From a purchaser’s point of view, settlement is the day that they get the keys to the property – however, in reality, it’s much more than this.
Settlement is the day when you, the purchaser, instruct your solicitor to hand over the balance of the purchase monies to the vendor’s solicitor, and your lawyer authorises, on your instructions, the release of the deposit to the vendor.
In return, the vendor’s solicitor hands over to your solicitor the title deeds and documents transferring title to you and arranges for the keys to be released to you. If you have arranged a loan to assist you with your purchase, then your solicitor will also hand over the title deeds to the lender’s solicitor as security for your mortgage.
Issues can arise around settlement, so take note of the following checklist to minimise the potential for trouble.
1 Confirm details
You, as the purchaser, should confirm the date, time and venue for settlement of your purchase. Normally, you would not attend settlement. On the morning of settlement, check the property to confirm that it is in the same condition that you saw it before exchange of contract. You may also take any cheques required for settlement to your solicitor, or you can arrange to deliver these the day before.
2 Settlement statement
You should receive a settlement statement from your solicitor just prior to settlement, showing the funds required for settlement, for your approval. Sometimes it is difficult for your solicitor to give this information to you early, because they are still waiting to receive information from the vendor’s solicitor, who is in turn waiting on receiving it from the seller’s lender.
3 Council rates
The settlement sheet will usually show the adjustment for local council rates. Rates are adjusted between the vendor and purchaser, as at the date of settlement; usually, the rates owing to the council are paid in full from the vendor’s money, and the purchaser’s share is refunded to the vendor by means of an addition to the purchase price. Your solicitor is likely to follow the usual process so that the local council will be notified that the purchaser is the new owner.
4 Water/sewer charges
In metropolitan Sydney (Sydney Water) and in regional areas (local council) relevant bodies make a charge for water and sewer availability and for water usage; check for your state. The water rates usually run quarterly and, on settlement, will generally be paid to the end of the current quarter by the vendor.
These charges are adjusted between vendor and purchaser as at the settlement date. You will only pay rates and charges for the time after you complete your purchase, or after the time agreed with the vendor.
5 Strata levies
This only applies where the property is a strata property, such as an apartment or townhouse. Usually, the strata levies run quarterly and, on settlement of your purchase, will be paid to the end of the current quarterly levy period by the vendor. After settlement, the Owners’ Corporation should write to you and advise you of the strata levies payable. You may instruct your solicitor before settlement to obtain an original certificate of currency of the owners’ corporation insurance, so you can confirm from your strata report that the building is insured. Sometimes, your lender may require evidence of the insurance being in place and will want their interest as mortgagee to be noted.
6 Registration fee
Where applicable, the vendor will allow you a credit for any registration fee that must be paid to the Land Titles Office for the removal of the vendor’s mortgage or other dealings from the title. Your solicitor may discuss with you any dealings that need to be removed.
7 Money required
for settlement If you have cash – usually funds in a lender account at call – for the purchase of your property, and you do not have a loan, then you will have to arrange for bank cheques (not personal cheques) for settlement. Alternatively, you may have cleared funds in an account from which your lender can, and has prior authority to, draw them from. If you have arranged a loan, your solicitor will usually arrange for your lender to deliver the cheques available from the proceeds of the loan to settlement.
You will usually need to let your solicitor have the lender cheques on the business day before the appointed settlement date; if there is a spelling mistake in the name or an error in the amount of the cheque that you prepare, settlement may be delayed and you could incur interest under the contract, and a host of additional fees and charges for late settlement.
8 Direction for payment
The vendor can determine how the balance of the purchase price must be paid on settlement, and this is normally done by directions for payment. For example, the vendor can ask you to provide cheques to pay the rates owing, to pay legal bills, to pay off a mortgage – but the money comes from the vendor’s sale proceeds, not out of your pocket.
9 Solicitor’s fees
You are likely to receive your solicitor’s tax invoice prepared in advance for the date of settlement. Your solicitor may provide a further tax invoice if there are any additional professional fees and/or disbursement incurred, as a result of additional legal services required by settlement.
The keys may be collected from the agent after settlement. We recommend that you consider changing locks after settlement.
If you have a loan, then following settlement your lender/mortgagee will register the transfer and mortgage at the Land Titles Office. The mortgagee will retain the Certificate of Title as part of the security for the loan. Alternatively, your solicitor will arrange registration of your title.
and other services It is up to you to arrange for electricity meter readings and the connection of other services by suppliers on the settlement date.
13 Final inspection
You should inspect the property just before settlement to ensure all is in order. The property should be in the same condition as at the date of settlement, as it was when you saw it prior to exchange of contracts, fair wear and tear excepted. We advise you to take photographs and date them. If there are any issues that you wish to raise, do so with sufficient time so that they may be resolved before settlement. If relevant,you should ensure that any vendor or
tenant has vacated the property.
At one settlement I was involved in many years ago, I acted for the purchaser. The vendor’s removalist slammed a door into the wall, leaving a round hole there in the shape of the door handle. I negotiated a reduction in the price to allow the purchaser funds to fix the damage. Usually you would only instruct your solicitor to negotiate for the bigger items.
14 Defects liability period
If you purchase a property off-the-plan, your contract may have a ‘defects liability period’, where the vendor is required to fix defects in the property due to faulty workmanship and materials.
If this is the case, you may have the vendor repair any relevant defects in the property at the vendor’s expense. Typically to obtain this list, in addition to making a list of defects yourself, you or your solicitor would arrange for pest and building inspection reports in relation to the property.
If so, you should instruct your solicitor to serve written notice to the vendor in writing prior to expiry of the defects liability period. The period is usually ninety (90) days or three (3) months after the date of settlement, although in some cases it may be six (6) months, depending on the contract.
15 Change of ownership
Usually in NSW, the Land and Property Information Office, also know as the Land Titles Office, will notify the council, the Valuer General (and Sydney Water) of the change of ownership, based on a form that is lodged by your solicitor or your lender’s solicitor after settlement.
It is very important that you adequately insure the property, including: contents insurance if you keep contents in the property, landlord’s insurance if you lease the property, and Home Owners’ Warranty insurance if you carry out building work at the property.
David Singh is a solicitor and director of Sydney-based law firm Conveyancing & Property Lawyers, and a lecturer at The Property School. For further information on the process of buying and selling property, email email@example.com, phone 02 9232 0050, or visit www.conveylaw.com.au. (Liability limited by a scheme approved under Professional Standards Legislation). © Conveyancing & Property Lawyers
Pty. Ltd. 2008. Reproduced with permission
No article can consider your individual circumstances or personal needs in elation to your acquisition purchase transaction, you should seek advice for your articular circumstances before entering into any transaction.
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