CONVEYANCING PROCESS Summary Conveyancing Process: 1) A contract of sale is drawn up 2) Formation of contract of sale 3) After formation 4) Settlement 5) Lodgement 6) Registration Parties · Seller (vendor) · Buyer (purchaser) · Outgoing (seller's) mortgagee · Incoming (buyer's) mortgagee A contract of sale is drawn up REIQ standard form contracts are commonly used The contract must specify the essential terms of the agreement: · Price · parties · identify of property · inclusions/exclusions · completion date The contract will usually be conditional upon the purchaser obtaining f i nance and being satisf i ed that there are no existing structural defects or defects in title the vendor will be unable to remove before settlement Contract will usually specify that time is of the essence Contract must be in writing and signed to be enforceable PLA s 59 See also PLA ss 10, 11 To transfer an interest at law requires an instrument in writing signed by the transferor PLA s 10 Wrt creating interests in land: a) creation / disposal of interest must be signed by the person creating / conveying the same b) declaration of trust must be manifested by some writing signed by person declaring the trust (or their will) c) disposing an equitable interest must be proved by writing of the person disposing of it (or their agent / will) PLA s 11 Upon entering into the contract of sale the purchaser takes an equitable interest in the property, namely the equitable fee simple Adam McRae LLB301 - Real Property Law
Formation of Contract of Sale Deposit paid, usually to a real estate agent to hold on trust Upon entering into the contract of sale the purchaser takes an equitable interest in the property, namely the equitable fee simple, which is a caveatable interest Re Henderson's Caveat A settlement notice can be lodged at this point by buyer or mortgagee - reserves a position in registration queue see LTA s 141 Vendor holds the property on trust for the purchaser Risk - passes to the purchaser, but note: · money payable under any insurance policy wrt damage / destruction to the vendor is payable upon completion, not when risk passes (PLA s 63) · right to rescind before completion / taking possession for destruction / damage to dwelling making it unf it for dwelling - upon rescission money paid by purchaser will be refunded (PLA s 64) Insurance Should occur at this stage or before the contract is signed Where a seller has an insurance policy but the buyer does not, the buyer can rely on the seller's insurance policy despite no privity of contract PLA s 63 Right to rescind the contract for destruction of or damage to dwelling, making it unf it for dwelling PLA s 64 After Formation of the Contract 5-business day cooling of f period after contract signed - applies to residential property sales (not auction sales or commercial property): Property Occupations Act 2014 (Qld) [formerly PAMDA] ss