Settlement agent or conveyancer
Information about the role of a conveyancer or settlement agent
Unless you are a suitably qualified lawyer, it would be very unwise to try to carry out the settlement of your own property. It's a complex and time consuming business, with many traps for the unwary.
When you are buying a property, it is necessary for all the paperwork to be completed and all the promises fulfilled in the contract for the sale of the property. Such work is known as conveyancing. You can employ a licensed settlement agent or a lawyer with a current practicing certificate in law to attend to all these details on your behalf.
The main difference between employing a settlement agent as opposed to a lawyer is that settlement agents are not qualified to give you legal advice. However, a settlement agent is required by law to let you know when it is a good idea to get legal advice. It is a good time to think about employing a settlement agent or a lawyer when you make the decision to start looking at properties.
Conveyancing is the legwork to make sure the promises in a contract are carried out.
Role of the conveyancer
The following are some typical things you can expect from a conveyancer.
Settlement agents must be licensed by the Settlement Agents Supervisory Board to operate as a real estate settlement agent in Western Australia.
Lawyers must have a current practising certificate in law from the Legal Practice Board to perform conveyancing in Western Australia.
If using a settlement agent, you must be given an Appointment to Act form, that you and the settlement agent need to sign which authorises the agent to act on your behalf.
- A settlement agent must tell you when it is a good idea to get some legal advice about buying a property.
- If someone who is involved in buying or selling the property, such as the real estate agent or bank that is lending you money suggests that you use a particular settlement agent, they must give you a form for you to sign that explains your rights.
Note: You do not have to use a particular settlement agent because someone else has suggested or recommended you do so.
The conveyancer:
- ensures the completion and lodgement of documents to transfer the details of ownership on the certificate of title;
- makes necessary enquiries, such as title, rates and zoning; double checks that all inspections and other special conditions in the contract have been completed prior to settlement and ensures that their client is satisfied that the conditions have been met;
- requests funds to proceed to settlement; and
- attends settlement on your behalf.
The conveyancer should keep you informed about the progress of buying your property and let you know about any problems.
You are free to choose or change your conveyancer at any time. However, if you do, you may be required to pay some money to any previous conveyancer for the work already done on your behalf.
There are some things to remember about the role of a conveyancer.
Settlement agents cannot give you legal advice.
Neither can they act for both the buyer and the seller unless both the buyer and the seller gives permission to do so on the appointment form.
Agents or lawyers conducting a settlement must either not take on a client or cease to act for an existing one if they have a conflicting interest in the transaction.
Choosing a conveyancer
When selecting a settlement agent or lawyer, shop around using the Yellow Pages and ask for recommendations from family and friends. It is recommended that you choose your own conveyancer, who is not also providing conveyancing services to the seller.
The maximum (GST-inclusive) fee that settlement agents can charge for their services is set by law. Settlement agents are free to charge less than the maximum fee. The maximum fee varies depending on:
- the value of the property;
- whether you are the purchaser or seller of the property, because settlement agents must do more work when acting for a purchaser; and
- whether the house you are purchasing is a strata titled property, as there is more work to do if the property is strata titled.
Lawyers tend to charge similar amounts to those charged by settlement agents, but you should check that this is the case.
In addition to the fee for service, settlement agents and lawyers can ask you to pay for any additional costs they incur while attending to your settlement. These costs include search fees, phone calls and faxes. You can ask your settlement agent for an itemised list of these costs.