Covid-19 – conveyancing and property transactions
Coronavirus (Covid-19) tips for your conveyancing matter
If you are signing a new contract or already have a contract for the sale or purchase of property in Queensland it is important to think about how the Covid-19 restrictions may impact your transaction. We have put together our most frequently asked questions to assist you.
With social distancing and social isolation do I have to meet with my conveyancing solicitor in person?
There are certain in person requirements necessary for all conveyancing matters. The transfer of property is an area which can be subject to fraudulent transactions. For this reason, the Titles Office has very strict requirements when signing and witnessing transfer documents.
When you sign a transfer document as part of your conveyancing process, there are strict obligations on the person who witnesses your transfer document to check that you are who you say you are. The witness must sight (and as your lawyer, we also keep copies) of your drivers licence and current passport. If you don’t have these documents there are a number of other combinations of documents which must be provided. Unfortunately, for a transfer or any other document that gets lodged with the Titles Office, it is no longer as simple as popping along to see your local Justice of the Peace.
Other documents which must continue to be signed in person include your authority to complete your transaction electronically where all parties are registered PEXA agents (more about this below) and your transfer duty (stamp duty) declaration may be required to assess the duty payable on your purchase.
Ordinarily, these in person appointment to verify identity and sign transfer documents are likely the only time where we will need to see you in person. At this time lawyers remain an essential service pursuant to the Queensland Health directives. This means that it is okay for you to attend at our office when required. When you attend at our office for these engagements we practice the required social distancing and ensure that our office is cleaned after each engagement. We also space out any appointments we have to limit contact with others.
What is electronic conveyancing?
Electronic conveyancing are transactions which are completed through the electronic conveyancing platform PEXA (Property Exchange Australia). PEXA is Australia’s largest online property exchange network providing a platform for conveyancing lawyers, banks and other professionals to transact electronically. Documents are signed electronically. Money is debited from authorised accounts automatically. Transfers are lodged and registered with the Titles Office. The benefits to you in using this platform is that the process is streamlined, title to property transfers quickly and remaining funds from the settlement are available shortly afterwards. There is no delay in Titles Office lodgements which can take a few weeks and no waiting for cheques to clear.
How do I know if my conveyancing lawyer can do electronic conveyancing?
When you are signing a contract for the purchase or sale of property, make sure you do your homework and call your conveyancing solicitor to make sure they are PEXA certified. If the conveyancing solicitor acting for the other party is also registered then an electronic settlement can be arranged. At Life Law Solutions we have been managing electronic conveyancing for a number of years. It is our preferred approach because it streamlines the process for you.
What happens if the other party doesn’t have electronic conveyancing?
For your transaction to be completed via electronic conveyancing all parties need to be registered with PEXA, Property Exchange Australia. Unfortunately, you do not have any control over who the other party engages to do their conveyancing but hopefully, they have also chosen a PEXA conveyancer. If they do not then your conveyance will occur manually and a physical settlement will be required at the conclusion of your settlement. Your settlement will still happen as normal, there could just be some delays in the registration of transfer documents and disbursement of funds to you. We will still do our part to make sure that the process is as efficient as possible for you.
Are there any timeframes I should think about when negotiating my contract?
The most important timeframe will be the finance condition. Usually, this is either 14 or 21 days depending on the contract and your circumstances. We would recommend considering a longer period for finance and a longer period for settlement. With the current directives from Queensland Health, it may be that banks are experiencing staff shortages or a different way of working. It is best to provide for a longer timeframe at the beginning of your contract negotiations rather than be worried about having to obtain extensions if the timeframe cannot be met. Consider at least a 21 day period, but perhaps longer depending on your circumstances.
At this stage most searches are conducted online so we are not experiencing any delays there, however, there are some searches which involve an in-person inspection of records, particularly for the purchase of units or apartments with body corporates. Allowing additional time here will ensure you aren’t seeking further extensions and that the information you need to complete your purchase is available to you.
Finally, consider whether you need additional time for settlement. Most standard contracts provide for a 30-day settlement. Given the comments made above perhaps consider a 45-day settlement if that is appropriate to your circumstances.
What if I can’t complete settlement on time because of COVID-19? What if we have a forced lockdown and can’t settle?
Your ability to terminate your contract will depend on your personal circumstances and you should speak with your conveyancing lawyer about whether this is an option for you if you cannot practically complete your settlement.
It is important to know that in standard REIQ contracts “time is of the essence”. This means that if you do not or cannot comply with an obligation you may be in breach of the contract and the other party may be able to take steps against your interests.
The REIQ contract provides for a “delay event” which can suspend a party’s obligation to comply with certain timeframes. A “delay event” is defined as follows:
(a) A tsunami, flood, cyclone, earthquake, bushfire or other act of nature;
(b) Riot, civil commotion, war, invasion of a terrorist act;
(c) An imminent threat of an event in paragraphs (a) and (b); or
(d) Compliance with any lawful direction or order by a Government Agency.
A delay event does not include a pandemic however in the event that a Government Agency made a direction regarding a shutdown or compulsory close of business then there may be some scope to delay settlement. You should always get legal advice when you are considering delaying, suspending or terminating your contract. Alternately, our office can suggest the inclusion of a Special Condition into the contract to allow for the particular circumstances of this ongoing pandemic.
I’ve lost my job – can I terminate my contract? Can I terminate my contract because of Covid-19?
The short answer here is – it depends. If you have lost your job and that impacts your ability to obtain finance then you may have an avenue to terminate your contract on the basis that you cannot get finance. This only applies if your contract is subject to finance. If you have already said that you have finance approval then you need to get some specific advice about this point from your conveyancing lawyer.
Many standard contracts do not include reference to a “pandemic” as a trigger for the termination of your contract. You should review your contract carefully and talk to your conveyancing lawyer. If you have not signed your contract yet, you should ask your conveyancing lawyer to prepare a special condition for you which will give you more options if this impacts you.
Life Law Solutions is an experienced PEXA electronic conveyancing law firm. For enquiries about this service please contact us on 3343 9522 or by email to firstname.lastname@example.org. Our property team will be happy to assist you with your enquiries.