Buying property is a relatively complex matter that requires careful attention. Because the process involves many procedures, even a small oversight can easily lead to losses. For example, in our previous article The Pros and Cons of Buying Off-the-Plan Property in Australia, we mentioned that property contracts typically include a 5% tolerance clause for off-the-plan floor area — meaning the final area of the property is permitted to vary by up to 5% from the area shown in the pre-contract provided to the buyer. In one case, someone purchased an off-the-plan property and, after construction was completed, discovered that the actual floor area was approximately 4.5% smaller than the area specified in the purchase contract. That very discrepancy affected the property’s natural light and usable space. Pitfalls and problems in the property-buying process arise frequently. Some people quietly endure them; others end up caught in disputes that drain time, energy and money. For that reason, when buying property in Australia, having someone with knowledge of property law watching over the process is extremely important. But who should that person be — a property lawyer or a conveyancer? This article will explore the question.
The Difference Between a Property Lawyer and a Conveyancer
Some people buying property in Australia do not have a clear understanding of the difference between a property lawyer (solicitor) and a property conveyancer (conveyancer). In fact, the distinction between the two is quite significant.
In terms of qualifications, a property lawyer has completed a systematic course of legal study, holds at least a bachelor’s, master’s or higher degree in law, and has gone through practical legal training before formally obtaining the right to practise. From a time perspective, a property lawyer generally needs 5–6 years of training before being admitted to practise.
A property conveyancer, by contrast, is not required to have a legal background. They only need to complete the property conveyancing course in the state where they reside, and can register as a conveyancer after approximately two years.
In addition, a property lawyer is not subject to geographic restrictions when handling Australian property law matters and can act on property matters across all of Australia. Their process tends to be more rigorous — from reviewing the contract and conducting title searches through to completing all legal procedures for the conveyance. A conveyancer, however, is limited by jurisdiction and cannot handle property conveyancing across state lines. For example, if you live in New South Wales but wish to buy a property in Queensland, a conveyancer in NSW cannot handle the Queensland conveyance for you.
There is also an easily overlooked issue — matters arising out of the purchase contract. Conveyancers are trained to understand and handle the standard steps of property conveyancing, but because they are not required to have a legal background and have not completed professional legal studies or practical legal training, they cannot provide clients with property-related legal services beyond the conveyancing process itself (such as division of property in a divorce).
When dealing with property matters, property lawyers are highly experienced and tend to be more thorough in handling the mechanics of the purchase and conveyance. Beyond reviewing and explaining complex purchase contracts and property reports to clients, property lawyers are particularly skilled at identifying clauses that are unfavourable to the client and, through their professional legal knowledge and negotiating ability, engaging with the other party’s lawyer to pre-empt and reverse situations that would be adverse to the client. In Australia, many property contracts are quite complex; if they contain “trap clauses” and these are not resolved before the contract is signed, they can later cause significant unnecessary trouble, as well as high time and financial costs.
The Role of a Property Lawyer at Each Stage
A property lawyer plays an extremely important role throughout the property-buying process and can assist in many ways, including but not limited to the following:
1. Advice on purchase-related questions
During the purchase process, buyers can consult a property lawyer on issues they encounter — for example, how stamp duty is calculated, what documents need to be prepared, and how to correctly complete forms to ensure compliance with legal and regulatory requirements. In these consultations, the property lawyer is the buyer’s most reliable partner, safeguarding the buyer throughout the entire process.
2. Property settlement
Australia has high requirements for transfer-of-title documentation, and any mishandling can give rise to significant legal disputes. A property lawyer can help reduce or avoid such disputes. For example, on the day of settlement, the buyer’s lawyer will calculate the taxes and government fees payable by each side to ensure the buyer pays the correct amount. In addition, the buyer and seller will exchange all the 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 identify potential issues in advance
Generally speaking, experienced property lawyers can anticipate problems that may arise during the purchase. Before the purchase contract is signed, a property lawyer will provide legal advice on the contract, doing everything possible to eliminate unfavourable clauses for the buyer and ensuring the buyer is “prepared for the worst”.
4. Property lawyers participate in contract review and negotiation
A property lawyer can participate in the review of the purchase contract and, from a professional perspective, help eliminate potential pitfalls in the contract as much as possible. In addition, a property lawyer will, based on the buyer’s circumstances, assist in negotiating with the seller. For example, China imposes foreign-exchange controls, so transferring funds from China to Australia can take additional time. In such cases, the property lawyer will negotiate with the seller’s lawyer to request an extension of the deposit payment deadline, ensuring the buyer can properly perform the contract.
5. Lawyers have a deterrent effect
Just as most people feel a sense of “keeping their distance” from lawyers, lawyers can exert a degree of pressure on the other side. This is because lawyers are nationally recognised “quasi-judicial officers” with a special status: they are highly familiar with the law and, when necessary, can respond through legal means. As a result, having a lawyer at settlement exerts an invisible pressure on the “opposing party”. If an issue arises during settlement, a lawyer’s letter can be issued on the lawyer’s behalf to resolve matters that would otherwise have required litigation.
Lawyer or Conveyancer?
Whether to engage a property lawyer or a conveyancer ultimately depends on your actual needs. For instance, if you only need someone to handle the standard conveyancing procedures, a conveyancer may be sufficient. But if you are unfamiliar with the purchase process, find the contract difficult to follow, the purchase is complex, or legal issues may be involved, then engaging a property lawyer is the safer choice.
Based on the experience of our firm, NS Legal, we recommend that clients choose a property lawyer. In the course of buying property, many people encounter particularly tricky issues that, in the end, are successfully resolved with the help of a property lawyer. While the fees charged by a property lawyer and a conveyancer differ somewhat, rather than waiting until an “out-of-scope” issue arises mid-purchase and then engaging a property lawyer, it is better to take out legal insurance for your property journey from the very outset.
