Attwood Marshall Lawyers Property Lawyer, Raphaelle Worrall, discusses the conveyancing process that sits behind buying and selling property, and how the real estate industry continues to digitally evolve.
Introduction – what is conveyancing?
Whenever you buy or sell real property (e.g. vacant land, a house or a unit), you need to register the transfer of ownership with the state government Titles Office. This is usually done by the seller and buyer signing a sale contract with an agreed sale price and a date for settlement or completion. A ‘transfer’ document is signed by the parties and after the buyer has paid the sale price to the seller, this is then registered with the Titles Office. There used to be a ‘Certificate of Title or Title Deed’ that was handed over on settlement with the signed transfer. The buyer would then physically lodge the transfer and the Title Deed with the Titles Office.
If there was a mortgage over the property with a bank, you would need to register a release of the mortgage (the bank would be paid their loan on settlement). If you borrowed money from a bank to buy the property, they would receive the transfer and Title Deed on settlement and register their mortgage with the transfer (and keep the Title Deed as security). Normally, the seller and buyer would engage a property lawyer to act for each of them in this process. The buyer’s lawyer would carry out searches to make sure the title to the property was okay and there were no adverse issues with the property, as well as making sure the settlement went smoothly including liaising with your incoming bank and calculating settlement figures, bank cheque details etc. The seller’s lawyer would make sure the transfer was done as per the contract, confirm figures and cheques as well as organising the release of the mortgage from the seller’s bank.
All parties would then physically attend a settlement venue on the settlement date (usually two sets of lawyers and two banks as a minimum) to exchange documents and bank cheques.
All this had to be done within 30 days and in Queensland, if you don’t settle on the due date, you could be sued!
That all sounds easy doesn’t it? It’s just paperwork you say! This is only half of the issues that are dealt with on every transfer of property ownership under the old paper-based system – this still happens in many transactions in Queensland!
The conveyancing process has undergone a big transformation over the past 10 years. What was once a very slow and manual, paper-based process has adapted to the digital world and the industry has (mostly) embraced new technology. New South Wales and Victoria are at the forefront of this change and all of their transactions are now electronic. Queensland continues to lag, but more and more law firms and banks are taking on the digital platform.
With the introduction of e-conveyancing, the process of buying and selling property in Australia is more transparent, stress-free, and efficient than ever before.
The conveyancing process is expected to continue to evolve and develop further over the coming years which will give property buyers and sellers even greater control over their transaction, and a better overall customer experience. With minimal signing of documents by the parties, virtual settlements on an electronic workspace, and immediate payment of cleared funds to the parties’/ bank accounts have revolutionised the conveyancing process. This ‘virtual’ process has also been invaluable during the COVID lockdowns by avoiding having to attend a physical settlement and exchange documents and bank cheques.
Traditional conveyancing vs electronic conveyancing
Traditional paper-based conveyancing
Before electronic conveyancing was launched, when completing the traditional conveyancing process, the steps for a conveyancer or property lawyer would entail:
- Collating several important documents including physical copies of the Title Plan, obtaining verification of identity, and physically exchanging Contracts.
- The buyer’s lawyer would need to wait for their client to return physical documents, which could take a substantial amount of time and in many cases caused unnecessary delays. Only once the buyer’s lawyer received the physical documents, they could then send the transfer to the Vendor’s representative.
- Once all contracts had been signed/exchanged and relevant documents provided, in the traditional conveyancing process, a settlement date would then be arranged and agreed to between the buyer and counterparty. A clerk would also need to be organized to attend settlement in person.
- Settlement happened at a physical location with representatives in attendance, and bank cheques were exchanged.
- Once settlement took place, the seller still had to wait for the bank cheque to clear , which could take up to three working days from the time the cheque was deposited.
e-Conveyancing is the new standard across Australia and is truly unrivalled when it comes to comparing efficiencies with traditional paper-based methods. e-conveyancing is the use of electronic systems to perform the conveyancing process, which is the process of transferring ownership, or legal title, of property from one individual, or entity, to another. The system we use at Attwood Marshall Lawyers is called Property Exchange Australia, now referred to as PEXA.
What PEXA does is bring together property lawyers or conveyancers, and financial lending institutions, on the one digital platform to complete the conveyancing process.
With PEXA, the physical exchange of contracts and documents is no longer necessary. PEXA allows you to digitally sign financial settlement schedules to make the process so much faster.
When it comes to settlement, the date and time is set for settlement at the very start when the matter is opened and accepted by all parties.
You do not need to attend settlement at a physical place, it all happens in the digital space, in a secure online room. That means no more rushing around on the day of settlement or arranging a courier to deliver settlement packets to settlement agents.
Funds are also transferred safely and instantly, so this gives added peace of mind to sellers and provides much more flexibility and convenience; gone are the days of the seller having to wait for the bank cheque to clear!
PEXA enables greater transparency for clients who can monitor the end-to-end conveyancing process and stay up to date every step of the way, having peace of mind and confidence that settlement will happen on time.
The benefits really are felt across the board for customers, practitioners, banks, regulators, and government agencies who all play a part in the conveyancing process and can now come together much more easily in the online world.
In a digital world where cybercrime is a cause for concern – is e-conveyancing safe?
e-conveyancing is safe and has proven to be a secure way of conducting property settlements. For buyers and sellers there is reduced risk of manual errors, fraud, and delayed settlement when compared to the traditional paper-based method.
A buyer’s interest in the title is also registered immediately on settlement, which means there is no lodgment gap risk.
For financial institutions, there is less risk as the process is quicker and safer for lodgments along with pre-lodgment verification and direct access to the Land Registry date.
For property lawyers and conveyancers, there is the reduced risk of manual errors, fraud, and delayed settlement as well.
PEXA has put a number of systems in place including alerts and processes to enhance security in their online system. They also offer protection to sellers by way of the PEXA Residential Seller Guarantee (PRSG). This protection covers the seller should, in the rare circumstances, their funds be misdirected due to a cyber-attack or fraud committed by a third party. This insurance is provided free of charge simply by transacting on the PEXA platform.
As a cyber-security conscious law firm, we take cyber protection extremely seriously and have the fraud detection and prevention systems in place to protect our systems, online transactions, and electronic communications. Our email systems and practice management software are regularly monitored and updated to ensure compliance and security is always optimized.
Who can perform electronic conveyancing services?
The conveyancing process varies from state to state and not all states have mandated the use of electronic conveyancing and not all law firms or conveyancing providers are accredited to provide e-conveyancing services.
Currently the states that have made electronic conveyancing mandatory include New South Wales, Victoria, South Australia, and Western Australia. Since COVID-19 hit our shores, electronic conveyancing has certainly become the preferred method in Queensland, however electronic settlements are currently not mandatory in Queensland. Some practitioners still opt to perform conveyancing in the slower paper-based system, much to the detriment of their clients.
Only firms certified to do so can perform e-conveyancing. At Attwood Marshall Lawyers, we embrace technology and are PEXA certified. We acknowledge the benefit to our clients to complete property transactions electronically and utilise PEXA to achieve optimal outcomes. Using e-conveyancing methods, our team are able to deliver fast and stress-free property transactions. This is our preferred method for both residential property transactions and commercial property transactions.
Attwood Marshall Lawyers – taking the stress out of buying and selling property
Whether you need pre-signing contract advice before committing to buy a property, or if you want assistance drafting terms and conditions and reviewing a contract, our team can provide expert advice for all property related matters.
We know that it can be stressful when you are buying and selling property, after all you are already busy juggling work commitments, family matters, and other priorities. We handle all aspects of your conveyance and keep you updated every step of the way so that you can have peace of mind in knowing that your transaction will proceed smoothly, and settlement will happen on time.
For assistance with a property related matter, contact our Property and Commercial Department Manager, Jess Kimpton, on direct line 07 5506 8214, email firstname.lastname@example.org or mobile 0432 857 300.
With conveniently located offices at Coolangatta, Kingscliff, Robina Town Centre, Brisbane, Sydney, and Melbourne, you can visit a lawyer at a location near you. Our Robina Town Centre office is also open Thursday night until 9pm and Saturday morning until 12noon.