Links & Resources
What is conveyancing? Conveyancing is the process of transferring ownership of real estate from one party to another. We review the contract, draw your attention to important conditions and critical dates, work with your bank to prepare for settlement, conduct searches and report results back to you, assess stamp duty and arrange payment and finally attend settlement (where each party hands over the necessary documents and cheques to finalise the transaction).
Should we use a solicitor or a conveyancer? In Qld all ‘conveyancing companies’ are part of a law firm. The Qld law requires conveyancing work to be performed or supervised by a solicitor. Therefore, unlike in other states, there is no difference.
How does the cooling off period work? If you change your mind, under Qld law most buyers have five days from when the contract is formed to withdraw from the contract. If you choose to cancel the contract during the cooling off period you will have to pay 0.25% of the purchase price.
What are searches? Solicitors carry out searches of various government departments in order to find out if there is anything about the property or the seller that might be of concern to the buyer. For example, a search of Queensland Transport can reveal if the Department has any plans (such as road widening or main roads) that will impact on the property. We charge clients the amount we pay for searches and all outlays are itemised on our final invoice.
What does a fixed fee cover? You should check with each firm. Our fixed fee covers all professional fees regardless of how many times you call or come into our office. The fee will only change if the conveyance turns into a contested or litigated matter – and even then, only after you agree to a change in the terms of our appointment.
Wills and Joint Tenancies
Holding property as joint tenants means that each person has entire ownership of the whole of the property together with the other tenants. Importantly, none of the tenants hold ownership exclusively. This means they cannot sell off or give away their share – not even in a will.
Joint tenancy can be contrast with ‘tenants in common’. When property is held as tenants in common, each owner has a specified share of the property (usually expressed as a fraction or percentage). Because each party has a specified share of the property, they are free to dispose of their share, either by sale, gift or in a will.
Joint tenancy is a popular substitute for leaving property in a will. It is a particularly common form of holding real estate between spouses or family members. Often the matrimonial home is held by the husband and wife as joint tenants. Other examples of joint tenancies are partnership assets and joint bank accounts.
The key feature of a joint tenancy is the rule of survivorship. The rule provides that title to the property passes directly to any survivor of the two (or more) tenants. This happens regardless of any provision within a will.
One advantage of holding property as a joint tenant (and therefore not having your property be part of your estate) is that the property cannot be the subject of a challenge to a will by a family member. Under Queensland law, certain family members are able to apply to court to seek money or property from an estate if they think that the will has not made adequate provisions for them. If the property was owned by the deceased with another as tenants in common, then the deceased’s share of the asset would be up for grabs from the disgruntled family member. However, if it is co-owned as joint tenants, then it is protected and simply passes to the surviving owner (or owners).
Intestacy is when someone dies without a valid will, or when the will only covers part of the deceased’s estate. If a co-owner of property as a joint tenant dies without a will, then the procedure for the survivor to be recorded as the sole owner is straight forward. The property is not part of the assets that need to be distributed under the rules relating to intestacy.
You can transfer real property between joint tenancy and tenants in common and vice versa without paying stamp duty so long as the shares being held are equal. Also, spouses can transfer from single ownership to joint tenancy or tenants in common in equal shares by way of gift without stamp duty for a principal place of residence.
If you change the way you hold any significant assets you should review your will. You should also talk to your accountant about the tax implications of any change of ownership.