If you are buying or selling property, there are two key documents to be considered. The first is the Form 1 document which outlines the detail of the subject property; and the second is the Contract of Sale. The Contract of Sale outlines important information such as the price and terms of the sale and should only be signed after both it, and the Form 1, have been reviewed by your conveyancer. In South Australia, you have two full business days during which you can ‘cool off’ so it is important that you leave sufficient time for your conveyancer to review both of these documents.
What is a Form 1?
In South Australia, the process of buying a property involves several legal requirements and obligations to protect both buyers and sellers. One crucial aspect of this process is the completion and submission of a Form 1, which provides essential information about the property to the potential buyer. Additionally, South Australia also has a cooling-off period, allowing buyers to withdraw from the contract within a specific timeframe. In this article, we will explore in detail what information is contained in a Form 1 and detail surrounding the cooling-off period in South Australia.
The Form 1, is sometimes also referred to as the Vendor’s Statement. It is a legal document that must be provided by the seller to the buyer before or sometimes at the same time a contract of sale is signed. It serves as a disclosure statement, containing vital information about the property that allows the buyer to make an informed decision about their purchase. The purpose of the Form 1 is to ensure transparency and protect the buyer from any hidden issues or potential risks associated with the property. Here is a list of the key information typically included in a Form 1.
Title and Ownership
The Form 1 provides details regarding the legal title of the property, confirming the seller’s ownership rights. It outlines any encumbrances or restrictions on the property, such as mortgages or easements, which may impact the buyer’s use or future development plans.
Zoning and Planning Information
This section of the Form 1 discloses the property’s zoning, which determines its permitted use and any applicable development restrictions. It may also include information about planning schemes, overlays, and heritage listings that could affect the property.
Building and Compliance
The Form 1 outlines whether the property has all the necessary building approvals and compliance certificates. This includes information on alterations, renovations, or extensions carried out on the property and ensures they were done in accordance with building regulations.
Services and Utilities
The document provides details on the availability and location of essential services and utilities, such as water, gas, electricity, and sewerage. This information helps the buyer assess the property’s practicality and potential costs associated with connecting or maintaining these services.
Encroachments and Boundaries
The Form 1 highlights any encroachments or boundary disputes that may exist concerning neighbouring properties. This ensures the buyer is aware of any potential conflicts and can seek legal advice if necessary.
Environmental Matters
This section discloses any known environmental issues that may affect the property, such as contaminated soil or nearby hazardous waste sites. It helps the buyer evaluate the potential risks and liabilities associated with the property’s environmental conditions.
Council Rates and Charges
The Form 1 provides information on the property’s council rates and charges, including any outstanding amounts owed. This allows the buyer to assess the financial obligations associated with the property.
Reviewing your contract and Form 1 is part of our service at Eckermanns. We’ll alert you if we think there is anything that is unusual or of concern and it is important that you provide us with your documents as soon as they are signed. The reason we need to review those documents as early as possible is because you have a short ‘cooling off’ window that applies if you are purchasing by private treaty.
If you are purchasing at auction, there is no cooling off period so it is important that the Form 1 is reviewed before you bid at auction. The Form 1 should be made available for at least 3 days prior to the auction at the office of the sales agent and for 30 minutes before the auction begins.
Contract of sale
A contract of sale for the sale of property is usually prepared by a conveyancer, real estate agent or solicitor. At Eckermanns, if we are taking care of your conveyancing for you, we will review your contract along with your Form 1.
In South Australia, a residential contract of sale typically includes various details and clauses to protect the rights and interests of both the buyer and the seller. Here are some common details typically included in a residential contract of sale in South Australia:
Parties Involved
The contract identifies the buyer(s) and seller(s) involved in the transaction, along with their respective contact information.
Property Description
The contract includes a detailed description of the property being sold, including its address, lot number, and any relevant land dimensions or measurements.
Purchase Price and Payment Terms
The agreed-upon purchase price is stated in the contract, along with the currency. The payment terms, such as the deposit amount and due dates, are also outlined.
Inclusions and Exclusions
The contract specifies the items included in the sale, such as fixtures, fittings, appliances, or any other agreed-upon items. It may also mention any exclusions, such as specific furniture or personal belongings that will be removed by the seller.
Special Conditions
The contract may include special conditions agreed upon by both parties, such as subject-to clauses (e.g., subject to finance or building inspection) or specific timelines for completion or settlement.
Title and Encumbrances
The contract verifies that the seller has the legal right to sell a property and confirms the type of title (e.g., Torrens Title) being transferred. It may also address any encumbrances or restrictions affecting the property, such as easements or caveats.
Cooling-off Period
The contract may specify a cooling-off period, which allows the buyer to withdraw from the contract within a certain number of days after signing. It’s important to note that this period may not apply in all situations.
Settlement Date
The contract stipulates the agreed-upon settlement date, which is when the buyer takes possession of the property and completes the financial transaction.
Property Inspections and Disclosures
The contract may address the buyer’s right to conduct inspections, such as building and pest inspections, and any disclosures provided by the seller regarding known defects or issues with the property.
Governing Law
The contract typically specifies the laws of South Australia that govern the agreement.
It’s important to understand that a residential contract of sale is a legally binding document, and its terms should be carefully reviewed by all parties involved. It’s advisable to have your contract reviewed by one of our conveyancers before your sign or at least during your cooling off period to ensure that the contract adequately protects your rights and interests.
Cooling off period when buying residential real estate In South Australia
As we have mentioned, it is important to know that if you are purchasing a property at auction in South Australia, there is no cooling off period.
However, if you are buying property by private treaty this means you are purchasing a property through a negotiated sale between you and the seller, without the involvement of an auction.
The cooling-off period is a timeframe during which the buyer has the option to withdraw from the contract without incurring significant penalties or forfeiting their deposit. In South Australia, the cooling-off period is set at two full business days.
During this period, the buyer has the opportunity to undertake further inspections, obtain legal advice, or reassess their decision to purchase the property. It provides a safety net for buyers who may have made an impulsive decision or discovered unforeseen issues after signing the contract. However, it is important to note that the cooling-off period does not apply in certain circumstances, such as when the property was purchased at auction as we mentioned earlier, or when the buyer has waived their cooling-off rights.
To exercise their cooling-off rights, the buyer must provide a written notice of termination to the seller or their representative within the specified cooling-off period. If you decide to exercise your cooling off rights, you must provide written notice to the vendor or their real estate agent before the cooling off period expires. This notice can be given in person, by email, fax, or registered post, depending on the terms specified in the contract.
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Frequently asked questions
What to Check at Pre settlement Inspection: A Quick Checklist
If you are purchasing a property in South Australia for the first time and you have purchased a property interstate beforehand, you may be familiar with the concept of a pre settlement inspection. This usually occurs a few days before settlement and is a chance for the purchaser to confirm that the condition of the property they are about to settle upon is as it was inspected and with the same inclusions contained in the Contract of sale.
The pre settlement inspection gives the purchaser the opportunity to examine things like:
- Electricals – checking the doorbell, fans, light fittings, exhaust fans, heating units and air conditioning
- Appliances – making sure they are all operational e.g., dishwasher, oven, rangehood, cooktop
- Garden – making sure that the property has been maintained between contract and settlement
- Fixtures – turn on every tap and make sure they work for both hot and cold water, check the toilets and ensure they flush properly, check the washing machine taps
- Curtains and blinds – making sure that if they were included in the contract of sale, they are still at the property
- Doors and windows – checking that keys and locks work properly
- Check that rubbish bins are present and that they are in good condition
- Checking that the hot water system, gas meter, pool pump, smoke detectors and pool pumps are operational
As we said, while pre-settlement inspections are common in some states they are not in South Australia. If you specifically require a pre-settlement inspection, this can be considered for inclusion as a special condition when you sign the Contract of Sale.
What is e-conveyancing?
E-conveyancing is the process of conducting property conveyancing transactions electronically. It involves the use of digital technology to transfer documents including the property title and other legal documents between parties involved in a property sale or purchase. At the moment the main platform providers operating in Australia are PEXA and Sympli.
The main aim of e-conveyancing is to simplify and streamline the process of property conveyancing work by reducing the need for manual paperwork and increasing the efficiency of communication between parties. E-conveyancing platforms enable real-time access to relevant property information, including land titles, mortgage details, and other legal documents.
E-conveyancing is currently being implemented in several countries around the world, not just Australia. It is used also in New Zealand, and Singapore. It offers several benefits, including faster processing times, reduced errors and costs, improved security, and increased transparency in property transactions. E-conveyancing was mandated in South Australia in August 2020, driven largely by the global pandemic which saw the closure of face to face settlement operations.
Can the vendor and the purchaser use the same conveyancer?
In most cases, it is not recommended for a vendor and purchaser to use the same conveyancer, as this can create a potential conflict of interest. A conveyancer’s primary responsibility is to their client, and they are required to act in their client’s best interests at all times. If a conveyancer is representing both the vendor and the purchaser, they may not be able to provide impartial advice to both parties.
However, in some situations, such as a family transfer or where both parties are known to each other and agree to the arrangement, it may be possible for a vendor and purchaser to use the same conveyancer. In these cases, the conveyancer must disclose the potential conflict of interest to both parties and obtain their informed consent.
So, while it is possible for a vendor and purchaser to use the same conveyancer in certain situations, it is generally not recommended. Engaging separate conveyancers ensures that each party has an advocate who is acting solely in their best interests and can provide impartial advice throughout the transaction.
How long does the conveyancing process take?
The length of the conveyancing process in South Australia can vary depending on a variety of factors, including the complexity of the transaction, the efficiency of the conveyancers involved, and any potential legal or financial issues that may arise during the process.
Typically, the conveyancing process can take anywhere from 6-12 weeks to complete. This timeframe includes the time required for searches and checks to be conducted on the property, the preparation of legal documents, and the exchange of funds between the prospective home buyer and seller.
However, the process can sometimes take longer if there are any unexpected legal or financial issues that arise, such as disputes over property boundaries or outstanding debts on the property. In these cases, the conveyancers may need to take additional time to resolve the issues before the transaction can be completed.
Overall, it is important to allow enough time for the conveyancing process when buying or selling a property in South Australia, to ensure that everything runs smoothly and to avoid any potential delays or issues. Engaging an experienced and efficient conveyancer can also help to speed up the process and ensure that the transaction is completed as quickly and efficiently as possible.
