Conveyancing terminology explained

If you’re buying or selling a property in Geelong, you may have heard a lot of different terms being thrown around. But don’t be overwhelmed if you haven’t heard the majority of these before. With the help of experienced Geelong conveyancers, you are still more than capable of completing the purchase or sale of a home.

Our friendly Geelong conveyancers at the Hrkac Group have compiled an easy reference guide of some of the most common conveyancing terms to help you through the process. Refer to this glossary of conveyancing definitions as you come across them on your property selling or purchasing journey.

 

Agent
The real estate agent who the seller, or vendor, has engaged to manage the sale of the property.


Auction
When the sale of a property is conducted in public and is sold to the highest bidder.


Caveat
A caveat is a legal claim lodged against a property by a person with an interest in the property. A caveat will prevent a property from being sold or transferred unless it is removed.


Common property
Areas of a property used by and belonging jointly to all owners of a property. This applies to such properties as apartment blocks or multi-dwelling complexes.


Contract of Sale
A written agreement between the buyer and seller of a property that outlines the terms and conditions of the sale, inclusions, price, descriptions of the property, and completion date.


Cooling off period
A period of three business days which commences from the date when an exchange of contracts has taken place between the purchaser and the buyer of the property. During this time, the purchaser can choose to walk away from the contract, though may be required to forfeit 0.2% of the purchase price. There are some circumstances in which a purchaser can’t cool off, such as buying at an auction.


Covenant
An agreement creating an obligation on the titleholder of a property to do or refrain from doing something. For example, a restrictive covenant could state that no more than one dwelling may be built on the land.


Deposit
A percentage of the purchase price for the property being sold. This amount of money is paid by the purchaser as an assurance that they are going ahead with the purchase of the property in question. This amount is usually held by the estate agent until all paperwork for the purchase of the property has been signed.


Easement
A right to use and access part of the land on the property. This right can belong to someone who is not the landowner. An easement is typically used when access is required for wires and pipes for maintenance of sewage, drainage, and electricity. An easement can also refer to shared driveways and paths on a property.


Encumbrance
Refers to the fact that there’s a mortgage or caveat registered for the property title.


Equity
Having ‘equity in your own house’ refers to the difference between the market value of a property and what is still owing on a mortgage. This will increase as the loan is repaid or as the property’s market value increases.


Finance
Pre-approval is the stage where your bank/lender has confirmed an amount you are able to borrow, based upon your financial position. Finance is not guaranteed at this point and is conditional.

Unconditional Approval is the stage where your bank has carried out all the necessary enquiries, including a valuation on the property it is taking as security and has agreed to formally lend you the funds required for your purchase. This stage is “unconditional” because it doesn’t have any further conditions attached to it, except for the execution of documentation.


Fixtures
Items that are attached to the property and which ownership moves from the seller to the buyer with the property.


Joint ownership
Title to property is held in one of two ways. Joint tenants means that each person owns the property jointly and equally. In the event of one joint tenant surviving the other, the property automatically passes to the remaining joint tenant or tenants. Tenants in common means that each person owns a share (can be 50/50, 70/30, 99/1 or any share you wish) in the property. On the death of one party that share passes to whoever inherits their estate, so having a current Will is essential.


Mortgage
An amount of money loaned to a person or entity that is used to define the purchase of a property. This will be registered on the title to the property and can be used to claim a legal interest in the property purchased.


Mortgagor
The person or entity who receives the mortgage.


Mortgagee
The person or entity who provides the mortgage.


Mortgage guarantee insurance
Paid by the borrower to protect the lender against failure by the borrower to keep up mortgage repayments or to pay back the loan in full when it is due. Such insurance normally applies where the borrower’s loan exceeds 80% of the value of the property. This type of insurance is taken out by the lender, with the cost passed on to the borrower. The borrower remains liable for any shortfall; for example, if the property is sold and the proceeds do not cover what is owed to the lender.


Off the Plan
An ‘Off the Plan’ property is a unit or house that has not yet been built, and you have agreed to buy based on the Developers’ plans.


Owners corporation
Formerly known as a body corporate. An owners corporation has the collective ownership of the common area in a subdivision of land or buildings. It is responsible for the administration, upkeep, and insurance of the common area shared by all the owners (the common property).


Section 32/S32
Information that the seller must provide to the buyer advising of restrictions such as covenants and easements, outgoings such as rates, and any other notices such as compulsory acquisition. Also known as a vendor’s statement.


Settlement
When ownership of a property passes from the seller to the buyer and the balance of the sale price is paid to the seller.


Stamp duty
A state government tax, based on the sale price of a property, paid by the buyer when property ownership is transferred. Also known as duty.


Statement of adjustments
A document that includes all the adjustments of certain costs such as taxes, rates, water, rent, and how they are divided up between the purchaser and the vendor. Until settlement, the vendor must pay all expenses pertaining to the property. These expenses transfer over to the new owner of the property upon completion of the settlement.


Subdivision
The process of dividing one piece of land into different lots. This is a common practice among buyers who wish to buy land with the intention of building multiple houses or units on it.


Subject to finance
A contract clause that states the purchaser of the property in question has to obtain finance for a set amount by a certain date. Failure to do so releases them from the buyer’s contract without a financial penalty.


Title
A legal document identifying who has a right to the ownership of a property.


Transfer of Land
A document recording the change of ownership of a property from the seller to the buyer.


Vendor/Seller
An individual or entity selling land.


Zoning
The permissible uses of an area of land as stipulated by the council.

 

If you’re interested in knowing more about what is required when buying or selling a home, speak to the expert Geelong conveyancers at The Hrkac Group. A smooth property settlement depends on all legal and financial obligations being met, and that can require liaison between a number of different parties including solicitors, lenders, and real estate agents – even representatives of local councils.

Our Geelong conveyancers’ expertise and experience in facilitating a stress-free settlement can help ensure a positive outcome for you. So, whether it’s a change of name or transfer of title, an application for subdivision, or any matter regarding commercial or residential conveyancing, you can rest easy knowing it can be handled under one roof at the Hrkac Group. If you’re looking for Geelong conveyancers, look no further. To make an appointment to meet one of our friendly Geelong Conveyancers today, feel free to contact us via email or phone (03) 5224 2366.

Business is running smoothly, and you and your business partner have an amazing working relationship. You’re dealing with day-to-day tasks, forecasting results, and anticipating challenges to your business. It is probably the last thing on your mind to plan for what you would do if something were to suddenly happen to your business partner.

If you don’t have legal documentation in place to determine what would happen in the tragic event that your business partner was to die or become permanently incapacitated, there could be significant negative impacts to your business and to your personal relationship with your business partner and/or their family.

With enough foresight and the necessary legal agreements in place, some anguish and disruptions to your business can be circumvented.

 

What are the possible damaging outcomes for my business?

Unfortunately, without legally documented agreements in place, the death or incapacitation of a business partner can have disastrous consequences for your business.

  • You may not have insurance in place and be unable to pay their share of the business to their estate.
  • You may be unable to find a replacement for their role and responsibilities, resulting in the closure of your business.
  • Insurance may not be adequate to cover your partner’s share of the value of the business, their share of any debt that the business is carrying, capital gains tax, GST as well as many other unforeseen costs.
  • Life insurance that you intended to use to pay for their share of the business, may instead be paid to other beneficiaries.
  • Their family members may have different expectations to you about their ongoing role in the business.

 

How can I protect my business and all parties involved?

In the unimaginable circumstance that your business partner dies or is permanently incapacitated, best practice is to have in place legal partnership agreements and formal succession planning drawn up by a legal professional.

You should address the following throughout the process:

  • Have a legal partnership agreement drawn up which formalises the rights and obligations of two or more people who are going into business together as partners.
  • Methodical succession planning and clear processes to follow are well-documented and drawn up by a legal professional.
  • All parties involved will require an up-to-date Will and estate plan that outlines plans for their business interests.
  • Ensure sufficient insurance is taken out and legal documentation is drawn up outlining how that insurance is to be managed.
  • Arrangements are made to pay out an estate or family members expediently.
  • The process for valuing the business is clearly outlined and documented.
  • Taxation, such as capital gains tax & GST is taken into consideration.

 

How we can help.

It is important to have a legal professional draw up these items for you:

  • A legal business partnership agreement
  • A formal succession plan for your business
  • A legal Will or estate plan

Our legal professionals can help you draw up a business partnership agreement to ensure that each partner knows their rights and responsibilities. It will also define policies for what should happen in this worst-case scenario.

Our succession planning experts can help you ensure that you retain financial security and minimise tax liabilities during the transfer of ownership or management.

We can guide you through the Will & estate planning process, answering any questions you may have along the way, giving you the confidence that you will be leaving your business and family secure.

We have vast experience in business valuations that take into consideration all aspects of your operations.

If something has already happened to your business partner without legal agreements in place, we can also offer legal advice.

With some forward planning and formal legal agreements in place, some distress and interruptions to your business can be avoided in the heart-breaking event that something were to happen to your business partner.

Take control of your future today by meeting with the Geelong-based Legal team at The Hrkac Group. Call us today on 03 5224 2366.

In today’s world, planning for an unknown future is something of increasing importance. The reality of your future may involve an accident or illness that takes away your capacity to make your own financial, medical, and residential decisions. To help safeguard your future, appointing a trusted person to help you make those decisions, as you would have, will give you the confidence to continue living life to the fullest.

 

What is a Power of Attorney?

When you are unable to make important decisions for yourself, and you have appointed a trusted friend or relative as your Attorney, they are legally allowed to make those decisions for you. They are required to sign a legal document that gives them certain decisional powers over your financial, personal, and medical affairs so that your money, property, and well-being are cared for in a way you approve of.

There are different types of power of attorney for different decisions.

  • Enduring Power of Attorney: At a time of your choosing or at the point where you no longer have the capacity to make decisions about your finances, your property, or paying your bills, an attorney appointed by you as an Enduring Power of Attorney will have the legal authority to act on your behalf to ensure your best interests are taken care of.
  • Enduring Power of Attorney (Medical): Wherever possible, your Attorney appointed as Medical Power of Attorney will be able to accept or refuse medical treatments, surgeries, and medication on your behalf. There are restrictions to their range of power.
  • General non-enduring power of attorney: appointed to make financial decisions for a specific purpose or set period of time (generally used in companies and not initiated by illness).

 

Who can be an Attorney?

You are free to make the decision of who your Attorney(s) are, you are even allowed to appoint multiple attorneys with different designations on how decisions are made.

Generally, a spouse, partner, relative, or close friend is chosen as someone’s Attorney, however, it’s important to consider that this person must: act in your best interest, make the same decisions you would, keep accurate records of their decisions on your behalf, avoid conflicts of interest and keep your finances and property separate to their own.

You can limit their range of power by choosing the tasks they are responsible for and which they aren’t; you can also appoint more than one so that they must make joint decisions or majority decisions. It’s also possible to appoint a backup in case your primary appointed Attorney is unavailable.


 

What can they do?

An Attorney’s duties begin when they are designated to. You can have them commence immediately

after the Power of Attorney document is signed, at a certain time or on the occurrence of a certain event.

If you choose for the Attorney’s powers to start on a specific date, or event, they cannot make decisions before that occurs.

An Attorney may also be required to provide evidence that you are no longer able to make decisions on your own behalf – this can be in the form of a medical certificate or letter from a medical professional.

 

An Attorney appointed as Enduring Power of Attorney can:

  • Make financial or legal decisions on your behalf
  • Manage your banking
  • Maintain your property
  • Pay your bills
  • Choose where you live
  • Decide how your healthcare is maintained

 

They can’t:

  • View or edit your will
  • Make medical decisions
  • Exercise personal powers, such as vote on your behalf

 

An Attorney appointed as Medical Power of Attorney can:

  • Agree or refuse medication or surgery
  • Agree or refuse your involvement in medical research
  • Refuse treatment if it will cause you distress or if you would warrant it unnecessary
  • Take precedence over an attorney with healthcare powers

 

They can’t:

  • Agree to treatment that will compromise your fertility
  • Terminate your pregnancy
  • Agree to the removal of tissue for a transplant
  • Refuse treatment to alleviate pain and suffering in palliative care

 

How to choose/appoint an Attorney?

Appointing an Attorney can be completed in four steps:

  1. Choose your Attorney or Attorneys.
  2. Advise them about your decision, and confirm they are happy to act as your Attorney.
  3. Instruct HG Legal to draft all required Powers of Attorney documents.
  4. Execute the Powers of Attorney in front of a fully qualified witness.

 

When does an Attorney’s authority end?

There are a few reasons why an Attorney is no longer required to make decisions on your behalf:

  • You recover or return to decision-making capacity.
  • You revoke their rights as your Attorney. You can do this by either filing a revocation or by appointing a new Attorney, which will overwrite the previous.
  • They can resign as your Attorney.
  • If you pass away, your Attorney is no longer able to make decisions on your behalf.

If you need assistance appointing an Attorney or have any questions on how to go about appointing one, Stuart and our Legal team are here to help you at any stage. Take control of your future and live life to the fullest. Contact us on 03 5224 2245 or legal@hrkacgroup.com.au.

What is a Will?

A Will is a legal document that says how your estate will be distributed after you die. The property that you leave when you die is known as your estate. Your Will can also include your wishes about things such as who you want to care for your children after you die and your burial wishes.

 

Why make a Will?

Everyone should have a Will. A Will is a legal document where you say what you want to happen to your estate when you die. If you don’t have a Will, your estate may not go to the people you want it to.

 

What if I die without a current Will?

If you die without a current Will the law will decide what happens to your estate. This may mean that your estate is not distributed in the way that you wish. Your estate may be distributed in accordance with an old Will. Otherwise, the court will appoint an administrator to distribute your estate following legal rules known as the rules of intestacy.

That means, your assets may go to:

• your spouse or domestic partner, children or parents, or more distant relatives, or

• if you have no relatives at all, your property will go to the State.

 

Choosing an executor

An executor is a person or trustee company that will manage your estate after you die. Your Will names the executor and gives them the power to deal with your estate in accordance with the terms of your Will. Your executor must follow the directions in your Will. They can’t make guesses and change your directions even if they think you might have changed your mind. If they fail to act on the Will, the court or Registrar of Probates can ask them to explain. The court or Registrar of Probates can take this action themselves or when someone complains.

 

Who should I choose as my executor?

Your executor could be a family member, friend, lawyer or other professional, such as an accountant or trustee company. When choosing an executor, you should consider their circumstances and skill set to decide if they are suitable.

 

What should I consider when choosing an executor?

• You need to make sure the person you choose to be your executor has the skills and time to do it. You should ask them if they are happy to take on the responsibility.

• Your executor needs to be someone you can trust to carry out your wishes. It is their job to take control of your estate and make sure the right people get what they should.

• The executor also needs to be able to understand basic accounting and deal comfortably with a range of people, including banks and lawyers, and your family. Sometimes they may need to deal with disputes between beneficiaries or claims being made against your estate.

• Your executor needs to carry out their responsibilities after you die, so an executor who is much older than you, is unwell, or likely to move overseas is not a good choice, especially if you have children who may not benefit for some years.

• If you appoint a professional as executor, they will need to be paid from your estate. You should refer to payment for their services in your Will.

• Sometimes an executor might need professional assistance to undertake their role. Any costs associated with such professional help will be paid out of the estate before the assets are distributed.

 

Why it’s a good idea to appoint more than one executor

Even though you trust your executor, it can be good to have two people who can keep track of what is going on and make sure the right thing is done. You are allowed up to four executors, but this is not usually recommended.

If you choose to appoint more than one executor, make sure they can work together. If you appoint one executor, it is a good idea to appoint an alternate person in case your first person can’t (or won’t) take on the role after you die.

 

 Your beneficiaries

Who is legally entitled to benefit from my estate?

You are expected to look after your dependents in your Will if they need your help and you have the resources. Dependants could include people like your partner or children, even if they are adults. If you don’t include these people, they may be able to challenge or contest your Will. If their claim on your estate succeeds, the court will make an order to give some of your estate to that person. It doesn’t matter what wording you use in your Will, you can’t get around this if the court decides it is appropriate. Some of the costs of such claims may be paid out of your estate.

 

Stuart and the expert Legal team at The Hrkac Group can help you through the Will making process, assisting you with any questions you may have along the way and give you peace of mind that your wishes will be complied with.

Make an appointment today via email or phone 03 5224 2366