What to look for in a property lawyer: Part 3 - Final

In my final instalment on what to look for in a property lawyer, I discuss two key aspects to consider.

Value for Money


Let me say at the outset, this does not mean cheap! Too many buyers/sellers let the price determine who they will use. There is nothing wrong with obtaining a few quotes too compare. However, what many people forget to take into account is the value and significance of the property transaction. If you are spending $2,000.00 on a holiday it is perfectly understandable that you will try to minimise other transaction costs. But if you are spending $600,000.00 or $1,500,000.00 to purchase a property, the costs of a property lawyer form a very small proportion of the overall costs. More importantly, the purchase is one of the biggest transactions you will ever enter into. Isn't it worth paying for expertise, experience and quality service?

A property lawyer will charge more than a conveyancer. But you should consider this as an appropriate investment in your property. A good property lawyer will ensure that your sale or purchase is handled professionally with minimal hassles.

Contactable and Personal Attention


What clients have mentioned to me about using conveyancers is the lack of personal care and attention that they have received. This is linked directly to the fees that you pay. If the conveyancer is going to be half the price (or often more) of a property lawyer, then you can expect half the time spent on your transaction. This may mean not being able to speak to the person in charge of your sale or purchase or delays in getting back to you etc. Spending the money on a good property lawyer means that you will be able to speak to someone who knows exactly where your transaction is up to. It means that your lawyer will understand the context for your sale and purchase and will guide you through it in a stress-free manner.


Jonathan Marquet
Emil Ford & Co.

What to look for in a property lawyer: Part 2

Earlier this year, I met up with a commercial leasing agent to discuss how our businesses might be able to assist each other. One of the questions I asked the agent, was "what do agents think of lawyers?". He replied with "deal breakers". Sadly, that is how many lawyers are perceived and how many lawyers actually operate in property transactions, whether in a commercial/retail lease or sale of property. 


Practical and Commercially Aware


Property lawyers have to walk a tightrope between sound advice that minimises risk and facilitating the transaction for the client. Your lawyer should appreciate and clearly understand your desired outcomes from the transaction. An understanding of what you want out of the deal will help your lawyer work out what things to fight for and what things are less relevant. Too often lawyers operate in a legal vacuum and give advice without considering the needs of a client.


Honesty and Frank Advice


We all make mistakes. This is a fact of life. However, I know for myself, that if I am about to make a mistake, I would rather have someone raise it with me than just let me continue along ignorant of the fact. Clients can have particularly ideas that are just not practicable or legally relevant or necessary. Your property lawyer should be honest with you and be willing to disagree (politely) with you when they feel it is timely to do so. This doesn't mean that you have to agree with your lawyer. Ultimately, your lawyer can't make the commercial decision for you. However, you are paying them for legal counsel, and you don't want a lawyer who turns out to be a 'yes-man'. 


Co-operative and Commitment to Achieve the Goal


Property transactions, particularly sales and purchases, have a mutually beneficial outcome. You want to sell and the purchaser wants to buy. A sound property lawyer will be willing to co-operate with the other side to facilitate the transaction. A lawyer who is not looking after their client's interests will take an oppositional/aggressive approach to the transaction and quibble over each step with the other side. There will be times where a lawyer will need to assist their counterpart in someway (and vice versa) to allow the deal to reach its goal. Lawyers are part of a fraternity of professionals and they should approach each transaction with professionalism and mutual respect for their legal counterpart. 


Similarly to being co-operative, a good property lawyer knows how to get the job done. They can think outside the box to solve the problem that is standing in the way. Conveyancing transactions are notorious for creating a crisis at the last minute. How would your property lawyer respond? Would they just shake their head and say that there's nothing that they can do? Or would your property lawyer be creative, work with the other side, and try something that has never been done before to close the deal for you?


Jonathan Marquet
Emil Ford & Co.

What to look for in a property lawyer: Part 1

Some may see outlining what makes a good property lawyer by a property lawyer as a fairly self-serving exercise. However, the quality of property lawyers and conveyancers in the market varies significantly. Many clients don't know what they're missing out on.

Specialist knowledge/expertise

The property lawyer that you use should have a thorough understanding of property law. That's a bit obvious, I know. But in actual fact, many practitioners and particularly conveyancers, don't understand the theory and legal basis for property transactions. You need a property lawyer who not only knows the procedures for ensuring you get good title to a property or that you transfer your property smoothly, but who understands why those procedures are in place. When you understand why certain things need to be done, it gives you a stronger basis to come up with an effective solution to a problem that may arise.

Other related knowledge/expertise

Property transactions touch on a number of different areas of law. Your property lawyer should have an adequate understanding of GST, duty, capital gains tax, land tax and trusts. There may be ways to minimise taxation or reduce liability by structuring the transaction in a particular way. Sometimes contractual or litigious issues arise in a property transaction. Your property lawyer should be able to advise you in relation to all these issues.  


Jonathan Marquet
Emil Ford & Co.

Land tax: Whether you love it or hate it, at least get to know it

Whether you are a supporter of land tax or feel that the NSW government "should get its dirty hands off my property", land tax is an issue that cannot be ignored.

Many of us will be exempt from land tax under the principal place of residence exemption. However, there may be other circumstances where land tax will be payable.

It is important to register for land tax with the Office of State Revenue (see info here: OSR - Land Tax). If you fit snuggly under a warm exemption blanket, then you can declare this on the application form and on the basis that you are correct and your circumstances do not change, then the OSR won't bother you.

If you are liable for land tax on an investment property, then the OSR will send you a land tax assessment notice indicating how much land tax you are liable to pay. This will be based on the valuer-general's valuation of your property for that year.

I regular act for those in rain-drenched but ever so culturally sophisticated Victoria, who are selling property in NSW but have been unaware that land tax has been payable since their purchase. When you purchase a property, make sure that you are investigate and are aware of all the taxation and other governmental charges that are applicable to your property.

You may have enjoyed the principal place of residence exemption in the past but if you are absent from your property for more than 6 years you may lose the exemption and be liable for land tax. Similarly, if you rent out a few of your spare rooms, then you may be hit with a land tax liability proportionate to the percentage of the property the rooms make up. These are just a few examples of situations where land tax may be applicable.

Perhaps our new Premier will scrap land tax. Perhaps not. But in the meantime, get in touch with the OSR and ensure you know where you stand when it comes to land tax.

Jonathan Marquet
Emil Ford & Co.

To include or not to include, that is the question

In a sale of land, items that are fixed to the property (fixtures) are sold along with the land - they automatically pass with the property. Items that are not fixed (chattels) do not pass with the property.

"Thank you for the property law lesson, Jonathan, but what has this got to do with me?", I hear you ask. Well, it is an important consideration in how the Contract should be drafted in a conveyancing transaction. If something is a fixture but you want to take it with you when you vacate the property, then this item needs to be "excluded" in the Contract. This means that it will not pass with the property when the keys are handed over.

What many people selling their property forget to think about, is that unless a chattel has been specified as an inclusion in the Contract, your cant't just leave it at the property for the new owners (unless of course they agree to you doing so). Leaving wardrobes, old fridges etc may seem like a generous gesture, but chances are the purchaser will see them during their final inspection and want them removed before they settle. The last thing you want as a vendor, is to have settlement held up because of a cupboard left in the second bedroom.

If there are furniture or other items that you don't want to take with you when you move, then make sure these are listed as inclusions in the Contract.

Jonathan Marquet
Emil Ford & Co.