Property Law

A purchaser who signs a Contract for the purchase of real estate can terminate the Contract within 3 clear business days from the day the purchaser signed the Contract.

The sale cannot relate to a commercial or industrial purpose.

There are exceptions to this right to “cool off” being:

1. The sale is at or within 3 clear business days before or after a publicly advertised auction
2. The purchaser and vendor have previously entered into a Contract for the sale property
3. The purchaser is an estate agent or a company

The current government incentives available for First Home Buyers in Victoria are:

1. For established homes for the purchase price of up to $600,000 there is a full exemption of Stamp Duty – at the top end of this capped exemption that is a saving of over $31,000! A partial exemption still applies after the capped amount of $600,000 on a sliding scale up to $750,000
2. For brand new homes never lived in before, in addition to the full exemption up to $600k, you are also entitled to receive the First Home Owners grant of $10,000
3. For land only, both exemptions as noted will apply and usually your lender will assist and apply for the first home grant on your behalf to form part of your land and construction loan

Yes, you should go to a bank or broker to seek pre-approval of a loan before you start looking for a property to purchase.

This is essential before attending any Auction to know what your spending limit is and for assurance that you can get a loan, as when you buy at auction you cannot make a contract subject to finance and if you are the successful bidder on the day, you will be contracted to settle with no out clause.  Therefore. if you cannot get finance approval and cannot settle on the due date you risk losing your deposit.

Private Sales are a safer option to purchase because you can make the contract of sale subject to finance and then seek loan approval, however, to avoid disappointment of a loan decline and missing out on the home you had you heart set on, you should know your spending limits before making an offer.

Seeking preapproval for a loan before you start looking gives you buying confidence at a limit that you know in advance and will keep you searching for properties that you can actually afford.

Buying “off-the-plan” means buying land or an apartment that does not yet exist other than as a drawing on a proposed plan.

Imagine a large farming area surrounded by a single fence.  The owner would like to subdivide the land into smaller lots and sell them off.  In order do so, the owner can “sell” the parcel of land first and then subdivide them into individual lots later by entering into what is referred to as an “off the plan contract”.   The off the plan contract is similar to a standard contract of sale as it requires a purchaser to sign the contract of sale, pay a deposit (usually 10% of the purchase price).

The major difference between a standard and an off the plan contract is that the off the plan contract will have a sunset clause or registration period.  This is a time frame (usually 18 to 36 months) within which the owner must subdivide the land.  If the land cannot be sub-divided within the time specified in the contracts, the contracts can be cancelled, and the purchasers will be entitled to full refund of deposit monies paid.

The benefit of entering into an off the plan contract is that it allows a purchaser to secure a lot or apartment, lock in the price, pay the deposit and during construction or subdivision of lots, allows the purchaser to save funds to complete the settlement and transfer the title of the property into their name.

We recommend that purchasers obtain legal advice prior to entering into an off-the-plan contract.

When a purchaser enters into a Contract of Sale to purchase property and/or land, they rarely imagine that they will not be able or willing to complete the contract of sale and take possession of their new property.  However, it is possible to nominate alternative purchasers. This is called a nominee sale and provides the option for someone who has purchased a property but cannot settle on it, an opportunity to find another buyer to step in and have the contract transferred to their name and finalise the settlement becoming the ultimate owner of the property at settlement.

The nomination process is completed by signing a Deed of Nomination or Sale of Real Estate Nomination form.  We recommend that purchasers obtain legal advice about whether nominating an alternative purchaser under a contract of sale is the right move for them, and how the nomination can best be documented to protect their interests.

Yes.

We highly recommend Leases being drafted and reviewed by a legal practitioner to ensure protection and to ensure you understand your obligations and requirements under the Lease.

While the Law Institute of Victoria have standard template Leases, we recommend having a legal practitioner draft any proposed Lease arrangement, especially in circumstances where Special Conditions may be required.

The landlords’ ability to recover legal costs for preparing, negotiating and finalising a Commercial Lease will depend on the terms of the Agreement.

The landlords’ legal costs for preparing, negotiating and finalising a retail lease are not recoverable from the tenant under any circumstances, even if the tenant decides at the last minute not to go ahead with the Lease. A landlord is also prevented from recovering from the tenant expenses such as land tax under a retail lease. The landlord can, however, recover from the tenant costs that are reasonably incurred in connection with a proposed assignment, investigating a proposed assignee of the lease and obtaining any necessary consents to the assignment.