Buying and selling a farm, business or home

The transfer of property ownership is at heart a legal matter. That legal transfer and the entire process of managing the transfer is called conveyancing.

Conveyancing can be a simple process when everything is straightforward, but because, for many people property is their main asset, it is reassuring to know that the process is being done correctly and that potential problems are identified and dealt with before any contract of sale is signed.

Stringer Clark has a dedicated conveyancing service staffed by professionals who have many years of experience. We can help you with the purchase and sale of:

  • Residential homes
  • Commercial properties; and
  • Farms and farming land, including water & grazing rights.

In addition, we will help you with:

  • Adverse possession claims
  • Building disputes
  • Town planning issues; and
  • Advice on the preparation of leases for commercial properties.

The importance of getting it right

Once you sign a contract, you loose the power to negotiate. You may be committing yourself to a clause or a condition that jeopardizes your right of possession, or in some other way compromises your rights.

Are you buying a property?

If you have your eye on a property, you should call us before you sign anything. We will brief you on important information concerning what it is you really need to be on the look out for during an inspection and afterwards. For example:

  • Have you properly measured the land?
  • Are you aware of the correct Stamp Duty and Titles Office fees?
  • What are reasonable timelines in allowing for finance and in dealing with your bank or finance company?
  • Are you entitled to any government benefits or fee exemptions?
  • Have you had someone with your interests first and foremost check the official documents and the contract?

Buying and selling farms – water rights, bores, equipment

The conveyancing issues for the transfer of farms and farmland can be a lot more complex than for other types of land and property. Typically, there are a greater number of documents, including leases and licences that you may have to consider. These cover the transfer of such items are:

  • Access and use of unused roads
  • Grazing licences
  • Water rights and the legality of bores and bore licences

When a farm is sold, it is often bundled with other items such as farming equipment, plant, silos, generators and so on. You have rights to make proper inspections and should be aware of what they are.

A relatively common problem to consider when buying and selling larger farms is the existence of multiple titles, and the potential savings that can be made on Stamp Duty by separately transferring the titles.

Special conditions on the sale of farms

You should also be aware of the larger number of special conditions that might apply to the transfer of farming titles, given there is often a significant time lag while settlement is completed.

Farms are often working enterprises and you therefore have a right to ensure that your farmland is properly cared for and not exploited at your expense.

When  farmland is sold, special conditions are often agreed to on the spreading of fertilisers such as superphosphate, on restricting the numbers of animals grazing on your new property, the cutting of hay and so on, prior to the transfer of ownership. You should know your rights and what you can do to enforce them.

Are you selling a property?

When selling, you should talk with us before you place the property on the market so that you are clear about the sale process, what your options are, the type of documentation you will need to provide, and when you should contact your mortgagee.

Are property laws the same in South Australia and Victoria?

No. There are differences in the process of conveyancing within each State. You should check with us before buying or selling, or relocating interstate.

Relocating within Victoria

However, if you are relocating within Victoria, the conveyancing can be done from any location. This means there is no need to change solicitors if, for example, you are relocating to Melbourne, or to another regional area. With offices across the State, we can assist you from an office convenient to you.

Some background information on the law and process of conveyancing

The sale of real estate is not conveyancing. The negotiation process, including the drafting of the written legal document setting out the terms and condition of sale, is a legal process. This is because it creates a legal relationship that binds two parties and gives rise to legally enforceable rights.

The preparation of the sale documents requires a solid knowledge and understanding of the law associated with real estate contracts, the Sale of Land Act, the Transfer of Land Act and the laws relating to contracts, trade practices and consumer law.

The vendor requires legal advice on their obligations and responsibilities in selling property. There are strict rules that the seller should have explained to them.

People are often confused by what constitutes the conveyancing. It's not unusual for a lot of negotiations to take place prior to agreeing on a sale price and conditions. While these deliberations are often governed by the law, they are not part of the conveyancing process itself which does not start untill a contract of sale has been signed by both parties.

Every vendor who sells real estate in the State of Victoria is governed by the provisions of the Sale of Land Act, and in particular Section 32 of the Sale of Land Act. It is Section 32 of the Sale of Land Act that lends its name to what is called the Section 32 Vendor's Statement or, more commonly, the "Section 32".

The conveyancing process begins once the contract has been negotiated and signed by both parties.

For buyers, conveyancing cannot start until the estate agent has sent a copy of the signed contract to the buyer's lawyer. However, because the legal process required to negotiate the terms of the contract can be technical and legally complex, you really should consult an experienced lawyer prior to signing a contract.

Call 1800 641 743 or find us at an office near you for advice on a property matter.

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