Step 2 – Pre Contract

Vendor’s Statement

As your lawyer, it is our role to act on your behalf and look after your interests.

There are many steps to take in the sale process.

We start by taking detailed instructions, which is done by you filling in the on-line selling questionnaire.

If you don’t have a copy of the title we will obtain this through a title search.

Section 32 (vendors statement)

Prior to signing any contract for the sale of your property a disclosure statement providing prescribed information must be given to any intending purchaser.

To prepare a proper Section 32 Vendor’s Statement we need information about the property and we have to obtain certain documents to attach to the contract and Section 32 Vendor’s Statement.

We will apply to the proper authorities for statutory government certificates including town planning, local council, water &c. Once we have prepared the Section 32 it is important you check all details and check that we have included the correct titles, the correct plan of subdivision and any covenants or registered encumbrances. Once you are satisfied the documents are correct then it is in order for you to sign the Section 32

What happens if you don’t get it right.

Sale of Land Act 1962

S32 (5) “Where a vendor–

(a) supplies false information to the purchaser in the statements or certificates required to be given by this section; or

(b) fails to supply all the information required to be supplied in the statements or certificates required to be given by this section–

the purchaser may rescind any contract for the sale of the land which has been entered into on the basis of that information at any time before he accepts title and becomes entitled to possession or to the receipt of rents and profits.”
That is, the buyer can cancel the contract and you can lose the sale.

At Hayton Kosky, we have a proud tradition of getting it right. Unfortunately, the consequences of not getting it right are serious.

S12(d) Material Facts – Both you the vendor and the agent have an obligation to disclose “material facts“. That is, it is an offence to knowingly conceal any material facts (which are interpreted to be misleading or deceptive). Apart from your duty to provide and supply the prescribed information in s32 there is this additional duty to disclose material facts. Please ensure you inform us of any additional information you consider would be material. Whilst this might appear vague, any findings at a later date of concealment might lead to substantial fines being imposed.

Questionnaire

Our intentions are to make sure that your interests are fully protected as well as to give you the speediest possible service. It will help us to achieve these objectives if you take 5 minutes and complete the Selling Questionnaire.

Building works as an owner-builder

If in the last 61⁄2 years you have built or done renovations worth more than $5,000 as an owner builder special attention has to be made to comply with the Building Act 1993. A building inspection report has to be included in the contract and the works need to be insured by an approved insurer e.g. Australian Home Warranty Pty Ltd. If a contract is signed in contravention of the Act the contract is voidable at the option of the purchaser.

Combustible Cladding

Safety building requirements. As an apartment owner, you are required to disclose if your apartment/unit is in a building with combustible external wall cladding, or if you have been issued an Emergency Order, Building Notice or Building Order. This information needs to be disclosed in the Section 32 statement to be made available to prospective buyers. A good resource is the Victorian Building Authority – Cladding.

Capital Gains Tax

Be aware of the potential tax liability associated with your sale. For example, unless the property is used as your principal residence, you may be taxed on any profits made by you on the resale of such property.

If you intend to sell within 12 months of purchase, or if you believe you might be affected by any Capital Gains Taxes, you should contact the Tax Office or your Accountant.

GST

Ditto with GST.

GST is payable unless you qualify for an exemption. The sale of your own personal residence is a major exemption from GST.

Care, caution and consideration needs to be given to all other property sales including investment, commercial and brand new developments. Unless the contract contains a special condition regarding GST, the selling price will be deemed to include GST. If you are registered for GST and you are not entitled to an exemption, it is your responsibility to pass on the GST to the ATO.

Another exemption is the sale of an investment property which is considered to be the “sale of a going concern”. If this may be the case this needs to be discussed so the correct special conditions are added to the contract.

A partial exemption is the application of the margin scheme which requires a valuation report of the property as at 1 July, 2000.

Auction

Where you have chosen to auction the property we will prepare the auction documentation.

Presenting your Property

First impressions count, so it’s important to make sure your property looks its best from the moment it goes onto the market for sale. In getting your home spotless we highly recommend the Squeaky Clean Team.

Legal Fees

We are happy to give you a fixed price quote on our professional fees. As well you reimburse us for our out-of-pocket expenses for all title searches, certificates, settlement fees and GST. The terms and conditions of our retainer for acting on your behalf and what is covered and not covered can be referenced here.