(03) 9720 2922

Jansen Walsh & Grace

 

Reminder.  If you are thinking about selling a residential property, your purchaser will qualify for the 25% reduction in duty (50% for a new home), if they must sign your Contract of Sale by 30 June.  That duty waiver will cease on 1 July.

“I need a Contract of Sale.  How long does it take?”
We can provide a Contract of Sale within 24 hours.  It will take a little longer if iyou are selling off-the-plan or a commercial property.  We can produce the Vendor Statement within 24 hours after you provide us with all the information.  However, we will not be able to attach all the certificates until we receive them from the relevant authorities.  It is a very short time if there is no owners corporation.

“I am selling my property.  What do I need to know?”
After you have engaged a selling agent, the selling agent will ask you to get a Vendor Statement.  This is a disclosure document for the purchaser under the purchaser protection provisions of the Sale of Land Act.

Building approvals
You must give details of any building approvals obtained in the last 7 years.

In some circumstances where building works have been carried out by an owner-builder, it is necessary to give details of the relevant building defects insurance.  If you have carried out any works as an owner-builder or are aware that a previous owner has done so, please let us know so that we can make further enquiries and ensure that the appropriate disclosure is made.  If you have any certificates or policies in relation to builder's insurance please send them to us.


“What are some of the other things I must disclose?"
Purchasers sometimes buy homes which were the scene of a murder, or are infested with termites, have hidden sinkholes or the building work is illegal.  Changes to the Sale of Land Act now require you to inform the purchaser of the following in the Vendor Statement:

  • prior tests or investigations have revealed (or your or your agent otherwise know of) a defect in the structure of the building, a termite infestation, combustible cladding, asbestos (including loose-fill asbestos insulation) or contamination through prior uses of the property;
  • the underlying cause of an obvious physical defect is not readily apparent upon inspection (for example, whilst a large uncovered crack in a wall would be obvious to a purchaser upon inspection, the underlying reason for the crack, such as defective stumping, may not);
  • there has been a significant event at the property, including a flood, or a bushfire;
  • there is a history of pesticide use in the event the property had been used for horticulture or other agricultural purposes;
  • there are restrictions on vehicular access to a property that are not obvious during a property inspection (such as truck curfews or where access is via an easement that is not apparent on the Certificate of Title or plans);
  • facts about the neighbourhood surrounding the property which may not be immediately apparent upon inspection (such as sinkholes, surface subsidence, development proposals) that would likely affect the use and enjoyment of the property to a greater extent than the usual disturbances and inconveniences of occupying land of the kind and in the local area of the land being sold;
  • building work or other work done without a required building permit, planning permit or that is otherwise illegal;
  • the property during the current or previous occupation has been the scene of a serious crime or an event which may create long-term potential risks to the health and safety of occupiers of the land, such as:
    • extreme violence such as a homicide;
    • use for the manufacture of substances such as methylamphetamine; or
    • a defence or fire brigade training site involving the use of hazardous materials.

You do not have to include federal documents in their Vendor Statement.  On 23 September 2020, the Supreme Court decided that a vendor was not required to include gazetted instruments and documents concerning  threatened species and ecological communities by Commonwealth Minister for Environment in their Vendor Statement.

Swimming pools and spas
On 1 December 2019, new laws to improve swimming pool and spa safety came into force.  They require impose registration, inspection and certification requirements for property owners.

If you are selling your property, make sure that your pool and spas are registered with your local council.  The regulations also require that the safety barrier be inspected every four years.

Cladding
The new Cladding Safety Victoria Bill may assist you if the building contains cladding.  It enables to enable Cladding Safety Victoria to prioritise buildings for potential financial assistance for cladding rectification work and register owners and owners corporations of those buildings; to determine the amounts of financial assistance for cladding rectification work and make payment for those amounts under funding agreements; and allows Cladding Safety Victoria to provide guidance to owners and owners corporations of buildings and other persons and bodies in relation to cladding rectification work in order to mitigate risk.

Concealing material facts in Vendor Statement
The Sale of Land Act makes it a criminal offence for a vendor who publishes any statement, promise or forecast which they know to be misleading or deceptive, or fraudulently conceals any “material facts,” or recklessly makes any statement or forecast which is misleading or deceptive.  This is sometimes an area of misunderstanding, as we have sometimes encountered vendors of $1 million plus properties who are reluctant to pay for government or municipal authority certificates which must be attached to the Vendor Statement.



"Can’t I save money by recycling my old certificates and titles I already paid for?"
If you have had your property on the market before, we will have to get new certificates if the old certificates are old.  There has been a recent instance where, in order to save money, the vendor recycled old certificates and used an old copy of the certificate of title.  The property was rezoned in the meantime.  The purchaser, as it was entitled to do, rescinded the contract.  The vendor had to return the deposit, pay the agent’s commission and marketing fees and to put the property on the market again.  Recycling your old certificates and an old copy of the certificate of title is false economy.



Contract of Sale
The next step is to provide the purchaser with the Contract of Sale.



Beware of rogues offering to buy your property for less than its value
Watch out!  Rogue developers and estate agents are targeting elderly and unsophisticated home owners with unsolicited offers to purchase their properties.  Recently bereaved widows are a favourite target.  The catch is that the price they offer is always significantly below the market value.  They then re-sell your property for a quick profit.

Beware selling your property “subject to contract”
Offers to purchase property “subject to contract” are often ambiguous.  In The Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2018] VSC 326, Riordan J held that an offer to purchase real property which stated “The offer is subject to the contract being executed” was not intended to create binding relations until a formal contract of sale of land was executed.



“When can I get the deposit?”
You have sold your property.  The purchaser will pay a deposit to your selling agent and the selling agent will retain the deposit as stakeholder for both parties.  The deposit can be released to you from stakeholding, once a Section 27 Statement is given to the purchaser.

The deposit can be released once the following requirements have been met:

  • the Section 27 Statement signed by you has been delivered to the purchaser;
  • any condition in the contract for the benefit of the purchaser (eg, subject to finance or sale of the purchaser's property) has been satisfied;

We can ask the purchaser to sign the Section 27 Statement so that the balance of the deposit can be released to you.  In some instances, a purchaser may neglect to sign the Section 27 Statement, in which case the legislation permits release of the deposit once 28 days have passed after delivery of the Statement to the purchaser.

In most instances, a purchaser will want a letter from your lender on the lender’s letterhead spelling out the Section 27 information. That is not a requirement of the legislation but nevertheless a letter from your lender will likely be helpful in earlier release of the deposit. Most lenders know of Section 27 statements and have a computer template ready to print the letter with the information when requested. Some banks refuse to give the letter directly to us because of privacy considerations. That all means that during the transaction, we may ask you to approach your lender for a “Section 27 letter” so as to speed release of the deposit. You may if you wish obtain that letter now or wait until the property has been sold. When you have that letter please deliver it to us. There is usually no fee attached to a Section 27 letter.       

The Section 27 Statement needs to include information on your mortgages including the current payout figure.

“My co-owner is refusing to sign the Client Authorisation Form”
What if your co-owner refuses to sign the Client Authorisation Form?  In Ventura v Ventura [2018] VSC 485, Derham AsJ made an order on 29 August 2018 that the co-owner sign the Client Authorisation Form and, if he failed to do so, the Prothonotary sign it.



Properties sold for $750,000 and over
Contracts of Sale where the sale price is $750,000 or above are subject to a 12.5% withholding tax unless you provide a tax clearance certificate to the purchaser.  What this means is that unless the purchaser receives the certificate from you, the purchaser must retain the 12.5% tax on the sale price and remit it to the ATO.  To avoid 12.5% being deducted from the sale price, you must obtain a tax clearance certificate from the ATO and provide it to the purchaser.  We can do this for you.



What we do
We know that selling your property can be a very anxious and stressful experience.  We provide personalised service with up to date property advice for both residential and commercial properties.  You want a firm which has the specialist expertise and resources to take the sale of your property through to completion with expertise. You do not want to be working with a firm where the conveyancer works one day a week or where the time taken to deal with the sale of your property can be far too long.  Our aim is therefore to ensure that you are at ease and confidant throughout the transaction.




About us
We have 40 years' experience in assisting people in Melbourne's Outer Eastern Suburbs and the Yarra Ranges to sell their properties (conveyancing).



 

 

 











 




 

 




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Property investment lending just got tighter!  APRA has issued a directive to the banks which requires them to tighten up the lending criteria for property investors.  This includes a stricter assessment for the borrower's income and increasing the amount the borrower must contribute to the purchase.  As a result, Westpac requires borrowers to contribute 20% of the purchase price.  The other banks have introduced, or are in the process of introducing, similar measures for lending for property investment. 

Property investment lending just got tighter!  APRA has issued a directive to the banks which requires them to tighten up the lending criteria for property investors.  This includes a stricter assessment for the borrower's income and increasing the amount the borrower must contribute to the purchase. As a result of the directive from APRA, lenders are now tightening up their lending to investors to meet APRA’s requirements that annual investor lending growth be no more than 10%.


Furthermore, we are finding that many valuations for investment properties are coming in at 10% to 15% lower than purchase prices or because of the new APRA directive to lenders.

As a result, Westpac requires borrowers to contribute 20% of the purchase price.  The other banks have introduced, or are in the process of introducing, similar measures for lending for property investment.  However, one lender based in the Hong Kong Special Administrative Region of the People's Republic of China is offering lending for property investments in Australia, including Melbourne, without the investor having to fund any of the purchase price.   However, one lender based in the Hong Kong Special Administrative Region of the People's Republic of China is offering lending for property investments in Australia, including Melbourne, without the investor having to fund any of the purchase price.  

From Monday, 9 November, you will not be able to buy and sell real property in Victoria without verification of your identity.  This requires a client authorisation and an identity agent certificate.  This is the first step in the process of abolishing paper titles.  As Jansen Walsh & Grace was one of the first law firms in Melbourne to become a PEXA subscriber and has conducted electronic settlements, we can guide you through the process. 

Latest news 

The federal government has announced that it will not implement the recommendation by the Financial System Inquiry (chaired by David Murray) to prohibit limited recourse borrowing arrangements by SMSF superannuation funds.

Small businesses, like consumers, are vulnerable to unfair terms in standard form contracts as they are often offered contracts on a ’take it or leave it‘ basis and lack the resources to understand and negotiate contract terms.

The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015, if enacted, will amend the ASIC Act and the Australian Consumer Law to extend the unfair contract term protections currently available to consumers to cover those businesses with fewer than 20 employees where the contract price does not exceed $100,000, or $250,000 if its duration is more than 12 months.

It will allow unfair contract terms to be declared void or for the contract to continue to bind the parties if it can operate without the unfair term.


Property investment lending just got tighter!  APRA has issued a directive to the banks which requires them to tighten up the lending criteria for property investors.  This includes a stricter assessment for the borrower's income and increasing the amount the borrower must contribute to the purchase.  As a result, Westpac requires borrowers to contribute 20% of the purchase price.  The other banks have introduced, or are in the process of introducing, similar measures for lending for property investment. 

Property investment lending just got tighter!  APRA has issued a directive to the banks which requires them to tighten up the lending criteria for property investors.  This includes a stricter assessment for the borrower's income and increasing the amount the borrower must contribute to the purchase. As a result of the directive from APRA, lenders are now tightening up their lending to investors to meet APRA’s requirements that annual investor lending growth be no more than 10%.


Furthermore, we are finding that many valuations for investment properties are coming in at 10% to 15% lower than purchase prices or because of the new APRA directive to lenders.

As a result, Westpac requires borrowers to contribute 20% of the purchase price.  The other banks have introduced, or are in the process of introducing, similar measures for lending for property investment.  However, one lender based in the Hong Kong Special Administrative Region of the People's Republic of China is offering lending for property investments in Australia, including Melbourne, without the investor having to fund any of the purchase price.   However, one lender based in the Hong Kong Special Administrative Region of the People's Republic of China is offering lending for property investments in Australia, including Melbourne, without the investor having to fund any of the purchase price.  

From Monday, 9 November, you will not be able to buy and sell real property in Victoria without verification of your identity.  This requires a client authorisation and an identity agent certificate.  This is the first step in the process of abolishing paper titles.  As Jansen Walsh & Grace was one of the first law firms in Melbourne to become a PEXA subscriber and has conducted electronic settlements, we can guide you through the process. 

We offer advice on your Contract of Sale before you buy: normally $275, but only $110 (free if you retain us for your conveyance) or$150 for off-the-plan purchases (also free if you retain us for your conveyance).


Buying off-the-plan
Watch out!  Several of our clients have purchased from developers selling properties off-the-plan in order to show the pre-sales to the bank to get finance.   Once the developer gets finance and the dwellings are almost finished, they delay registration and use the "get out of jail" card in the Contract of Sale to terminate the contract and resell the same property at a higher price, often to the same purchaser, who must sign a new Contract of Sale to re-purchase the same property at a higher price.
We offer advice on your Contract of Sale before you buy: normally $275, but only $110 (free if you retain us for your conveyance) or$150 for off-the-plan purchases (also free if you retain us for your conveyance).


Buying off-the-plan
Watch out!  Several of our clients have purchased from developers selling properties off-the-plan in order to show the pre-sales to the bank to get finance.   Once the developer gets finance and the dwellings are almost finished, they delay registration and use the "get out of jail" card in the Contract of Sale to terminate the contract and resell the same property at a higher price, often to the same purchaser, who must sign a new Contract of Sale to re-purchase the same property at a higher price.