Resource

Verification of Identity

When you’re involved in a property transaction as a buyer or seller, it’s a legal requirement to have your identity verified. This applies to individuals, but also to people who are acting on behalf of a business or other legal entity.

As the person being identified, you must produce proof of your identity in the form of current and original documents.

Your Australian driver’s licence, birth certificate or passport are all excellent choices for verifying your identity, however there are other documents which are also acceptable.

You can find a comprehensive list of acceptable identity documents on the Australia Post website.

Contract

The Contract you sign contains what we call the Particulars of Sale – this includes things like the vendor and purchaser details, the agent details, the full legal address of the property and the Certificate of Title reference (every single property has a unique reference number).

There may also be items at the property that are included in, or excluded from the sale, and these will be detailed in the Contract.

If the property is tenanted, information about the tenancy is also contained in the Contract along with any other conditions that need to be satisfied before the Contract is considered “unconditional”. For example, if the completion of the terms of the contract are subject to you receiving finance approval then that will also be detailed your Contract.

What is a Form 1

A Form 1 is a formal statutory disclosure statement which provides a purchaser with certain details about a property. The Form 1 must be served by the Vendor (seller) on the purchaser at least 10 days prior to settlement date. The most common way for a Form 1 to be served in by email, however other methods of service include registered post or serving the purchaser in person. If you are buying a property at Auction, the Form 1 must be on display at the Real Estate Agents office at least 3 days prior to Auction day.

Under Section 7 of the Land and Business (Sale and Conveyancing) Act 1994, the Vendor is required to serve a Form 1 (Vendors Disclosure Statement) on the Purchaser. The Form 1 provides information from the Vendor, Council and Government Departments relating to the property being sold. Once the Contract has been fully executed and the Form 1 has been served, your cooling-off period will commence. You will receive two clear business days to cool-off and terminate the Contract from the date the Form 1 is officially served. If you are unsure of the date your cooling-off period begins, you should speak to the Real Estate Agent. It is important for your Conveyancer to review the Form 1 during your cooling-off period so that we can advise of any implications and matters affecting the land.

The Form 1 is quite a lengthy legal document and it can look overwhelming when you first see it. It is sometimes referred to as the vendor disclosure statement.

The Form 1 includes the particulars of the property and the information that is gathered from what we call ‘searches.’ These are requests that are made by the preparer of the Form 1 (your agent or a professional Form 1 preparer). The responses to those requests are then compiled into the Form 1 document and the seller of the property confirms that everything legally required has been disclosed in that document.

Both the seller and buyer sign the Form 1. It’s a very important document not just because the information is important but because once you have signed your Contract and received the Form 1, your cooling-off period begins.

If you buy at auction, there is no cooling-off period but you still need to be happy with the information contained in the Form 1. It will be on display at the agent’s office 3 business days prior to the auction as well as being displayed at the property at least 30 minutes prior to the auction.

The Form 1 will usually contain the following;

  • Certificate of Title
  • Form R3 (unless it is a commercial property)
  • Council Search (note this will also disclose any overlays and zones, heritage information etc.)
  • Property Interest Report
  • Emergency Services Levy Certificate
  • Land Tax information
  • SA Water information
  • Title and Valuation report

Copy of Plan of Subdivision and any agreements or covenants affecting the property. With a proposed lot, documents such as By-laws, Scheme Description, Development Contract are also included.

The cooling off period

Once you have received the Form 1 it is deemed served and your cooling off period will commence provided the Contract of Sale is executed by all parties (Vendor and Purchaser). You have two clear business days to cool off once receiving the Form 1, so if the Form 1 was received on a Thursday you would have until midnight Monday to cool off provided neither of the business days were public holidays. Your cooling off period is a good time to undertake a building and pest inspection if it was not a special condition of the Contract or negotiate any changes you wish to make to the Contract.

If you are buying a property at Auction, you will not receive a ‘cooling-off’ period and the Contract will be unconditional, so it is important to undertake your own due diligence prior to Auction day.

Other scenarios when you will not receive a cooling off period are if you are purchasing non-residential (commercial) property and the entity you are purchasing in is a company or body corporate. You may also choose to waive your cooling off rights in some circumstances with a certificate from a solicitor. All exemptions from cooling off can be found in the Land and Business (Sale and Conveyancing) Act 1994.

Foreign Persons

Foreign persons (which includes natural persons and corporations) or foreign trusts that acquire an interest in residential land in South Australia are required to pay a foreign ownership surcharge (the “surcharge”) of 7% of the value of the interest in residential land.

Click here for more information:

Foreign Investment Review Board
Revenue SA Foreign Ownership Surcharge
Residential property and exemption certificate application fees

Stamp duty relief

If you are a first home buyer and eligible for the stamp duty first home buyer relief, the relief may:

  • Reduce your stamp duty to zero if the value of your new home is below $650,000 (or $400,000 for vacant land); or
  • Partially reduce your stamp duty if the value of your new home is below $700,000 (or $450,000 for vacant land).

Stamp duty relief for eligible first home buyers applies to contracts entered into on or after 15 June 2023.

The eligibility criteria for the stamp duty relief are based on the same criteria for the first homeowner grant. If you are eligible for the first homeowner grant you will generally be eligible for stamp duty relief, however you will still need to apply for both.

There are also some circumstances where you may not be eligible for the first homeowner grant, but will be eligible for stamp duty relief, for example if you are purchasing a new home valued between $650,000 and $700,000 (which exceeds the first homeowner grant property value cap).

You may be eligible for relief if you are:

  •  An Australian citizen or permanent resident. New Zealand citizens permanently residing in Australia who hold Special Category Visas may also apply. Only one applicant must meet this eligibility requirement.
  • At least 18 years of age at the time of making application for stamp duty relief.
  • A natural person.

Companies and trusts are not eligible for stamp duty relief, except in the case of legal disability.

Click Here to know more about Stamp Duty Relief

First home buyers

  • The SA government offers a $15,000 grant: non-taxable First Home Owners Grant Stamp Duty Relief for First Home Buyers, toward the purchase or construction of a new residential property.
  • You might also be eligible for Stamp Duty relief as a First Home Buyer. Learn more about the eligibility criteria here First Home Buyer Stamp Duty Relief in South Australia.

First home buyers may be eligible for a stamp duty relief on the transfer of land in certain circumstances. Here are the conditions under which you may be eligible:

  • Buying a new home* (this includes properties such as a house, flat, unit, townhouse or apartment).
  • Purchasing an off-the-plan apartment.
  • Securing both land and a new home together, typically under a comprehensive building contract.
  • Purchasing vacant land with the intent to build your new home on it.
  • Vacant land where you’ve paid $450K or over is not eligible.
  • A new home where you’ve paid $700K or over is not eligible.

*Note: The definition of a “new home” for the purpose of this relief may vary. It’s always a good idea to confirm the specific details as they pertain to your situation.  Find full details here: Stamp Duty Relief for First Home Buyers in SA.

Deceased estates

A process called probate is carried out to confirm that the person’s will is valid and that it accurately represents the intentions of the deceased person.

The executor or administrator of the person’s estate can then distribute the property and other assets according to the deceased person’s wishes. 

But when a property is owned by more than one person, things can get complicated.

  • Was the property held as ‘joint tenants’ with a surviving spouse?
  • Was the property held jointly with one or more ‘tenants in common’?
  • Was the property held jointly with one or more ‘joint tenants’?
  • Is there a mortgage over the property?
  • Was the property being rented out?
  • Is the property occupied by a beneficiary of the will?
  • Is the property liable for land tax?
  • Has the owner entered into a Contract of Sale for the property?

Land divisions

Conveyancing can assist with your land division and will help guide you through the process. We are experienced in Torrens Title and Community Divisions and are able to provide tips about the preferred type of division

Before you start the process, you should contact the relevant Council authority and enquire about planning requirements. It is important to undertake your own due diligence and make sure you are not overcapitalising on your investment. Become familiar with the area you are intending to subdivide and research the median house prices and the type of demographic you will likely be attracting. Speak to a Real Estate Agent to obtain an idea of the expected sale price for the land after you subdivide. If you want to develop and sell, then speak to a builder so that you know exactly what your investment will cost before you begin. It is important to discuss your project with you accountant and surveyor before you start. This way you can ensure you purchase the original parcel of land in the correct entity to maximise your profits and minimise your tax liability.

Torrens Title Division

A Torrens title is a single certificate of title for an allotment of land. It is the most common type of title in South Australia.

Community Division

Community Titles is the division of land into at least two Lots and Common Property in a manner similar to Strata Titles. If you intend to develop (build) it will be your responsibility to arrange for new NBN points to each new block of land. You or your builder may apply for the new points online through the NBN Co website.

Click here for more information:

PLAN SA – SOUTH AUSTRALIA’S PLANNING AND DEVELOPMENT SYSTEM

NBN CO – DEVELOPING A NEW PROPERTY LINK

Shortfall funds direction

What is Shortfall fund? Shortfall fund is a difference between bank loan and required settlement fund. Shortfall fund = Purchaser Price + Stamp Duty & Transfer fees + Other Disbursements – Paid Deposit – Bank Loan Ways to Provide Shortfall funds:

  1. Shortfall Authority to lending bank: If you are having bank account with bank you are taking home loan, you can authorise your bank to provide settlement fund from your saving account, please advise your mortgage broker/bank for the same. For Example, If You are taking home loan from NAB and you are also have a saving account in NAB, you can authorise NAB to take extra fund required for settlement from your saving account. This facility cannot be availed if you are taking loan from NAB and you are have saving account in Common Wealth Bank.
  2. Our Trust Account: If you don’t have bank account with bank providing home loan, you need to provide us funds in our trust account. We will provide you trust account details at later stage. This is a statutory trust account and not a personal account similar to trust account you would have paid deposit to real estate agent. These accounts get audited. We will issue a Trust Account Receipt once we have received the funds into trust account again similar to receipts you would have received from your real estate agent. Source: https://lawhandbook.sa.gov.au/ch26s03s04s10.php

Title insurance

Title insurance provides cover for a range of protections including:

Illegal building works:

Title insurance provides cover for any structures or renovations built by previous owners without council approval. See the Policy for more details including applicable cap and conditions.

Incorrect boundary:

Title insurance provides cover for boundary fences (built prior to your ownership) that extend onto your land and prevent you from accessing part of your land. Fraud or Forgery: title insurance provides cover for fraud (at the time of purchase or anytime during ownership) Other property ownership risk.

Title Insurance Provider: Following is the two well-known title insurance providers, and we are in no way associated with them. You are advised to do you own research before choosing any insurance provider.

First Title: www.firsttitle.com.au
Stewart Title: www.stewartau.com

Joint tenants vs tenants in common

There are two types of ownership when there are more than one party purchasing a property. Joint Tenants OR Tenants In Common.

When land is transferred to more than one person, they can own it (be “registered on the Certificate of Title”) either as Joint Tenants or as Tenants in Common. In very simple terms, JOINT TENANTS collectively own one interest in the land. Various consequences flow from owning as a Joint Tenant. For example, any one Joint Tenant:- is entitled to occupy the whole of the land; has exactly the same interest (share) in the land as every other Joint Tenant; cannot easily sell/ transfer his or her interest to anyone other than another Joint Tenant in the same land; cannot leave the share in the land to a person of his or her choice by Will. The share of a Joint Tenant passes to the other Joint Tenant(s) when he or she dies, whether or not they are named in the Will as beneficiaries. It is usual (but not essential) that a husband and wife acquire land as Joint Tenants.

In contrast, TENANTS IN COMMON own individual shares in an interest in the land. A Tenant in Common:-  may be entitled to occupy only part of the land;  may have a greater or lesser interest in the land than the other Tenant(s) in Common;  can freely transfer his or her interest to anyone;  can leave his or her share in the land to a person of their choice, in their will. Ownership as Tenants in Common is usually preferred by:- purchasers who want to retain the ability to transfer their interest independently of the other(s) or leave it under to a person of their choice by Will;  purchasers who have contributed unequally to the purchase and so, wish to hold the land in unequal shares that reflect the proportion of the contribution of each.

If you have further questions concerning ownership as Joint Tenants or Tenants in Common, please feel free to call at any time.

Settlment process

Your Conveyancer will finalise the transfer of ownership of the property. Your mortgage broker will advise your conveyancer once your loan has been formally approved (if you are applying for finance) and a copy of your formal approval should be forwarded to all parties involved. Once your loan is approved you will need to execute your mortgage documents. The documents are usually send to you by email and will need to be printed and signed. The originals are to be returned to your bank by express post. Prior to settlement your Conveyancer will arrange a time with you to complete your ID Verification. You will be required to bring original forms of ID to a face-to-face meeting. Suitable categories of ID documents include your original Passport and Drivers Licence/Proof of Age or Original Birth Certificate, Medicare Card and Drivers Licence/Proof of Age. If your name on your ID documents are different to your current name you will need to bring evidence as to why your name has changed (i.e. Marriage Certificate or Change of Name Certificate). Once all documents are signed a certified your conveyancer will confirm settlement is officially booked and forward you a final settlement statement with details of where to transfer any balance of money in readiness for settlement. If you are booking a removalist you should speak to your conveyancer to work out a suitable time for them to arrive at the property, as they will not be allowed access until the property is settled. You will need to arrange for utilities to be connected at the new property. Your conveyancer will notify SA Water, Local Council, Strata/Community Corporation Manager (if applicable) and Revenue SA of the change in ownership.

You don’t need to do anything on settlement day, your conveyancer will attend to finalising the transfer on your behalf and will call you and the Real Estate Agent to confirm once settlement is completed. Keys for your new property can be collected from the real estate agent once settlement completion is confirmed.

GST withholding at settlement

Are you buying an apartment, a new building or subdivided land?

Where a property is classed as new residential premises or potential residential land (generally newly subdivided land) it is a Purchaser’s obligation to pay the GST component of the purchase price directly to the ATO on behalf of the vendor. This ruling can also apply so substantially renovated property as the sould most likely fit the guidelines as being considered new residential premises.

Why was this introduced?

This measure was introduced under the Taxation Administration Act 1953 in 2018.  In 2021 this measure collected $6.1 billion and so far in 2022 $4.1 billion has been collected.  It is important to note that this is revenue which should always hae been paid to the ATO and by requiring it to be paid at settlement the Commonwealth is ensuring that individuals and corporations meet their GST obligations.

The idea is to improve the integrity of the GST system for certain transactions and to eliminate phoenix activity.  Phoenixing is a practice wherby developers receive the funds from settlement of the sale of their property then dissolve the business before the next BAS is due to avoid paying the GST

GST is to be withheld by the Purchaser and remitted direct to the ATO on or before settlement.  This removed the ability for developers to hold on to the GST for up to three months and may have an impact on their cashflow.

How much is required to be withheld?

If the purchase is for a taxable supply of either new residential premises or potential residential land then the withholding amount will be 1/11th of the contract price.  If th purchase is a taxable supply under the margin scheme then 7% is required to be witheld.  Other transfers to associates (eg. for nil or reduced consideration ) will require 10% of the GST exclusive market value to be witheld.

Vendor’s obligations

Vendors will be required to notify any purchaser whether they ARE required to withhold an amount from the purchase price and pay that to the ATO OR whether they ARE NOT required to withhold (the supply may not be taxable or an exclusion applies). This notification must be writing and must be provided at least 14 days before making the supply.

Contracts for the Sale and Purchase of Land will be updated to include a section whereby the vendor can provide these details when preparing the Contract or a separate document may be used if necessary.

If a withholding obligation exists then the notice must include:

  • The name and ABN of the supplier;
  • The amount that the Purchaser will be required to pay to the ATO;
  • When the Purchaser is required to pay this amount (ie settlement date);
  • The GST inclusive market value of any non-monetary consideration; and
  • Any other matters specified in the Regulations

What happens if the vendor fails to provide a notice?

There are penalties that will apply if the Vendor either fails to provide the required Notice or fails to notify the Purchaser of the required details.  If either of these occur then a penalty of $21000 would be payable if the Vendor is an individual and may be 5 times that if a corporation is involved.  This penalty would be imposed on every contract the developer fails to provide the required  details for.

Purchasers obligations

The Purchaser is required to withhold the amount specified by the Vendor and pay the balance of the sale price as required under the contract.  The withheld amount will be remitted to the ATO or or before the day the consideration (other than the deposit) is provided to the Vendor.  This is usually the settlement date.  If there are multiple Purchasers then the amount can either be paid a a whole or each can pay an amount in proportion to their interest in the property..

There is no requirement for Purchasers to be registered for GST

Prior to settlement a GS property settlement a GST property settlement withholding notification needs to be completed and lodged online to the ATO.  A conveyancer or legal representative can do this on the Purchaser’s behalf. This Form needs to be completed as soon as possible and the ATO will provide a unique payment reference number (PRN) and lodgement reference number (LRN).

Once settlement has taken place the GST property settlement date confirmation has to be completed with the unique PRN and LRN provided by the ATO

If settlement does not proceed then the second form is not required.

Once completed and submitted to the ATO payment must be made on or before the day of settlement. The options at present are via the e-conveyancing platform, electronically by direct deposit/Bpay or by Bank Cheque.  A Withholding Payment Receipt will be issued via email once finalised.

Purchasers penalties

A Purchaser that fails to pay the withholding amount as required under the Contract may be liable to pay the Commissioner a penalty which is equal to that amount.

There will be no penalty if the Purchaser was given a notice by the Vendor either stating that the premises were not new residential premise or indicating that there was no requirement to withhold any amount for the GST.

Caveats

The term caveat derives from the Latin term ‘beware’, essentially it is a warning or caution. A caveat can be placed on a Certificate of Title to protect a person’s unregistered interest in that land. A mortgage agreement or a spouse’s interest in land are examples of this. A caveat can prevent any further dealings with the property until that unregistered interest is dealt with.

There a number of questions that come up when discussing caveats so here are a few of the common ones:

There are multiple reasons for lodging a caveat some of which are:

  • A right of an individual who has contributed to the “acquisition, maintenance and improvement” of the land;
  • Unregistered mortgages and Loan Agreements;
  • Unregistered leases;
  • Caveats by authorities (such as for unpaid taxes or rates);
  • Charges on the land for commercial ventures;
  • A Purchasers interest in a contract to buy land;
  • As a beneficiary to a Will
  • As beneficiary of a Trust

It is a common misunderstanding that a person/party can lodge a caveat over the property of a person who is in debt to them to secure the repayment of that debt. This is not enough in South Australia for one person to just owe another person money as there must be a real connection with the land. The Lands Titles Office will examine a caveat before it is registered on a Title to ensure the reason for the lodgement is valid (a caveatable interest), however the merit of a caveat is a matter for the parties involved.