Buying property is a relatively complex matter that requires caution. Because the purchase process involves many procedures, even a slight oversight can easily lead to losses. For example, in our earlier article “The Pros and Cons of Buying Off-the-Plan Property in Australia,” we mentioned that purchase contracts typically include a 5% area-variance clause for off-the-plan properties, meaning the final area of the property is permitted to differ by up to 5% from the area shown in the pre-contract provided to the buyer. There was once a case where someone bought an off-the-plan property and, after completion, discovered that the actual area of one of the rooms was reduced by about 4.5% compared with the area agreed in the purchase contract. It was precisely this discrepancy that affected the natural light and the usable space of the room. Traps and problems encountered during the purchase process occur time and again — some people silently endure them, while others become entangled in disputes, with many suffering property disagreements that drain their energy and finances. Therefore, when buying property in Australia, it is very important to have someone knowledgeable about property matters oversee the process. But who should that person be? Should you hire a property lawyer or a conveyancer? The following discussion will address this topic step by step.

Property Lawyer or Conveyancer?

Some people do not have a very clear understanding of the distinction between a property lawyer (solicitor) and a property conveyancer when buying property in Australia. Although both are qualified to handle property conveyancing, there are in fact some differences between them.

In terms of qualifications, a property lawyer has completed a systematic legal education, holding at least a bachelor’s degree in law or a master’s or higher degree, and must pass professional practical legal training before being formally admitted to practice. In terms of time, a property lawyer generally has to complete many years of legal study before being able to practise formally.

By comparison, a property conveyancer is not required to have a legal background. They only need to complete the property conveyancing course in the state where they reside, which takes about 2 years, after which they can register as a conveyancer.

In addition, property lawyers face no geographical restrictions when handling Australian property law matters and can represent clients in the full legal process for property-related matters anywhere in Australia. Their procedures are more rigorous — from contract review and title searches through to completing all legal procedures for property conveyancing.

Conveyancers, on the other hand, are subject to regional restrictions, meaning conveyancers cannot handle property conveyancing across states. For example, if you live in NSW but want to buy another property in QLD, a NSW conveyancer cannot handle the QLD property conveyancing across state lines for you.

In addition, there is an issue that many people easily overlook — matters that arise from the purchase contract. When buying property, many related issues often arise, such as pre-nuptial property agreements. As lawyers able to work across multiple areas of practice, they can provide clients with more comprehensive advice — for example, how to protect your assets while purchasing property.

When handling property matters, property lawyers are highly experienced and more rigorous in the procedures for purchase and conveyancing. Beyond reviewing and explaining complex contracts of sale and property reports for clients, property lawyers are especially skilled at identifying terms that are unfavourable to the client. They then use their professional legal knowledge and negotiation skills to engage with the other party’s lawyer, pre-empting and reversing unfavourable situations for the client. In Australia, many purchase contracts are quite complex, and if “trap clauses” appear within them and are not resolved before signing, they can lead to a great deal of unnecessary trouble afterwards — potentially involving significant time costs and financial losses.

The Role of a Property Lawyer at Each Stage

A property lawyer plays a very important role throughout the property purchase process and can provide assistance in many areas, including but not limited to the following:

1. Purchase Consultation

During the purchase process, buyers can consult a property lawyer about any issues they encounter — for example, how stamp duty is calculated, what relevant documents need to be prepared, and how to correctly complete forms to ensure compliance with the requirements of laws and regulations. In these consultations, the property lawyer is the most reliable partner.

2. Property Settlement

Australia has high requirements for property transfer certificates, and any slight mishandling can give rise to significant legal disputes. A property lawyer can help reduce or avoid legal disputes. For instance, on the day of property settlement, the buyer’s lawyer will calculate the taxes and government fees payable by the buyer and seller to ensure the buyer pays correctly. Beyond this, the buyer and seller will exchange all legal documents in person and settle any outstanding payments, so that ownership of the property is legally transferred from the seller to the buyer.

3. Property Lawyers Can Anticipate Problems That May Arise

Generally, an experienced property lawyer can anticipate the issues that may arise during the purchase process. Before the purchase contract is signed, the property lawyer will provide relevant legal advice on the contract of sale, helping the buyer to eliminate unfavourable clauses to the greatest extent possible, so the buyer is “prepared for the unexpected.”

4. Property Lawyers Participate in Contract Review and Negotiation

A property lawyer can take part in reviewing the purchase contract, eliminating potential traps in the contract from a professional perspective as far as possible. In addition, the property lawyer will, based on the buyer’s circumstances, assist in negotiating with the seller.

5. Lawyers Have a Deterrent Effect

Just as most people have a sense of “keeping their distance” from lawyers, lawyers can give others a sense of pressure. This is because lawyers are recognised by the state as holding a special status — they are highly familiar with the law and can, when necessary, respond through legal means. Therefore, having a lawyer present at property settlement creates an intangible pressure on the “opposing party.” If an issue arises during the settlement, a letter of demand can be issued in the lawyer’s name to resolve matters that would otherwise require litigation.

Why We Recommend Hiring a Lawyer for Property Purchases

Whether to hire a property lawyer or a conveyancer ultimately depends on actual needs. For example, if you only need someone to help handle the standard conveyancing procedures, then a conveyancer will do. But if you are unfamiliar with the purchase process, find the purchase contract difficult to follow, face a complex transaction, or matters may involve legal issues, then hiring a property lawyer is the safer choice.

Final Thoughts

Based on our experience at NS Legal, we recommend choosing a property lawyer, because during the purchase process many people have encountered very difficult problems that were ultimately resolved successfully with the help of a property lawyer.