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When it comes to property law, most people are intimidated by the piles of complex paperwork and don’t know where to start or who to trust.
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At InFocus Legal, our role is to simplify the legalities of your property transaction while ensuring you have maximum legal protection.
We do this so you can confidently sign on the dotted line, reassured that everything is covered and the deal is sealed to your advantage.
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I decided to use InFocus Legal on a friend’s recommendation and it was honestly the best experience that I’ve had yet. They kept me informed, the service was efficient, they were professional and very considerate of my circumstances. I had a five star experience and I will definitely recommend InFocus Legal to all my friends.
InFocus Legal has assisted us with several legal matters over the last few years and we’ve always found them to be extremely professional and responsive to our needs. If you’re looking for a team of experienced, down to earth and approachable lawyers then I’d definitely recommend getting in contact them.
InFocus dealt with my matter with minimum effort from me. Everything was taken care of and they made it all happen in a very smooth and professional approach. Thank you and I will go back to you for all my future legal needs.
Dorian, thank you for the fantastic service we’ve received. You were always available for us and your advice gave us the assurance that our matter was being handled professionally, accurately and efficiently. What a pleasant experience!
I am impressed with the efficiency and professionalism of Anthony who helped me with the settlement of my property.
The team at InFocus Legal have provided exceptional service, their communication and commitment is second to none. Highly recommended. Thank you Rita and Dorian!
Many thanks to Dorian for all the support he provided in the process of settling my property. Was really informative and his team kept me in the loop throughout the entire process. It made everything stress-free for me…. Thanks guys!
Provided a genuine interest in my matter and was very transparent throughout the process. Dorian was professional during our dealings and was consistently available and willing to provide strategic and proactive legal solutions to my matter.
Very Professional and efficient team. They have been responding to all my questions and I am very pleased to have worked with Dorian and the team. It has been great to know that I can always rely on InFocus Legal to ensure that all legalities are dealt with professional and swiftly.
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A property deal is no small transaction. It feels larger than life. It’s stressful. A lot of money is at stake.
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Buying by private treaty
A common way to buy a house or apartment in NSW is by private treaty. This is where a seller advertises the amount they would like to achieve for their property and then negotiates with prospective buyers. The contract for sale becomes activated once you exchange contracts with the seller. At this time, you will also have to pay the full deposit on your place (usually 10 per cent minus any holding deposit you have paid).
However, this does not always mean you are locked in.
The standard contract for sale includes a “cooling off” period during which you can change your mind. However, your solicitor can have this waived by signing a certificate and explaining the contract to you.
Buying at auction
Auctions can sometimes seem daunting; not least because there is no cooling off period. If the gavel comes down and you are the highest bidder you are usually bound to go through with the purchase, no matter how unfair the contract might be.
So long as you have your solicitor look over the contract for sale before you bid there is no reason an auction needs to be any riskier than buying by private treaty.
Before the auction, your solicitor will identify any terms that might not be in your favour and negotiate with the vendor’s solicitor to change them. They will also make sure you are buying exactly what you intended and that it is in the condition you expect.
That way if your bid is the winning one, you can be sure the contract you sign will be in your interest.
Buying an apartment or townhouse
Most apartments and townhouses in NSW are strata title, which means you are not only buying real estate, you are also buying into the rights and obligations of being a member of the owners corporation (or body corporate).
Being a member of the owners corporation means you will have a say on issues affecting the building, but it also means you will need to pay strata levies and the way you can use your property will be restricted by by-laws. By-laws are rules that try to make sure the strata scheme runs smoothly and that your building is generally a harmonious place to live. By-laws often cover issues such as parking restrictions, the keeping of pets and the use of common property.
You may also need to contribute money for communal issues, such as plumbing, roof and window repair and property maintenance, even when you are not directly affected.
Because this can affect the value of what you are buying, it is important you get a full picture of the owners corporation’s activities before you buy and that you know exactly what work is planned and whether there’s enough money to cover it. Obtaining a report on the records of the owners corporation can provide useful insights into the financial position of the owners corporation, and particular issues that have emerged in the running of the owners corporation. Your solicitor can organise such a report.
While a seller must attach some information about the owners corporation to the contract for sale, your solicitor will make sure you have everything you need to reach an informed decision before you buy.
The pros and cons of buying “off the plan”
Builders often raise capital for their development by selling units or townhouses before they are built. This can be a great way for buyers to get a reduced price and even make a capital gain before settlement.
However, it is not risk free. After all, the property market can move down as well as up, so you could end up losing money.
There is also a chance you may not end up with what you intended. For instance, a Sydney investor recently bought an apartment off the plan after the agent promised 180-degree water views. When the complex was finished, the buyer found a wall obstructed his view altogether. He argued that the contract for sale was void and asked for his deposit back. The builders refused.
The buyer took his case to the NSW Court of Appeal, which ruled in his favour. It found that he had relied on the agent’s misrepresentation when deciding to buy, so the contract was void. It ordered the builders to return the buyer’s deposit.
Changes to the law made in 2015 and 2019 make it harder for developers to rescind (get out of) off the plan contracts, but there are still considerable risks in buying something yet to be built, with finishes and inclusions yet to be added. Off the plan contracts have a 10 business day cooling off period because of the complexity of these types of contracts, giving purchasers more time to seek legal advice.
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The contract for sale
When you buy a property in NSW your rights depend, in large part, on what is in the contract for sale. However, there are some things a contract for sale must do, including properly identifying the property as well as the terms on which it is being sold. It should also attach a number of documents, the most common of which are:
- A zoning certificate
- A drainage diagram showing any sewer lines
- A copy of the property certificate
- A copy of the plan for the land
- Copies of any documents showing easements (the right of someone else to cross or use the land), rights of way, restrictions, covenants etc.
- Certificate of compliance or non-compliance for any swimming pool
- Certificate showing whether or not land tax is owing on the property.
Sellers of strata title properties (generally units or townhouses) should also have attached:
- A copy of the property certificate for the common property and strata plan
- A copy of the by-laws for the strata scheme.
When first meeting with your solicitor, do not be surprised if your solicitor asks you to bring along identity documentation such as your passport, birth certificate, driver’s licence, marriage certificate etc. Under NSW laws, your solicitor will likely need to verify your identity and take copies of your identity documentation for your file. The documentation will also be needed for Commonwealth reporting requirements.
Buying on your terms
Many of the terms in any contract for sale will be standard, which means they have been in use for a long time and are fair to both seller and buyer.
However, a seller does not have to include these terms and instead may choose to include something in the contract which favours themselves at a buyer’s expense. That is why the first thing your solicitor will do is make sure the contract for sale is not just legal, but that it also is not unfair.
Where a clause is not in your interests, your solicitor will negotiate with the seller’s solicitor to get it changed. This includes working out a time to settle the sale, which is when you will pay the balance owing and take ownership of the property.
Should you pay for inspections?
Because you are expected to take the property “as you find it”, that means you will also sign up to any structural problems, pest infestations or other defects that might not be obvious to the naked eye. That is why it is always best to have someone who knows what they are doing look over the property. After all, you may be paying a few hundred dollars up front to save yourself thousands, or even tens of thousands of dollars down the track.
The real estate agent may be able to tell you if any inspection reports have already been prepared in respect of the property. But you should be aware of who they were provided for and any other limitations or disclaimers which may reduce your ability to rely on such a report.
Your solicitor should also check whether the contract includes:
- A survey
- A building certificate
- A homeowner’s warranty insurance certificate for any renovations done on the property
If you are buying at auction it is important that you have any pest and building inspections carried out before the auction. Once the hammer comes down it is unlikely you will be able to get out of the contract.
What is included in the sale?
Unless the contract specifically says otherwise, the property will be sold “in the state you find it”. That also means any fixtures are automatically included.
A fixture is anything that cannot easily be taken away without doing damage to the property. For instance, stoves are usually fixtures because they are wired in, whereas fridges are not because they only need to be unplugged. Sometimes a seller will attempt to exclude a fixture from a contract for sale. At other times, what constitutes a fixture isn’t so clear cut, for instance, removable floor coverings or an above ground pool.
Where anything is in doubt, it should be expressly included in the contract for sale. Your solicitor will help make sure you know everything that is included in the sale.
Your mortgage documents
To buy a property most people will need to take out a mortgage. A mortgage gives a lender rights over the land for which they are lending money, including the option of selling it if you default.
A solicitor can help you make sense of what your obligations are under the mortgage, including whether you will be penalised for refinancing or paying out your loan early.
Types of ownership
When you buy a property with another person, there is usually two ways you can choose to own it.
Most couples choose to buy as Joint Tenants, which means they own the whole property jointly and if one person dies the other is immediately entitled to the whole property (regardless of what any will might say).
Business partners or people not closely related usually choose to buy as Tenants in Common, which means they each own a specified share in the property. That share can then be passed on or sold to anyone and can be left in a will.
What is exchange?
A contract to sell a property becomes binding when the buyer and seller each sign a copy of the contract for sale and exchange them. At exchange, the buyer also usually hands over a deposit (often 10 per cent).
At an auction, exchange happens immediately after the winning bid is accepted. For private treaty sales, exchange usually means you will deliver your signed contract to the seller’s agent and pick up the seller’s signed copy. Sometimes a seller will be happy to exchange contracts by mail, in which case the seller’s signed contract will be delivered to your solicitor. In all cases, a formal exchange of the contracts is done by either the seller’s agent or the seller’s solicitor.
Signing the contract is not always final
Sometimes you will be able to get out of the contract for sale and get your deposit back, even when you have signed the contract for sale (and that includes when you have bought a property at auction).
For instance, sellers must always comply with the “vendor disclosure requirements and warranties”. These rules require anyone selling a property to let prospective buyers know certain information about the property they are selling in the contract for sale. This includes making promises about the property and attaching certificates that reveal such things as any rights of way, drainage and zoning.
Your solicitor will be able to tell you if the seller has not complied with these obligations and whether you will be able to recover your money and pull out of the contract.
The first home owners grant
If you are buying your first home, you may be entitled to a little help from the government. For more information visit the Revenue NSW.
Duty and other tax
In NSW, the purchase of property is taxed. This tax takes the form of duty, which is calculated based on the price of the property. Usually you will need to pay this duty at or before settlement. However, your obligation to pay is sometimes waived if you are a first home buyer or if you are buying a newly constructed home. For more information visit the Revenue NSW.
If a property is not purely residential in its nature, the sale may incur GST. Investment properties can also be subject to Land Tax. It is important your solicitor goes through the contract for sale to make sure the cost of these taxes it is not unfairly passed onto you as the buyer.
What happens behind the scenes?
While you are getting ready to move into your new house, your solicitor will be working so that everything proceeds smoothly to settlement. To make sure the seller has not left something out of the contract, they will be carrying out enquires about the property with the local council and government departments.
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What exactly are you buying?
Technically, owning a property means having “title” to it. From a practical point of view, this means once you have bought your name will appear on the Certificate of Title (sometimes known as the title deed). Because most land in NSW operates under Torrens Title, your solicitor will register a transfer at NSW Land Registry Services so everyone knows you are now the owner.
Generally, when you buy a house or apartment in NSW you get one of the following:
- Freehold, which gives you ownership over the land and the buildings on that land
- Leasehold, which means you have ownership of the land and the buildings on it for a certain period of time (often 99 years)
- Strata title, which usually applies to apartments or town houses and gives you the rights to the internal part of your unit
- Company title, which is a less common way of apartment ownership. You buy shares in a company and this in turn entitles you to the use of an apartment
- Community title, which often works in combination with strata title on large developments and gives you rights – along with other owners – to common land.
What happens at settlement?
When you sign the contract you will usually agree to a settlement day. Most commonly this will be six weeks after the date of exchange.
At settlement, you will need to pay the seller everything you owe them to settle the purchase of your home. This amount will take into account any utility bill, strata levies and tax calculations that your solicitor makes.
If you cannot settle by the date stipulated in the contract for sale, you are likely to be charged interest. In some circumstances, the seller may even be able to cancel the sale and keep your deposit (and sue you for any additional losses).
You should let your solicitor know as soon as possible if it looks like you cannot make the settlement date so they can attempt to come to an arrangement with the seller’s solicitor.
Do you need to be present at settlement?
You do not usually need to attend settlement in person and most settlements now take place electronically.
Your solicitor and the seller’s solicitor will make sure they have everything they need for the sale to go ahead. If you are taking out a mortgage to pay for the property, a representative of your bank (as well as the seller’s bank) will also be involved in the settlement.
Once settlement happens, your solicitor will call you to let you know you are the proud owner of a new home.
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The contract for sale
The first thing you need to do if you are selling your house or apartment is to prepare a contract for sale. Putting your house on the market without having a proper contract is an offence under NSW law and could lead to you being fined.
What do I need to include in the contract for sale?
The law says that all sellers must include certain information in the contract for sale and must also make certain promises (known legally as ‘warranties’) about the property they are selling. These obligations are known as the Vendor Disclosure Requirements.
The most common documents you may need to include with the contract are:
- A zoning certificate. This is issued by local council and shows planning controls and other things which may affect the property, such as any proposed road widening
- A drainage diagram. This shows the location of any sewer lines
- A title search confirming that you own the property
- Copies of any documents creating easements, rights of way, restrictions or covenants
- Certificate of compliance or non-compliance for any swimming pool
- Certificate showing whether or not land tax is owing on the property.
You should also talk to your solicitor about whether you should include:
- An identification survey
- A building certificate, and
- A homeowner’s warranty insurance certificate.
What if I am selling a strata title property?
Most apartments in NSW are strata title. If you are selling a strata title property, you will also need to include:
- A copy of the property certificate for the lot and common property
- A copy of the strata plan showing the lot
- A copy of the by-laws affecting for the strata scheme.
- You should also let your solicitor know if any special levies have been levied or are likely to be levied.
What warranties am I deemed to have made about the property?
Unless the contract for sale includes specific information that says otherwise, by putting your property on the market you are deemed to have made a number of promises about it. These include:
- That the land is not subject to any ‘adverse affectation’ (essentially government proposals that might affect the land)
- That there is no sewer on the land that is not shown in the drainage diagram
- That the zoning certificate gives an accurate picture of the zoning of the land at the date of the contract
What happens if the contract doesn’t comply?
If you do not comply with the Vendor Disclosure Requirements and there turns out to be a problem with the property, the buyer may be able to cancel the contract for sale, in which case you will also have to return their deposit. This could be very serious if you have already bought a new home.
Should I use standard or tailored terms in the contract?
Many of the terms in any contract for sale will be standard, which means they have been in use for a long time and are generally considered to be fair to both the seller and the buyer. You don’t necessarily have to include all of these standard terms in your contract, especially if they do not reflect your needs or the property you’re selling.
Your solicitor will make sure that the contract for sale doesn’t only meet the legal requirements, but that it is also in your best interests. That said, it is likely any buyer will want to negotiate some of the terms on which they’re buying. For instance, if they are also selling a home, they may want a longer or shorter settlement period than normal.
Alternatively, they may want to make sure certain items, such as the blinds, are included as ‘fixtures’.
Your solicitor will continue to negotiate with the buyer’s solicitor to make sure that you still sell on your terms. This will include working out a time to ‘settle’ the sale, which is when you will be paid the balance owing.
Selling by private treaty vs selling by auction
Many properties in NSW are sold by private treaty. This is where you advertise the amount you would like to achieve for your property and then negotiate the final price with any prospective buyers.
If you choose to sell by auction, the contract will not include a ‘cooling off’ period. Instead, if the property is ‘on the market’ (i.e. your reserve has been met) and the hammer comes down, the winning bidder is bound to go through with their purchase (unless, of course, there is a serious problem with the contract for sale).
How does a ‘cooling off’ period work?
A cooling off period gives a buyer the chance to consider whether they really want to enter the contract once the emotion of making an offer has subsided (it also gives them the chance to carry out any building and pest inspections before the contract is final).
Potential buyers will usually only forfeit 0.25 per cent of the purchase price if they pull out during the cooling off period.
You can ask the buyer to waive the cooling off period, especially if they have a solicitor acting for them and have done their searches and inspections.
What’s included in the sale?
Unless the contract specifically says otherwise the property is sold ‘in the state it’s found’. That also means any ‘fixtures’ are automatically included.
A fixture is anything that cannot easily be taken away without doing damage to the property. For instance, stoves are usually fixtures because they are wired in, whereas fridges are not because they only need to be unplugged. Sometimes you may be able to exclude a fixture from the contract for sale. At other times, what constitutes a fixture isn’t so clear cut (e.g. removable floor coverings or an above-ground pool) and this can lead to a dispute between you and the buyer.
Where anything is in doubt, it should be expressly included in the contract for sale.
When first meeting with your solicitor, do not be surprised if your solicitor asks you to bring along identity documentation such as your passport, birth certificate, driver’s licence, marriage certificate etc. Under NSW laws, your solicitor will likely need to verify your identity and take copies of your identity documentation for your file.
One cost you should factor in to the sale is the agent’s commission. It is usually a good idea to shop around and compare commission rates of various agents as well as the services being provided. Agents are required by law to give you a written guide to their fees, commissions and expenses before you sign an agreement with them. You should have your solicitor review the agent’s agreement before you sign it.
What is exchange?
A contract to sell a property becomes binding when the buyer and seller sign their copy of the contract for sale and then ‘exchange’ them. At exchange, the buyer also usually hands over a deposit (usually 10 per cent). At an auction, exchange happens immediately after the winning bid is accepted. If the property is not sold at auction, your solicitor or agent will usually effect contract exchange by delivering your signed contract to the buyer and collecting the buyer’s signed copy as well as the deposit.
However, it is not unusual to exchange contracts by mail or even email.
Often after exchange, if the parties direct, your real estate agent will invest the deposit in an interest bearing account until settlement (your solicitor may do this if you do not have an agent). When the sale is finalised any interest earned on the deposit will then usually be split equally between you and the buyer.
Duty, GST and CGT
In NSW, only buyers have to pay duty on a property transaction. However, there may be other taxes you will need to pay, particularly if you are selling an investment property.
GST does not generally apply to the sale of residential property. But you will be liable for GST if the property you are selling has a commercial use (and in some other limited circumstances). The sale of new residential premises and potential residential land may be subject to the GST withholding requirements. Where it applies, the purchaser withholds an amount from the contract price and pays that amount to the Australian Taxation Office.
Unless you purchased the property before 1985, the sale of an investment property will usually attract Capital Gains Tax (CGT).
However, you do not usually have to pay CGT on the sale of your own home. That said, the law of CGT is complex so you should see your solicitor if you are in any doubt about whether or not you will need to pay CGT.
If the price of the property is $750,000 or more, and you are an Australian resident, you will need to provide the purchaser with a clearance certificate from the Australian Taxation Office. Your solicitor can help you comply with this requirement if it applies. If you do not provide the clearance certificate, under the foreign resident capital gains withholding regime your purchaser will be required to forward one-tenth of the purchase price to the Australian Taxation Office.
What happens if a buyer wants to get in early?
Sometimes a buyer will want to occupy the property before settlement, especially if they have already sold their home. The standard contract for sale has a clause governing this scenario. It says that the buyer will have to pay you an occupation fee, creating a licence which runs until settlement date. It also says that the buyer must take out insurance and cannot make structural changes. Any adjustments to utility bills, taxes etc should also take into account the date of occupation.
Because risk ultimately rests with the seller, you should never let a potential buyer take possession of your house before settlement until you have consulted your solicitor. An alternative to early occupation may be to bring the settlement date forward.
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What happens at settlement?
When you sign the contract you will usually agree to a settlement day.
Most commonly this will be six weeks after the date of exchange.
At settlement the buyer pays you everything they owe you to ‘settle’ the purchase. This amount will take into account any utility bills and strata levies you have already paid as well as any tax calculations that your solicitor makes. If the buyer cannot settle by the date stipulated in the contract for sale, you’re often entitled to charge interest. In some limited circumstances, you may even be able to cancel the sale.
If you owe money on the home you are selling, your solicitor will talk to your bank or building society to work out exactly how much you need to pay to ‘discharge’ the mortgage. They will let the buyer know this amount so that they can make out a bank cheque to your lender.
They will also tell the buyer who you’d like the balance to be paid to.
Do I need to be present at settlement?
You do not usually need to attend settlement in person.
Instead, your solicitor and the buyer’s solicitor will meet to make sure they have everything they need for the sale to go ahead. If you have a mortgage over the property you are selling, a representative of your bank or building society will also attend settlement to receive any money owing on your loan. In some cases, settlement may occur electronically rather than a physical settlement.
Buying and selling at the same time
Chances are you may be looking to buy a new house at the same time as you are selling your current one. In that case, it is important that you try to make sure the settlement date in both contracts is the same.
If the settlement date on the contract for the house you are buying falls before the settlement date on the contract for the house you are selling, you may need to take out expensive ‘bridging finance’. If it is the other way around you may be forced to live with friends or family until you can move in.
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1. Choosing the cheapest or most expensive option
A low or high price does not always mean better. The most expensive solicitor is considered to be the ones who can handle matters better than other options. Yet this is not always the case and there are more affordable solicitors who can provide you with more attention and better results.
A cheaper conveyancer is not always preferable because they could be less experienced with fewer specialties and may be cutting corners or costs to reduce conveyancing fees. The price should not outweigh the personality, expertise or qualifications of a conveyancing solicitor.
2. Choosing a solicitor from out of the area
While it is common for people to want to purchase or sell property that is not in NSW, every state has its own conveyancing process. Undoubtedly, local solicitors who are familiar with the local legislative requirements and typical procedures can be a huge advantage.
However, there are solicitors who have experience with interstate conveyancing matters and can still assist you.
3. Picking a solicitor who does not specialise in the area of law where you need help
Some solicitors try to focus on many types of cases. They might handle a couple of family law cases, do some business law on the side, and throw in some estate planning all at once. The saying ‘jack of all trades, master of none’ certainly applies to legal matters.
Solicitors who are well-versed in one to two practice areas have a deeper understanding of the field and years of experience to back up their knowledge. Lawyers who take on too many practice areas may have a lack of expertise in your specific kind of law. They cannot give their full attention to the nuances of your case, and that puts you at a disadvantage especially given all the processes involved in a property conveyance.
4. Settling for a solicitor who does not really listen to you
Often, conveyancing solicitors do what they think is best for your matter but do not listen to what you want. This results in a lot of unnecessary stress and possible extra costs. And, ultimately, you might not get the best outcome. You need a solicitor who will listen to you and work with you. Choose a conveyancing solicitor who makes you feel comfortable, understands your goals, and communicates with you on a regular basis.
5. Not considering your solicitor’s personality
When it comes to finding the right solicitor, personality might be the last thing on your mind. But it is often one of the most important considerations.
Make sure that your personality meshes with your conveyancing solicitor. If your solicitor has a different mindset or approach, you may be out of sync. This can lead to a disconnect in both communication and trust further down the road.
6. Working with an attorney who does not care about your matter
Find a law firm that values you as a person and not as a revenue source. You should be more than a number or a case file to your solicitor. If they do not value you, it will be reflected in the quality of their work and the care you receive.
Conveyancing solicitors who care about you keep your best interests at heart. They will also be more likely to provide better customer service. They will respond more quickly to your inquiries, provide you with updates as soon as they receive them, and go above and beyond to help you achieve the best outcome.
7. Thinking you have to stick with a solicitor
If you have already chosen a solicitor, you might find yourself wrestling with the sunk costs. You have invested so much in your lawyer that cutting ties can feel like a waste. You are also familiar with your solicitor, so they may feel like the safer option.
But if your solicitor is not providing the care, customer service, and expertise you need, you should not have to stick with them. You have other options. You can always change solicitors if you want. You might receive better results from another solicitor, and those results will far outweigh the stress and cost of changing lawyers.
8. Trying to save money by not hiring a solicitor at all
While it is tempting to try to save some money by handling your conveyancer without help. Unfortunately, many people make mistakes when they do so given the various administrative procedures and legal documents involved. Not only do these mistakes complicate your settlement, but they also cost you more money in the long run.
It is difficult to resolve these problems once they happen, and you will have to pay solicitor fees to repair the damage caused. By not having representation, you spend more money than you would have spent hiring an experienced conveyancing solicitor at the beginning.