Buying or selling a home

The short answer is no they can't! Solicitors and real estate agents play very different roles in conveyancing.

Solicitors are property/conveyancing experts who have been trained in this area of law and have the competence to guide you through a transaction. They are your representative (whether you are the buyer or the seller) and will ensure your interests are protected.

As each property is different, so is each conveyance. Your solicitor can advise you on the need for special conditions, before signing the contract, and other legal matters which may be relevant when buying a property.

Real estate agents or property agents are the sellers’ representatives only who receive a commission from the seller when the property is sold. The real estate agent is responsible for obtaining the best price and contract terms for the seller – they are understandably focused on completing the sale only.

A real estate agent is not qualified to give legal advice on the contract, draft clauses or modify the pre-printed contract in any way. Any changes should be prepared by your solicitor.

You've found the right property what happens next?

When you have expressed your interest in purchasing a property, the real estate agent will usually prepare a standard contract for you to sign. A standard contract for the purchase of residential property has been developed by the Real Estate Institute of Queensland (REIQ) and Queensland Law Society.

But before you sign anything STOP!

Now is the time to seek advice from a property solicitor. Send a draft contract and disclosure material to your solicitor to make sure they are correct and that they meet your needs. A standard contract may not deal with the individual circumstances of every transaction.

If necessary, your solicitor can add special clauses to the contract, for example:

• the purchase may depend on the sale of your existing property
• the purchase is subject to additional searches you would like to undertake, for example, flooding history searches
• the sellers have obtained all necessary statutory approvals and complied with those approvals.

It may also be useful to obtain an independent valuation of the property before you sign the contract.

Standard contract residential property sales in Queensland are subject to a buyer’s cooling-off period of 5 business days.

The cooling off period starts from the date the buyer (or their lawyer) receives a copy of the contract signed by both the buyer and the seller.

If you, the buyer, decide not to proceed with the sale within that period, you must give notice to the seller in the specified way to cancel the contract; you must pay the seller 0.25 per cent of the purchase price of the property. If your deposit exceeds the 0.25 per cent, the balance must be refunded to you.

A note about buying at auction:

No cooling-off period applies to:

• buyers who purchase at auction; or
• to contracts where a registered bidder enters intoa contract by 5pm on the second clear business day after the property was passed at auction.

Townhouses or units are usually part of a strata title scheme.

When becoming an owner, you take on a relationship with the other owners in the scheme and the body corporate such as:

• sharing the ownership of common areas (eg lifts, stairwells, front entrances, pool)
• becoming subject to the by-laws of the body corporate
• becoming a member of a body corporate — you are jointly and indepdendantly liable for your portion of the body corporate’s debts.

The body corporate is made up of all of the owners. It decides issues about the common property, concerns of owners and maintenance of the complex.

Owners regularly contribute money to the body corporate for day-to-day ongoing expenses (administrative fund) and anticipated long term costs (sinking fund).

You should ask your solicitor to explain these ongoing obligations that you will have if you buy a property in a strata or community title scheme.

Buying a property at auction is different to buying through the standard sale process where a buyer makes an offer and the seller accepts (this standard sale process is known as a "private treaty").

If you are the successful bidder at an auction, you must sign the contract. This means there is no cooling off period - so you won't be able to change your mind.

It also means that if you are the successful bidder you are buying the property on an unconditional basis. This means you cannot try to get out of the sale because, for example, you do not have the money/finance or there are problems with the property that you discover afterwards.

In a private treaty sale, the contract can be signed subject to conditions such as your finance being approved, or the results of searches and inspections such as a building and pest inspection.

If you are looking at buying at an auction you need to be prepared. Here are some of the things you may want to do before you bid:

• inspect the property
• arrange your finance
• get a property valuation
• consider obtaining the basic searches beforehand
• do your own research of the market
• get a copy of the contract
• see a solicitor - your solicitor will be able give you legal advice about the terms and conditions of the contract in case you’re the successful bidder. They can also organise to do the necessary searches on the property including title, land tax, environmental and contaminated land, and Department of Transport and Main Roads searches.

While it is not legally required to have a solicitor to assist you when you are selling your property, you will save yourself a lot of time and potential stress by having one.

The reality is there are important legal implications when you sell a property. You'll need to understand all the documents and ensure they are completed correctly and understand what things you need to disclose to the buyer. Not to mention scheduling settlement and ensuring the funds are transferred smoothly from the buyer to you and more.

While most property transactions are straightforward, there are always exceptions to the rule. If negotiations or adjustments to the contract are needed this can be tricky to handle on your own.

Having a solicitor means that they can take care of these details so you can focus on other things.

As a seller, your conveyancing solicitor can help you with:

• reviewing the form of appointment with the real estate agent - this covers how they will sell your property as well as rates for commission and other payments
• getting together the documents for warning and disclosure statements that must be completed
• specifying what fixtures and fittings are included
• understanding your obligations to any tenants that are living in the property
• scheduling the date of and completing settlement on your behalf and, if relevant, the timing of any new home purchase
• any special terms that you want in the sale. 

If you are selling a residential property, you are required to disclose certain information to the buyers before they enter into a contract.

There may be penalties for failing to comply with these requirements and the buyer may be able to terminate the contract and recover compensation from you.

These obligations cover a wide range of issues including:

• any encumbrances on the title
• pool safety certificates
• whether the land is on the contaminated land register or environmental land register
• applications or orders about a tree on the property
• requirements for compliant smoke alarms
• requirements for approved electricity safety switches

If you are selling a unit or townhouse, you must also provide the buyer with certain information about the body corporate.

There are also obligations in relation to capital gains withholding clearance certificates, which depend on your individual circumstances.

A solicitor will be able to help make sure you satisfy the various disclosure requirements and other obligations as a seller.