When selling your property there are several people involved in the process but three of those key players are your conveyancer, yourself, and your mortgagee / bank if applicable. 

We all have a different role, but we all are working towards and want the same outcome. There is a common misconception that your Conveyancer will take the reins and do everything to complete Settlement on your behalf. Whilst it is our job to guide and assist you, there are certain limitations of what we can do on your behalf. 

Sale of Property When There is a Mortgage 

You have secured a contract of sale for your property and engaged a conveyancer, happy days.  

Who else needs to know? Your Mortgagee / Bank / Lender.

Who needs to tell them? You. 

A Mortgage is a financial agreement (Loan) between yourself and your Lender. If your property has a Loan associated with it, you cannot sell it unless the Loan has been paid out and the Mortgage is released at settlement. This involves you completing the necessary paperwork with your Lender to request for the Loan to be released. Part of that process includes you listing us as the Conveyancer acting on your behalf for the transaction, and thus authorising us to speak to you Lender about it. 

Your Lender will not get in touch with us or speak to us about your matter until they have received the completed Release of Mortgage request from you, and you have nominated us as your Conveyancer.  

The lead time for your Lender to be ready to release the Loan is hard to predict as there are many contributing factors. An example being that your Lender may be waiting on valuations to be conducted of other securities you own which could add substantial delays to the normal processing time required to Release the Mortgage. Therefore, we encourage our clients to attend to the process of arranging the Release of Mortgage as soon as possible. Whilst we cannot complete this request for you, we make sure we advise you of this requirement in our First Letter Pack we send out soon after receiving the signed contract. We are also always ready to answer any questions you may have, regarding the Release of Mortgage

Sale of a Property When the Loan has Been Paid but the Mortgage has not been Released 

You have finally paid off your loan and your debt with the bank is over – Congratulations! 

Why are we still asking you to arrange for the Mortgage to be Released? Because the Release of Mortgage has not actually been registered with Land Titles and the Mortgage is still on the Title. 

When you purchase a property and borrow money to do so, your Lender will register a Mortgage over the Title after Settlement to confirm the Loan agreement. 

Once you have paid off the loan amount, the Loan can be released from the Title, but to do so a Release of Mortgage needs to be obtained from your Lender and registered at Land Titles. Your Mortgagee may arrange to do this for you, or you may be provided with the Release of Mortgage for you to arrange for it to be registered.
It may be that when it comes time to sell the property, you have not yet arranged for the Release of Mortgage to be registered. 

If this is the case, the Release of Mortgage needs to be registered at the Land Titles before Settlement. Alternatively, you can provide the physical Release of Mortgage to us, and we can provide at settlement to the Buyer’s Solicitor. 

In Conclusion 

There is a lot involved when you are selling your property but at Enterprise Legal, our main aim is to try and make the process as stress-free as possible. 

We have experience in what is involved in the process of selling your property, and what can go wrong so we know what to avoid.  

Our goal in advising our clients of the importance of this process is to avoid any last-minute delays that may attribute stress, costs or ultimately, being in breach of your sale contract due to your releasing Mortgagee not being ready on Settlement Date.

If you have any questions regarding your upcoming sale or any of the information in this article, please get in contact with EL's conveyancing team:

☎️ | (07) 4646 2621
✉️ | 
🌐 | Property Conveyancing Services

Thinking of buying or selling a property at auction? Here are some crucial tips:

What’s the Process? 

The contract for a property sold at an auction is required to be signed ‘on the spot’. This is different from other transactions, whereby the parties have time to have their respective legal representatives review, advise and amend the draft contract prior to you signing it. 

Because of this, we highly recommend that you engage a conveyancer to review the contract prior to going to Auction.  This can be done by contacting the sale agent and asking them to provide you with a draft contract for us to review on your behalf. 

Whilst an Auction contract is typically not subject to any conditions, it is still important that we check over the details of the property to ensure that the correct information has been inserted.  It is significantly more difficult to change certain aspects of the contract once it has been signed, thus part of our service includes a free review of the draft contract. 

The Fall of the Gavel 

It’s important to do any research regarding the property and confirm your financial ‘buying power’ prior to attending the auction and making a bid. This includes meeting with your broker or lender to ensure you have finance preapproval to purchase the property. You may also want to consider whether you can arrange a building inspection or obtain information from the selling agent prior to the auction to investigate the property. 

As previously mentioned, an auction contract usually comes with no conditions (eg. they are not usually subject to you obtaining finance or being happy with the results of a building and pest inspection), so it is important to understand that as a buyer at an auction, you won’t have the standard termination options available and will be in hot water if you can’t complete the purchase for any reason. 

If you cannot attend auction, you may elect to authorise a buyer’s agent to sign the contract on your behalf.

The Auctioneer’s Authority

We have seen instances recently where the contract has been signed by the Auctioneer as authorised representative of the buyer or seller. There are two main scenarios where this occurs:

1. some Agents will specify in their Auction Terms and Conditions that by agreeing and signing them, you grant the Auctioneer an irrevocable authority to sign all documents and papers necessary to form the agreement for sale of the property with the Buyer. It is therefore extremely important that you provide clear instructions to your agent and auctioneer regarding the reserve price etc; and

2. an Auctioneer also has authority pursuant to common law to sign a contract on behalf of the buyer or seller if the hammer has fallen and a party refuse to sign the Contract. Changing your mind isn’t that easy! 

Final Auction Tips

Buyers - it is important that you don’t get carried away at auction and end up being required to purchase something that you may have ‘buyer’s regret’ in relation to. Make sure you do your due diligence prior to the Auction and that you don’t bid over your budget.

Sellers – make sure you are 100% comfortable that the agent and auctioneer have clear instructions regarding the price that you are happy to sell for and again, don’t get caught up compromising on the day. 

In either case, it’s best to seek advice from your lawyer before buying or selling at auction. Contact Enterprise Legal's experienced conveyancing team now for more expert advice:

☎️ | (07) 4646 2621
✉️ | 
🌐 | Property Conveyancing Services

One of the first questions we ask our clients that are purchasing a property is: “Will you be moving into the property after settlement?”

The answer is normally either “yes, I can’t wait to move in” or “no, I am not moving in as this is an investment property”.

But sometimes there is a third scenario- where our client has found their dream house that they want to move into as soon as possible but there is a tenant in the property.

Whilst this situation is less than ideal, there are still a couple of options available for you to consider. Part of our service includes reviewing the draft contract prior to signing. This is particularly important when a tenant is involved as we can check that the critical dates ‘line up’ in relation to both applicable notice periods, and the transfer (stamp) concession eligibility requirements – read on to find out more.

Getting the Tenant to Leave

It’s important to know what type of Tenancy Agreement is in place, as this determines the notice period that must be given to the tenant to require them to vacate.

For a periodic agreement the tenant has four weeks to vacate when a sale contract is in place for the property.

However, if there is a fixed term agreement in place the tenant has the later of 2 months from the day of notice, or the date on which the fixed term agreement ends to vacate the property.

Notice is not normally given until the contract goes unconditional (as understandably, the Seller won’t want to kick their tenant out unless they know that the property is definitely being sold), so it is important to allow sufficient time between the notice being given and settlement.

Of course, the tenant can agree to leave early at their own discretion but with no guarantee of this, it’s important to understand the relevant notice periods at the time of entering into a contract.

Transfer (Stamp) Duty Concession Requirements

Transfer Duty (often referred to as ‘stamp duty’) is a government tax charged on most property transactions, with the amount payable dependant on the purchase price and whether or not the purchaser can claim a concession or exemption.

As an owner/occupier intending to move into the property, you may be entitled to claim either the First Home Concession if you have never owned a property before or the Home Concession if you have previously owned property before. These concessions mean that you save a significant amount on the ‘full rate’ of transfer duty, which is otherwise payable (including if you are purchasing the property as an investment).

A key eligibility requirement to receive either concession, is that any tenants occupying the property under an existing tenancy agreement must move out when their lease expires or within 6 months of settlement at the latest, whichever is the earlier. This also applies to previous owners who may be living in the property for a period after settlement.

If you claim a concession and the tenancy doesn’t end within the required timeframe you will then need to notify the Commissioner of State Revenue by completing a Notice of Reassessment and pay the higher stamp duty amount. Therefore, it is very important to understand the eligibility requirements and ensure that you can comply with them.

Taking Possession

Once the tenant has vacated you will likely want to inspect the property to ensure no damage has been caused and that it has been appropriately cleaned and the tenant has otherwise complied with their end-of-lease obligations.

Any issues that come up at the inspection should be discussed with the selling agent and managing agent (if applicable) so that it can be dealt with by them and the tenant’s bond utilised if possible.

In the event that this is not possible, we can provide advice on any other options you may have before settlement.

Enterprise Legal’s Top Tips

1. Talk to the selling agent when putting in your offer to find out about the terms of the tenancy and if the tenant has any intentions of vacating earlier than required;
2. Have the contract reviewed by us prior to signing and discuss any concerns you have about the tenancy with us at the same time; and
3. Understand that if you claim a stamp duty concession and subsequently do not meet all of the requirements, you have an obligation to notify the Queensland Revenue Office and you can be subject to penalties for giving false and misleading declaration if you do not give that notice.

Are you in the process of purchasing a property? Contact Enterprise Legal's experienced conveyancing team now for more expert advice:

☎️ | (07) 4646 2621
✉️ | 
🌐 | Property Conveyancing Services