THE ROLE OF YOUR LAWYER IN A PROPERTY TRANSACTION
New Zealander’s have a love affair with property and during our lifetimes most of us will own property either for our own occupation or as an investment or both. It is a widely held misconception that conveyancing (the legal aspects of transferring ownership) of property is a straightforward task. In Christchurch in particular since the earthquakes of 2010, 2011 and beyond there is now no such thing as a “simple” conveyance if indeed there ever was! Buying your home is likely to be the most significant contract you ever enter into and it stands to reason therefore that having an experienced property lawyer on your side as your advocate and advisor is the logical thing to do.
In this article we take a short look at what your lawyer does in the background to assist you in completing that all-important sale, purchase or refinance. The role of a lawyer in conveyancing matters is largely misunderstood by the public and it is our hope that this article will dispel a few myths.
One of the principal roles of your lawyer in any property transaction is to act as a point of contact for various important parties in the transaction. In particular your lawyer will likely liaise with your mortgage advisor, bank or lender extensively during the due diligence phase. If you are a first home buyer your lawyer will also manage with you the process of dealing with your Kiwi Saver provider and if you are eligible, Housing New Zealand in relation to a home start grant.
And it doesn’t end there. Your lawyer will also be the principal point of contact for the real estate agent, your insurer or insurance broker, the local authority, quotable value and on occasions any number of other professionals including your property manager, valuer, surveyor, engineers and of course your building inspector. In the event that any issues arise during your due diligence investigation of any property, you can also expect your lawyer to be the enforcer of your rights under the contract, a negotiator on your behalf and a key advisor in the whole process.
Behind the scenes, your lawyer will receive and collate all of the relevant information relating to the property you are buying. This might include the land information memorandum from the local council, the building inspection report from your building inspector, the details regarding the earthquake claims and the scope of works, details of any earthquake repairs completed, details relating to insurance on the property and all matters relating to title and interests affecting the title. A fundamental part of your lawyer’s role is to keep you informed of the key dates and deadlines which are to be met during the course of your contract. In the event that a deadline cannot be met your lawyer will be the negotiator on your behalf to secure additional time to fulfil any conditions.
Having collated all the information relating to your purchase, your lawyer will advise you on all matters relating to or arising out of an investigation of the land information memorandum, the title to the land any insurance claims and of course the building inspection report. If necessary your lawyer will play a key role in assisting you to exit the agreement. Furthermore, should issues arise following your final inspection then your lawyer will be a key negotiator in managing any remedial work required of the vendor or on occasion negotiating the retention of funds pending any repairs being affected or on occasions, a reduction in the price if appropriate.
Another key role of your lawyer will be to advise you on the structure of your property ownership which will almost always depend on the nature of the relationship between the purchasers (if more than one) and might on occasion involve advice around ownership structures such as companies, partnerships or family trusts and in some circumstances, advice around relationship property considerations. Your lawyer will also guide you through the lending process and explain your obligations to the bank.
COMPLETION AND SETTLEMENT
One of the vital roles of your lawyer in completing your purchase is to see to it that all funds required are gathered into the lawyer’s trust account in a timely fashion so that settlement is completed on time. This will include communicating with your lender and ensuring that all of its requirements are met so that loan monies are available on settlement day. Your lawyer will ensure that any Kiwi Saver withdrawal, home start grant (if applicable) or personal contributions of yours are also received in time for settlement.
Your lawyer will prepare and execute the electronic documents authorised by you which see the legal title to the property transferred into your name and any new mortgage registered in favour of your lender. Following the completion of settlement your lawyer will attend to registration of the property into your names and thereafter, report to you and the lender with an up-to-date copy of the certificate of title and the registered mortgage. Finally, following settlement your lawyer will have the pleasant task of calling you to congratulate you on the purchase of your new home and advise you where the keys may be collected.
IN THE ENGINE ROOM
Lawyers rely on experienced solicitors, registered legal executives and legal secretaries to assist them with some aspects of your purchase so don’t be surprised if during your purchase you have contact not only with your lawyer but also his or her supporting solicitor, legal executive or secretary. We hope that after having read this you will appreciate that the role of your lawyer in any property transaction is one which is hugely important to the overall success of your sale or purchase. At Kannangara Thomson we have an experienced team of property lawyers and support staff available to help you with your property requirements.