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Conveyancing

WA

A complete matter management solution for practitioners running a busy conveyancing practice in Western Australia.

2 Matter Plans

Overview

The Sale and Purchase of Real Property matter plans cover all the common and less frequent issues that arise in conveyancing matters. Each step of the transaction is outlined in sequential order, with all required precedents conveniently located, along with links to the relevant sections of the comprehensive commentaries.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • A full suite of letters to:
    • clients;
    • real estate agents; and
    • mortgagees.
  • Library of further terms;
  • Library of other agreements, deeds, and contracts;
  • Option agreement and notices.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Sale of Real Property (WA)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Electronic Signing and Witnessing
    • Item icon Looking to the Future
    • Item icon A Brief Explanation of the Transition to E-Conveyancing
    • Item icon 1001 Costs Answers
    • Item icon Business Structures and the Comparative Table
    • Item icon Further information
  • Item icon Overview
    The purpose of a conveyancing transaction is to transfer the title and use of real property from one party to another. The process is not adversarial but is necessarily investigative. Usually, it is a time of relief for the seller and excited anticipation for the buyer. Although the goal is simple ...

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  • Item icon Summary of the process
    The usual steps in conducting a sale of real property matter include the following:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Sale of real property
    • Item icon To do list - Sale of real property
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Folder icon Verifying identity and client authorisation
      • Item icon Verification of identity in electronic conveyancing transactions
      • Item icon Client authorisation
        A client authorisation enables the client to authorise a solicitor or conveyancer to act on their behalf for an electronic transaction. Although it operates in a similar way to a power of attorney, a properly completed client authorisation is not a power of attorney: s 11 of the Electronic ...

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      • Folder icon Library of identity and authorisation forms - WA
        • Item icon Verification of identity certificate
        • Item icon Client authorisation
        • Item icon Identifier declaration
        • Item icon Identity agent certification
        • Item icon Australian Embassy/High Commission/Consulate certification form
    • Item icon Retainer instructions - Sale of real property
    • Item icon Privacy collection notice
    • Item icon Conflict of interest check
    • Item icon Initial letter to client with costs disclosure - Sale of real property
    • Item icon Notice in relation to residual current devices and hard wired smoke alarms
    • Item icon LINKS TO - Fact Sheet - Legal Costs - Your right to know - Law Society of WA
    • Item icon Smoke alarms in dwellings for sale, rent or hire – Government of Western Australia
    • Item icon RCD safety switches – Government of Western Australia
    • Item icon Costs agreement - WA
    • Item icon Scope of work - Sale of real property
    • Item icon LINKS TO - ATO GST withholding online forms
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Folder icon If required - Settlement agent
      • Item icon Appointment of Settlement Agent
      • Item icon Settlement agent costs disclosure
    • Folder icon If required - Selling without an agent
      • Item icon Initial letter to client selling without agent
      • Item icon Precontractual disclosure statement to the buyer
      • Item icon Notice in relation to residual current devices and hard wired smoke alarms
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Confidentiality deed
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Mediation agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
  • Folder icon B. Initial considerations
    • Folder icon If required - Acting for both parties
      • Item icon Letter to client acknowledging we act for both parties
    • Folder icon If required - Power of attorney for land
      • Item icon Powers of attorney for land transactions
        Section 143 of the Transfer of Land Act 1893 enables a proprietor to appoint an attorney to deal with the land, and requires the power to be filed with the Registrar of Titles. For a power of attorney instrument filed within 3 months after the date it was executed, the registrar may ...

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      • Item icon General power of attorney
      • Item icon Enduring Power of Attorney with Acceptance
      • Item icon Enduring power of attorney coversheet
      • Folder icon Library of clauses for power of attorney
        • Item icon Company appoint attorney to conduct the business of the company
        • Item icon Access to will
        • Item icon Company appoint attorney to execute documents
        • Item icon Director appointing substitute during absence
        • Item icon Discharge of mortgage
        • Item icon Purchase of real property
        • Item icon Mortgage
        • Item icon Sale of real property
        • Item icon Application for probate or administration - Executor out of jurisdiction
    • Folder icon Foreign resident capital gains withholding payment
      • Item icon Foreign resident capital gains withholding payments
      • Item icon Letter to client regarding foreign resident capital gains withholding payment
      • Item icon Foreign resident capital gains withholding clearance certificate application
      • Item icon Foreign resident capital gains withholding purchaser payment notification
      • Item icon Foreign resident capital gains withholding rate variation application
    • Item icon Withholding payment of GST on purchase of certain real property
    • Item icon Letter to client regarding GST withholding payment
  • Folder icon C. Contract
    • Item icon Forming the contract
      Most contracts in Western Australia are prepared by real estate agents using the Real Estate Institute of Western Australia standard form contract and annexures. General conditions for the sale of land are incorporated into that contract and govern the conveyancing transaction. See Form of ...

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    • Item icon Signing the contract
      Electronic signatures The Electronic Transactions Act 1999 (Cth) confirms that electronic signatures are equivalent to traditional hardcopy signatures. Specifically, it provides that a legal requirement for a manual signature can be satisfied with an electronic signature if a reliable method is in ...

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    • Item icon Deposit
      Payment of the deposit A deposit typically is payable within 7 days from the date the seller signs the contract. The parties may agree to other arrangements. Time is of the essence.

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    • Folder icon If required - Release of deposit
      • Item icon Letter to other side’s solicitor requesting release of deposit
      • Item icon Letter to other side’s solicitor requesting authorisation of release of deposit
      • Item icon Letter to agent requesting release of deposit
      • Item icon Letter to client advising buyer has agreed to release the deposit
    • Item icon Form of contract
      Sale of land Land is sold through an offer and acceptance process where a proposed buyer will make an offer to purchase to the seller and the seller then accepts, declines, or responds with a counteroffer.

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    • Item icon Private property sale packs – REIWA Shop
    • Item icon Disclosure obligations
      Agents and sales representatives Ascertaining, verifying, and communicating material facts is a direct requirement under reg 24 of the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016. Before a client signs a contract, an agent must:

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    • Item icon Precontractual disclosure statement to the buyer
    • Item icon Parties
      In completing the party’s information in a contract:

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    • Item icon Property
      Identification The need to identify the property is easily overlooked. It seems inconceivable that a contract can relate to a property other than the one inspected by the buyer, but it happens.

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    • Item icon Inclusions
      Inclusions are often an area of dispute. All inclusions need to be stated, and any items a buyer could expect to be included but are not must be shown as exclusions. Disputes typically arise over items like birdbaths, dishwashers, large entrance pots, cubby houses, and old property nameplates. In ...

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    • Item icon General conditions
      The Contract for Sale of Land or Strata Title by Offer and Acceptance (the Offer and Acceptance) and Joint Form of General Conditions for the Sale of Land (the General Conditions) are designed to avoid any alterations and additions. However, practitioners need to consider whether additional or ...

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    • Item icon Special conditions
      Special conditions can cover matters including:

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    • Item icon Standard special conditions
    • Folder icon Library of special conditions
      • Item icon Foreign resident capital gains withholding
      • Item icon Building report - Completion subject to satisfactory report
      • Item icon Building - Completion subject to major domestic building work
      • Item icon Confidentiality - Buyer
      • Item icon Contamination - Buyer accept any contaminant
      • Item icon Contamination - Buyer accepts named contaminant
      • Item icon Covenant - To produce for inclusion in conveyance
      • Item icon Documents - Attached
      • Item icon Defects liability - Minor defects period
      • Item icon Deposit - Bond issued to seller
      • Item icon Deposit - Exchange on less than 10 per cent
      • Item icon Deposit - Investment in interest bearing trust account
      • Item icon Deposit - Release for use by seller as deposit or transfer duty
      • Item icon Development - Seller will facilitate buyers proposed development
      • Item icon Development application - Seller to consent following exchange
      • Item icon Early settlement - Discount for
      • Item icon Early settlement - Discount for - Time critical to seller
      • Item icon Executor - Seller executor and not yet registered proprietor
      • Item icon Executor - Seller executor and not yet registered proprietor - Electronic settlement
      • Item icon Finance - Completion subject to - Extensive
      • Item icon Finance - Completion subject to - Named lender
      • Item icon Finance - Completion subject to - Concise
      • Item icon Foreign buyer - Completion subject to FIRB approval
      • Item icon Foreign buyer - Warranty regarding foreign person status
      • Item icon GST - Apportionment of price - Agreed values
      • Item icon GST - Apportionment of price - Valuation required
      • Item icon GST - Farm land supplied for farming
      • Item icon GST - Included in price margin scheme applies no input tax credit
      • Item icon GST - Payable by buyer in addition to price
      • Item icon GST withholding - Residential premises or potential residential land
      • Item icon Guarantee - Corporate buyer
      • Item icon Interdependent - Completion subject to purchase by seller
      • Item icon Interdependent - Completion subject to sale by buyer
      • Item icon Interdependent contracts
      • Item icon Interest to run from expiry of notice to complete
      • Item icon Outstanding notice - Buyer will comply
      • Item icon Passing of risk - Changing time
      • Item icon Pest report - Completion subject to satisfactory report
      • Item icon PPSA - Release of security interest
      • Item icon PPSA - Undertaking by secured party to register release of security interest
      • Item icon Plant equipment - Value included in sale
      • Item icon Possession - Buyer enters before completion
      • Item icon Possession - Seller stays on after completion - Licence agreement
      • Item icon Possession - Seller stays on after completion - Residential lease
      • Item icon Price - Apportionment of price between land and construction
      • Item icon Property - Identity of the land
      • Item icon References to statutes
      • Item icon Registration - Time for registration of plan
      • Item icon Release and indemnity - General
      • Item icon Repair - Completion subject to
      • Item icon Reports and approvals - Assignment of
      • Item icon Rural - Special conditions
      • Item icon Severability
      • Item icon Sewer - Responsibility to connect to
      • Item icon Solar panels
      • Item icon Terms contract - Special condition
      • Item icon Transfer by direction
      • Item icon Trustee sale - Liability limited to indemnity
      • Item icon Unapproved works - Disclosure of
      • Item icon Use - Buyer to be satisfied as to use
      • Item icon Use - No warranty as to use
      • Item icon Whole agreement
      • Item icon Waiver of breach
    • Item icon Tax
      Goods and services tax The contract must make it clear if goods and services tax (GST) is payable by the buyer and whether it is included in the price.

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    • Item icon Foreign resident capital gains withholding payments
    • Item icon Withholding payment of GST on purchase of certain real property
    • Item icon GST residential withholding - Supplier notification
    • Item icon Other considerations
      Selling Crown land The Land Administration Act 1997 allows for the granting and administration of the following leases of Crown land:

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    • Folder icon If required - Pastoral lease
      • Item icon Selling Crown land
        The Land Administration Act 1997 allows for the granting and administration of the following leases of Crown land:

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      • Item icon Letter to government department requesting ministerial consent
    • Folder icon If required - Possession under licence
      • Item icon Possession before settlement
        If a seller agrees to possession before settlement, the contract can provide for the buyer to assume the risk of the property from the date of possession, or the seller can enter into a collateral agreement in relation to that possession. This means the buyer must insure the property from the date ...

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      • Item icon Licence agreement - Possession before completion
      • Item icon Licence agreement - Seller retains possession after completion
    • Folder icon Library of other contracts, deeds, and agreements
      • Item icon Contract for sale and lease of manufactured home - Seller is lessor
      • Item icon Contract for sale and lease of manufactured home - Seller is not lessor
      • Item icon Contract for sale of shares of a company owning property
      • Item icon Conveyance of old system property
      • Item icon Contract for sale of personal property
      • Item icon Declaration of trust for purchase by trustee
      • Item icon Declaration of trust for a buyer
      • Item icon Deed of novation
      • Item icon Granny flat agreement as contemplated by Services Australia
      • Item icon Licence agreement - Possession before completion
      • Item icon Licence agreement - Seller retains possession after completion
      • Item icon Partition agreement
      • Item icon Sharefarming agreement
      • Item icon Standard annexure note for documents
    • Folder icon If required - Selling without an agent
      • Item icon Letter to client to arrange appointment to sign contract and bring loan number
      • Item icon Letter to other side’s solicitor returning signed contract
  • Folder icon D. Mid transaction
    • Item icon Letter to client confirming contract is unconditional with prearranged telephone appointments
    • Item icon Letter to client confirming contract is unconditional without prearranged telephone appointments
    • Item icon Caveats
      Buyer’s caveat after contract Following Black v Garnock [2007] HCA 31, some lawyers commonly lodge a caveat after execution and before settlement. Practitioners need to advise their clients of the risks of not lodging a caveat and seek instructions.

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    • Item icon TitleWatch
      A client who elects not to lodge a caveat can subscribe to Landgate’s notification service, TitleWatch, which notifies subscribers via email when an action is detected on a certificate of title; for example, a caveat lodged over a title during the contract period.

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    • Item icon Discharge of encumbrances
      It is standard procedure for the seller’s practitioner to write to mortgagees and caveators to arrange the discharge of their mortgages and caveats, except a buyer’s caveat, so settlement can proceed.

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    • Item icon Letter to discharging mortgagee requesting discharge
    • Item icon Letter to caveator requesting withdrawal of caveat
    • Item icon Insurance and risk
      The common law held that risk passed on sale and that while the seller was in the position of a trustee for the buyer during the contract period, the risk of any deterioration to the property during that period fell on the buyer. Clause 8.1 of the Joint Form of General Conditions for the Sale ...

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    • Folder icon If required - Outstanding land tax
      • Item icon Letter to client advising land tax is payable
    • Folder icon If required - Off the plan
      • Item icon Letter to other side’s solicitor requesting extension to sunset period
      • Item icon Letter to other side’s solicitor advising plan registered
    • Folder icon If required - Strata
      • Item icon Letter to strata manager requesting s 110 certificate
    • Folder icon Foreign resident capital gains withholding payment
      • Item icon Foreign resident capital gains withholding payments
      • Item icon Letter to client regarding foreign resident capital gains withholding payment
      • Item icon Foreign resident capital gains withholding clearance certificate application
      • Item icon Foreign resident capital gains withholding rate variation application
      • Item icon Letter to other side’s solicitor enclosing foreign resident capital gains clearance certificate or rate variation
    • Item icon Withholding payment of GST on purchase of certain real property
    • Item icon GST residential withholding - Supplier notification
  • Folder icon E. If required - Claims, disputes, and notices
    • Item icon Error or misdescription
      Clause 15.1 of the General Conditions defines an error or misdescription of the property. At general law, an error or misdescription arises where the buyer is not receiving substantially what was agreed to be sold. Clause 15 applies if there is an error or misdescription relating to:

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    • Item icon Deterioration
      A contract for the sale of land is an executory contract, meaning the parties effect the contract at a later time. In contrast, a contract for the sale of an ice cream is completed at the time the agreement is made. The delay in a sale of land creates the possibility of a change to the contract’s ...

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    • Item icon Disputes
      Disputes between sellers and buyers often occur over:

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    • Item icon Notices
      Notices generally Land ownership requires the owner to have relationships with many other people and organisations; for example, neighbours, local councils, and other authorities. As a result, these third parties can take a particular interest in the property or send a notice to the owner with ...

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    • Folder icon Library of notices
      • Item icon Notice to perform
      • Item icon Notice of rescission generally
      • Item icon Notice of termination
      • Item icon Notice to complete
      • Item icon Letter to other side serving notice
      • Item icon Letter to other side's solicitor serving notice
      • Item icon Letter to other side's solicitor disputing notice to complete
      • Item icon Letter to other side’s solicitor responding to letter disputing notice to complete
      • Folder icon Rescission - Sunset clause
        • Item icon Notice of rescission by seller for want of registration of plan
        • Item icon Consent of buyer to rescission for want of registration of plan
        • Item icon Letter to other side serving rescission notice for want of registration of plan
        • Item icon Letter to other side’s solicitor serving rescission notice for want of registration of plan
      • Item icon Deed of mutual rescission of contract
  • Folder icon F. Through to settlement
    • Item icon Electronic conveyancing
      Electronic conveyancing is now the standard settlement process in Western Australia. A Brief Explanation of the Transition to E-conveyancing, available in the Reference Materials folder on the matter plan, includes information on how to get connected and the full timeline for implementation.

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    • Item icon Certificate of title
      Duplicate, or paper, certificates of title were abolished on 7 August 2023 by the Transfer of Land Amendment Act 2022 and are no longer in use. Landgate holds the one true copy of each certificate of title in a digital format. A record of certificate of title can be ordered from Landgate.

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    • Folder icon Client authorisation
      • Item icon Client authorisation
    • Item icon Adjustments
      Adjustments are undertaken towards the end of a conveyancing transaction and put into effect at settlement when the buyer pays the balance of the purchase price to the seller and becomes entitled to the property. Property ownership involves paying outgoings, including rates, and receiving income, ...

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    • Item icon Settlement Statement
    • Item icon Letter to other side’s solicitor with direction to pay
    • Item icon Settlement process
      Clause 3 of the Joint Form of General Conditions for the Sale of Land (the General Conditions) sets out the settlement process. If settlement is taking place electronically, clause 3.12 sets out the processes applicable. To some extent, a conveyancing transaction culminates in settlement ...

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    • Item icon Letter to agent notifying date and time of settlement
    • Item icon Letter to client with settlement figures and invoice
    • Item icon Example invoice incorporating notification of client's rights - WA
    • Item icon Invoice recital - Sale of real property
    • Item icon Pre-settlement letter to Vendor (Prompt)
    • Folder icon If required - Deposit required for settlement and tenant direction
      • Item icon Letter to agent advising deposit required at settlement
      • Item icon Letter to other side’s solicitor when deposit required at settlement
      • Item icon Attornment letter to tenant - Rental payment direction
    • Folder icon If required - Paper transactions
      • Item icon Certificate of title
        Duplicate, or paper, certificates of title were abolished on 7 August 2023 by the Transfer of Land Amendment Act 2022 and are no longer in use. Landgate holds the one true copy of each certificate of title in a digital format. A record of certificate of title can be ordered from Landgate.

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      • Item icon Request to accept paper lodgment
      • Item icon Adjustments
        Adjustments are undertaken towards the end of a conveyancing transaction and put into effect at settlement when the buyer pays the balance of the purchase price to the seller and becomes entitled to the property. Property ownership involves paying outgoings, including rates, and receiving income, ...

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      • Item icon Settlement Statement
      • Item icon Letter to other side’s solicitor with direction to pay
      • Item icon Settlement process
        Clause 3 of the Joint Form of General Conditions for the Sale of Land (the General Conditions) sets out the settlement process. If settlement is taking place electronically, clause 3.12 sets out the processes applicable. To some extent, a conveyancing transaction culminates in settlement ...

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      • Item icon Letter to agent notifying date and time of settlement
      • Item icon Letter to client with settlement figures and invoice
      • Item icon Settlement instructions - Sale with mortgagee
      • Item icon Settlement instructions - Sale without mortgagee
      • Item icon Letter to law stationer with settlement instructions
  • Folder icon G. Finalising the matter
    • Folder icon If required - Not proceeding
      • Item icon Letter to client when not proceeding - Sale of real property
    • Item icon Settlement and merger
      The common law doctrine of merger grew out of the principle that when a lesser estate was vested in the same person as a greater estate, the lesser estate merged into the greater estate and was extinguished. A common example of this principle is where the dominant and servient tenements in an ...

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    • Item icon Letter to agent confirming settlement and enclosing order on agent
    • Item icon Finalising the matter
      In reporting and accounting to the client it is often difficult for them to understand how rate adjustments work. The precedent Letter to Client Finalising the Matter - Purchase of Real Property goes a long way to explaining the adjustments, although talking through the settlement statement when ...

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    • Item icon Letter to client finalising the matter - Sale of real property
    • Item icon Information sheet for settlement adjustments
    • Item icon Example invoice incorporating notification of client's rights - WA
    • Item icon Invoice recital - Sale of real property
    • Item icon Closing the file
    • Item icon File closing checklist

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