You have decided that you wish to buy a property. What do you do? Where do you go? Who do you ask? This guide steps you through the buying process, in particular the offer, the agreement for sale and purchase, conditions, title, confirmation, forms of ownership, the Property (Relationships) Act 1976 and what happens after the contract is confirmed.
Starting the Process
Once you have decided that you wish to buy a property the next step is to make an offer. If the property is being marketed by a real estate agent the agent will prepare an offer on your behalf and, after signature by you, present it to the seller. If there is no agent then it is normal for the buyer’s lawyer to prepare the offer.
Before you make an offer, you must decide on the following:
- The price to be offered (“purchase price”).
- How much the deposit will be (normally between 5% and 10% of the purchase price)?
- The settlement/possession date (the day you pay the purchase price and take possession and ownership of the property).
- Chattels/furniture to be included (you need to stipulate all chattels/furniture that you expect to receive as part of the purchase price).
- Conditions to be included (see below).
The Agreement for Sale and Purchase
The form of agreement for sale and purchase commonly used is a form jointly prepared between the Real Estate Institute of New Zealand and the Auckland District Law Society commonly called the “ADLS 8th Edition”. This contains the terms of your offer to the seller. When you sign, it is an offer by you to the seller to buy the property on the terms set out. Once accepted by the seller it is a legally binding contract which neither party can withdraw from unless the conditions contained therein have not been satisfied or, in certain circumstances, when the seller is in breach.
When considering making an offer you need to decide whether you should include special conditions or not. The real estate agent or your lawyer can help you with these. Common conditions are:
- Your solicitor approving title
- You obtaining satisfactory finance
- You obtaining a satisfactory LIM
- You obtaining other satisfactory reports such as a building or valuation report
- You selling your existing home
The conditions will have to be satisfied within a certain time period. It is the buyer’s obligation to take all reasonable steps to ensure that they have satisfied those conditions within that time period. If a buyer does not take such reasonable steps to satisfy such conditions then the buyer may not be able to withdraw from the contract if those conditions are not satisfied and could, in fact, be in breach of contract. You should discuss these matters with your lawyer.
Your lawyer will search the title and provide you with a copy. Your lawyer will advise you about any legal issues that arise in relation to the title. You will need to satisfy yourself that the diagram on the title shows the land as you viewed it. If there are encumbrances on the title (such as easements or land covenants), your lawyer will need your confirmation that you are prepared to proceed subject to those encumbrances. There are other considerations in relation to leasehold titles, cross-lease titles, unit titles and company share flats (see FAQs). You will need to discuss these with your lawyer.
On, or before, the date for confirming the conditions you will need to discuss with your lawyer whether those conditions have been satisfied. If they have, the contract should be confirmed. Your lawyer will advise the seller’s lawyer and the real estate agent, if any, that the conditions are confirmed. Once that confirmation is given the contract is binding on both parties and enforceable by both parties.
Form of ownership
There are points to consider when deciding how you should own a property. Here are some of the options:
- Joint ownership – this is where two or more individuals own the property. On the death of one party, the property passes to the survivor/s, irrespective of any provisions in a Will. You may not want this to happen, especially if you are in a subsequent relationship as it would mean children of a prior relationship will not inherit their parent’s share in the property.
- Tenants in common – this means you own a specified share in the property, either in equal or unequal shares. You can leave your share in the property to beneficiaries named in your Will.
- Joint Family Home – designed to give some protection to a spouse and children from business debts of the other spouse. This is only available to married couples.
- Family Trust – can protect a major asset against creditors and other risks, and also provides an effective estate planning tool.
- LAQC – an ownership structure often used for rental properties.
If you make unequal contributions to the purchase price it would be advisable to record the details in a Property Sharing Agreement. You should talk to your lawyer about this.
Property (Relationships) Act
Another important issue to consider is the possible impact of the Property (Relationships) Act. The provisions of the Act apply to all relationships in the nature of a marriage. In relationships that last for 3 years property will generally be divided equally on separation. Remember, you do not have to be living together for three years under the same roof for the Act to apply. This may affect you if you are in a relationship and own or are buying a property in your sole name or in unequal shares. If that is the case you need a written Property Agreement with your partner.
Individuals are also at risk if they commence a relationship after buying a property. If that relationship lasts 3 years, the property may become ‘relationship property’ and be divided equally on separation. Single people should seriously consider a Family Trust owning their property to protect against this risk. If a relationship commences subsequent to purchase, you need a Property Agreement with your new partner to protect you.
Once the contract has been confirmed your lawyer will attend to the legal documentation, including any loan documentation and securities, to enable settlement to take place and possession to pass on the settlement date. You will need to attend to the practical aspects such as:
- Moving home
- Houseowner’s insurance
- Arranging service providers such as power, gas and telephone
- Advising people, authorities and organisation of your new address
- Booking a removal company.
Your lawyer will provide you with a statement setting out the amount required from you to complete the purchase, including legal costs and any other expenses. You will need to see your lawyer prior to the settlement date to sign any required documents and arrange payment of the amount required from you.
The ADLS 8th Edition form of the agreement provides that the buyer may inspect the property before the day of settlement to ensure that the property is still in the same condition as it was when it you first inspected and that there are no missing or damaged chattels. If there is a problem you need to notify your lawyer immediately.
Your lawyer will ask your lender for your loan advance and will ask you for any cash contribution due from you. On settlement, your lawyer will pay over the settlement figure to the seller’s lawyer. You are entitled to vacant possession of the property as soon as the monies have been paid over. Your lawyer will also finalise transfer of title of the property to you.
After settlement, the local Council and QVNZ are notified of the change of ownership.
Local Authority Rates
On settlement, local authority rates are apportioned between the seller and buyer. As most rates are payable by instalment it is a good idea for you to check when the next instalment is due just in case the next instalment notice is forwarded to the seller and not passed on to you.
After settlement, your lawyer will provide you with a full report setting out the details of the transaction.