My last article relating to franchising issues ended with a latin maxim known to many, “caveat emptor” (let the buyer beware”).
That maxim applies equally to residential conveyancing, notwithstanding the fruitless lengths government seems to want to take to protect us from the dangers inherent in the industry (i.e. human nature).
The landscape upon which residential conveyancing is conducted has changed dramatically in recent years, and even more so with the most recent amendments to the Property Agents & Motor Dealers Act.
Conveyancing of residential properties was once considered a relatively simple transaction, however by governmental interference, it can now be a somewhat complex matter.
A brief discussion with any knowledgeable Real Estate Agent or Legal Practitioner should rapidly discourage anyone who thinks they can properly “do it yourself”, as the minefield now extends well beyond the limits of contract law into the realms of regulation for appeasement only.
Solicitors are being urged “with severe financial consequences in the event of a claim” to implement the Queensland Conveyancing Protocol, which is endorsed by the Queensland Law Society.
The immediate result is a large increase in cost for each transaction, coupled with more paperwork than most clients would care to be faced with, much of it unnecessary and incapable of providing the protection the government believed was necessary.
That protection can only really be provided by timely and accurate professional advice.
There are only 2 forms of Residential Contract recommended by the Real Estate Institute of Queensland and the Queensland Law Society, however there are other versions used widely by Agents, and that variation may also increase the costs involved in those particular dealings.
Other legislative changes raised by the unfair contract provisions contained in the Trade Practices Amendment (Australian Consumer Law) Act, have resulted in some changes to the REIQ/Law Society recommended version of the Contracts.
The requirements of the Conveyancing Protocol are, in some instances, excessive and unncessary, however this is probably due to the nature of government these days to legislate for the “lowest common denominator”, i.e. people who will not look after their own best interests.
For example, on a sale of a residential property that you have owned for many years and about which you know everything (having retained all relevant records), the Protocol requires your solicitor to at least consider conducting a number of searches to prove what you already know.
Whilst it is acknowledged that there are a number of sellers out there who do not have full details of their property (perhaps because of a failure to conduct all proper enquiries when purchasing the property or because of a failure to maintain proper records), the searches conducted will in most cases only be performed after the Contract has been entered.
Effectively, that is too late for a seller to find out that they have made certain warranties, by signing the Contract, which are untrue.
So I end this article with the same message as the last - caveat emptor - notwithstanding it has, with a series of paternalistic legislative changes, become a little redundant.
Nowadays, all parties involved in a transaction, including the Real Estate Agents, Lawyers and consultants, must be the ones who beware, indeed all except perhaps the financiers, to whose tune we all (including the government) dance.