Conveyancers’ duties

• A buyer’s conveyancer

  The duties of a buyer’s conveyancer include:

  • reviewing and advising on the contract before it is signed and recommending amendments;

  • advising on how the property should be owned and stamp duty treatment;

  • conducting a verification of identity;

  • liaising with the incoming lender (if any) to satisfy their requirements;

  • ordering and reviewing searches and certificates and comparing them to the vendor’s statement;

  • advising on any section 27 statement;

  • reviewing the GST withholding notice and capital gains tax clearance certificate(s);

  • preparing the Duties Online documentation to enable the buyer’s stamp duty to be assessed;

  • setting up an electronic conveyancing workspace;

  • preparing the statement of adjustments;

  • calculating what funds are needed for settlement, making sure that these are available from the lender and/or buyer, and directing where funds are to be transferred; and

  • advising the authorities of the change in ownership. 

• A vendor’s conveyancer

  The duties of a vendor’s conveyancer include:

  • taking detailed instructions to enable preparation of the vendor’s statement and contract;

  • ordering the searches and certificates needed for the vendor’s statement;

  • preparing the vendor’s statement and contract of sale;

  • providing the contract to the selling agent;

  • conducting a verification of identity;

  • preparing a section 27 statement and requesting early release of the deposit;

  • preparing the GST withholding notice and ensuring the vendor orders a capital gains tax clearance certificate from the ATO;

  • initiating the Duties Online documentation to enable the buyer’s stamp duty to be assessed;

  • arranging for the discharge of the vendor’s mortgage(s) (if applicable);

  • reviewing the transfer, statement of adjustments and settlement statement;

  • directing the buyer on how the sale proceeds are to be applied; and

  • setting up an electronic settlement workspace or arranging a paper settlement and coordinating settlement on the vendor’s behalf.

• Fees and charges

  In addition to the balance of money due at settlement – which is usually the contract price, plus adjustments and any GST, and less the deposit held by the agent – there are also additional fees that need to be accounted for.

  The buyer must pay:

  • LUV’s search and certificate fees (it is common for a buyer’s conveyancer to pay these fees and then seek reimbursement from the buyer at settlement as a disbursement on their tax invoice);

  • registration fees to LUV on all the instruments registered on the title (e.g. a caveat, transfer and mortgage) – see the calculator here: www.land.vic.gov.au/land-registration/fees-guides-and-forms/transfer-of-land-fees-calculator;

  • land transfer duty – the amount of duty is based on the purchase price (for current duty rates, see www.sro.vic.gov.au);

  • the fee to use an electronic conveyancing platform; and

  • their conveyancer’s fee.

  The vendor must pay:

  • the estate agent’s fee (which is usually deducted from the deposit);

  • the expenses of the sale (e.g. advertising and marketing, which are usually deducted from the deposit);

  • the fees for certificates and searches necessary to complete the vendor’s statement;

  • any fees for discharging a mortgage and/or withdrawing a caveat, which are necessary to hand over a clear title to the buyer;

  • the fee to use an electronic conveyancing platform; and

  • their conveyancer’s fee.

  These additional fees for the vendor are usually deducted from the funds due to them at settlement. Any remaining money after these fees are paid is deposited into the vendor’s bank account. In some instances, the vendor will not have enough money to pay out their loan and will need to use the deposit funds at settlement. The vendor’s solicitor or conveyancer can organise this with the real estate agent before settlement.

Conveyancers’ duties

Chapter: 6.2: Buying or selling a house

Contributor: Laura Vickers, Director, Nest Legal; Accredited Property Law Specialist

Current as of: 1 September 2024

Law Handbook Page: 498

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