WHAT IS EXCLUDED FROM OUR FEE?
The fee quoted includes acting on your behalf for matters that are usual in relation to a standard conveyance but excludes the following:
No financial/tax/matrimonial advice
Advice regarding the commercial viability of the transaction or the tax, succession, matrimonial or other financial implications of the sale. If you require advice on the commercial viability or the tax implications of the sale you should seek the advice of a specialist financial adviser or tax professional such as your accountant.
If you are buying a property it is up to you to apply for finance (if required) and tell us whether your finance approval is satisfactory. A finance approval is often subject to satisfactory valuation or other conditions. If so, it is up to you to arrange for the valuation and decide whether you are able to satisfy any condition of the finance approval before notifying us that you have finance approval. If you are selling a property it is up to you to notify your mortgagee of the sale and advise them that we are acting on your behalf. This will need to be done at least two weeks prior to settlement.
We will as part of the conveyance, need to liaise with your financier/ mortgagee to arrange settlement, however, any instructions you give us concerning your loan, the security documents or any certificates required by your financier are beyond the scope of this retainer.
Building and Pest
If you are buying a property it is up to you to obtain any building and pest inspection reports and tell us whether it is satisfactory to you. We confirm that our retainer does not extend to giving advice regarding the building and pest inspection report.
Town planning information
The work to be done as part of this retainer does not include advice about any of the following issues unless you specifically instruct us to do so:
The development potential of the site, whether nearby land is subject to development applications or development approvals which could affect the value or potential development of the site, whether any applications over the site are current or have lapsed, whether the site and structures on the site have all necessary approvals, whether any approvals over the site have lapsed, whether any old or historic approvals are still current and binding on the site. For example, without limiting the above, whether a Bushfire Management Plan affects the property. If you are concerned about the impact of any such plan on your use of the property (and whether one exists) then you should make your own enquiries with the relevant local council.
The laws about compensation for changes in the town planning scheme, deadlines to apply under superseded versions of the town planning scheme or other deadlines to make and pursue applications for approvals, whether the seller should assign certain rights to make applications to the buyer, any existing use rights, infrastructure charges which apply on development, whether the site is subject to call in powers by the government, any existing or proposed planning scheme amendments, the effect of the South East Queensland Regional Plan, the effect of current and future government planning policies.
Local laws including local laws concerning the protection of vegetation, noise including industrial noise, road noise, rail noise, aircraft noise and future planned increases in noise levels from these and other sources, current and future transport routes, vegetation controls, whether the site has been illegally cleared in the past.
Advice in relation to adverse search results
If searches reveal adverse results we suggest you instruct us to give you specific advice about your contractual rights and any remedies that you may have. The advice to you will depend upon the nature of the adverse search result and the circumstances of your contract.
Buyer Beware – the contract does not protect against adverse search results in some circumstances.
In Queensland the onus is on the buyer to undertake searches and satisfy itself in relation to the property. There is no obligation on the seller to tell you about the property or any of its defects or other issues, except for limited contractual warranties and statutory disclosure.
Common practice is that contracts are usually signed first and searches conducted post contract.
This becomes a problem for buyers because adverse search results may not be identified in sufficient time for the buyer to identify issues and exercise any remedy against the seller under the contract.
Where the contract is not signed a buyer can protect itself against adverse search results by including a special condition which can make the contract subject to satisfactory searches or can oblige the seller to compensate the buyer in the event of adverse search results.
Where the contract has already been signed there is generally no opportunity to add special conditions. In some limited circumstances it may be possible to negotiate amendments to the terms of the contract during the cooling off period or while the contract is still conditional.
The searches which we have identified in the table of standard searches are essential for a buyer to conduct in the conveyancing process and should be conducted as soon as possible. In that way:
it might be possible to identify an adverse search result prior to
the contract becoming unconditional in other respects; and
if we are able to obtain search results early, we can give you advice on any contractual or other rights you may have so you may exercise them while you can.
The contract may not contain any rights to terminate if searches reveal that the property is subject to flooding.
The contract may not contain any rights to terminate if searches reveal that the improvements or any additions to the improvements, do not have appropriate approvals.
The Council records which exist about these searches vary depending on the local authority in which the property is situated.
We recommend that a local government building records search be requested which, in the case of some councils, will provide the following information:
– details of approvals;
– details of inspections carried out;
– certificate of classification (if relevant); and
– property notices.
The only opportunity under the contract to terminate usually exists if a property notice, such as a show cause or enforcement notice, exists when the contract was entered into.
Adverse search results which reveal that approvals have not been obtained or inspections have not been carried out do not give you the right to terminate under the contract.
We do not conduct a survey – this is your responsibility. Issues such as errors in the boundaries, area of the land or encroachments by structures onto or from the land will generally not be identified unless a survey is conducted.
It is important for you to retain copies, and originals (where appropriate) of all correspondence and documentation relating to your purchase as this may be required for taxation, duties or other evidentiary purposes at a later date. For example, if the property is held as an investment at any time, then your purchase documentation may be relevant for Capital Gains Tax purposes.
In some circumstances where goods are being supplied as part of the sale of the property, the consumer guarantees contained in the Australian Consumer Law may apply in relation to those goods. In such cases, you may have rights pursuant to implied consumer guarantees following settlement. Where these guarantees apply they cannot be contracted out of, however, our retainer does not extend to providing advice in relation to the applicability or effect of the consumer guarantees in relation to your purchase.
Eligibility for concessions/grants
If you are selling and you have previously obtained the first home owners grant or a first home, home or first home vacant land duty concession, your sale of the property may affect your continued eligibility for these schemes. We do not check whether you will have any obligation to refund a part\all of your entitlement to a concession or grant. See paragraphs 8.4 and 8.5 for further information. If you are buying we do not provide any advice about your eligibility for a government grant , nor do we make these applications on your behalf.
National Rental Affordability Scheme (NRAS) lease or arrangement
Unless we have specifically agreed in writing with you, we will not be providing advice on any NRAS lease or arrangement that may be related to your sale and it will be beyond the scope of work and advice we will be providing. NRAS arrangements are very complex in nature and may require specialist legal advice from within our firm or from another firm. It is your responsibility to ensure you are receiving NRAS advice for this transaction and if you choose not to you may suffer loss.
The fee quoted does not involve acting as your advocate in relation to a dispute with the seller or a third party whether or not arising from a default by either party of their obligations under the contract.
Other items not included
The fee quoted is not applicable to off the plan contracts, the sale or purchase of commercial property, properties exceeding $1000000 and does not include advice prior to signing the contract. Furthermore the fee quoted does not include any specific fees incurred in the conduct of the file including but not limited to additional search costs, Stamp Duty, Titles Office charges to register the transfer, mortgage, caveat or other dealing against the property, settlement and lodging agent’s fees and courier fees. Where the transaction relates to the purchase or sale of a unit in a community titles scheme our fee does not include providing any advice on the terms and conditions of by-laws including exclusive use bylaws and agreements entered into by the body corporate. Nor does it include advice on the consequences of any information contained in the disclosure statement, Community Management Statement or Building Management Statement.
In the event there are any contract variations requested where our attendance is required, an additional fee based on our hourly rate will be charged. We will not charge for variations of a typographical nature e.g. misspelling of names.