan of the land or strata lot is obtained, so you are able to properly identify it.
Council
There are various of council searches that may need to be carried out. These range from determining if there are outstanding rates or infrastructure charges, to making sure all the correct development approvals were obtained and there are no unlawful structures erected on the property.
Water Infrastructure and costs
Make sure that if water is connected to the property, there are no outstanding amounts payable or drainage issues. It may also need to be considered if any structures have been constructed over water pipes or drains, as these may need to be demolished if there is a problem.
Roads
If there is any planned road widening or construction of new roads or tunnels nearby, it is prudent to identify this and avoid buying a property that could in the near future be resumed. A similar rail search may be required.
Mines
It is prudent to search for historical or current mining activity on or under the land.
Contamination
Although the land may be residential, a previous use could have left contamination. It is therefore prudent to identify this as there could be unexpected costs associated with controlling or remediating the contamination.
Heritage
A property could appear on a Heritage Register for a number of reasons. These include Aboriginal, environmental, built and archaeological heritage. Having heritage protection may prevent further development or use of the land.
Telephone
Do you want to know if a 5G tower is going in near your potential property? Records can easily be searched to identify if there are any plans in place to install a telephone tower.
Land Tax
To ensure no liability to pay land tax is passed to the purchaser, a land tax search will disclose if land tax is payable.
This is general advice only. The different searches you need depend on the state or territory in which the property is located, and its intended use. If the property is rural or commercial, there will be additional searches to consider and a more extensive due diligence is recommended.
Here at Avant Law, we have access to all the relevant databases and search engines. We can easily undertake all the relevant searches and provide you with up to date and accurate advice.
A buyer was unaware there was a $600,000 outstanding infrastructure charge registered against the property they were buying. Had they undertaken a council search, it would have identified this and the buyer could have either terminated the contract or negotiated a price adjustment. Because the buyer was unaware this outstanding charge existed, after completion when Council chased payment, the buyer was liable.
Another buyer was unaware a telecommunications tower was going to be installed across the road from their property. If correct searches had been undertaken by the client’s previous lawyer prior to settlement, they may not have proceeded with the purchase.
Speaking to us early and ensuring the correct searches are carried out with enough time to obtain the results, is critical. Without obtaining searches you will not have the full picture of the property. This is important in states where vendor disclosure is required, such as New South Wales and Victoria. It is also essential if you are buying.
Lindsay McGregor is a lawyer and the Head of Property in our Avant Law team. He has been working in property related matters for almost 20 years. He was previously a partner at a highly regarded, national firm and has considerable experience in property transactions across Australia. He has previously acted for some of the Country’s biggest property investors and developers and can use this experience to your advantage.
Disclaimer: The information in this article is general in nature and is current to 15 July. It does not take into account individual circumstances and is not professional legal, financial or taxation advice. Avant Law provides legal services. It does not provide taxation or financial advisory services.
Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.
