Hooray! You just bought or sold a property and signed the contract! Everyone is looking forward to the day of settlement. Sellers are anticipating their funds to hit their bank account, home buyers want to move in, investors are waiting to start work on the property, agents and brokers are eager to get paid… and everyone assumes that settlement will happen on that day. Truth be told, settlement delays are more common than you think, even when there’s a legally binding contract in place.
Here are some of the common issues that may cause a settlement delay and our proposed solutions:
Pre-settlement final inspection disputes and property defects
Often, we receive calls from distressed buyers who have found issues during the final inspection that they want the vendor to address before settlement. When an agreement cannot be reached, things can escalate.
Solution: For purchasers, obtain a contract review from a conveyancer or lawyer to understand your rights before signing the contract. To minimise future disputes, ensure that any negotiated terms are written as special conditions in the contract and signed by both parties. Avoid scheduling the final inspection too close to the settlement date to allow time to resolve any disputes.
Lender not ready
Once you’ve signed a contract, if you are a purchaser needing a loan to fund your purchase, you will need to sign loan documents with the lender. If you are a vendor and need to discharge the loan on the property, you must fill out the discharge form and send it to the bank. Banks usually require around two weeks to assess the documents and prepare for settlement. Late document returns or complex loans can cause delays.
Solution: Ensure documents are returned promptly. Regularly check with the lender to ensure no outstanding requirements are pending.
Shortfall funds not cleared in time for settlement
Sometimes the lender for a buyer may not provide full funds, requiring the buyer to contribute their own funds. If these funds are not transferred and cleared in time, settlement will be delayed.
Solution: Maintain open communication with your conveyancer, lawyer, and broker to know how much you need to contribute. Arrange funds early rather than waiting until it’s too close to settlement.
Failure of another separate settlement that is linked to the current settlement
It is quite common for a party to conduct a sale and purchase at the same time. That party may be selling their home and using those proceeds to fund the purchase of their new home. The settlement process can happen simultaneously and when it does, issues and delays from one matter can have a flow on effect to other settlements.
Solution: If possible, avoid back-to-back settlements. If simultaneous settlements are necessary, communicate with your conveyancer, lawyer, broker, and agent to ensure everyone is aligned with your plan. Have contingency plans in place.
Missing documents before settlement
While conveyancing in Victoria is almost entirely paperless, certain original documents are still required before settlement. Missing documents, such as original paper titles or power of attorney, can cause delays.
Solution: Communicate with your conveyancer or lawyer early to ensure all necessary documents are ready for settlement. Discuss any missing documents and the next steps.
Missing verification of identity
To prevent fraudulent transactions, your conveyancer or lawyer needs to know that it is you that’s completing the transaction and not someone else completing it on your behalf. They are required by law to complete an identity check on you and if it’s not completed in accordance with the requirements before settlement, they cannot proceed to settlement for you.
Solution: Complete the identity verification early. Your conveyancer or lawyer will remind you if they have not received your identity documents. If verification is difficult (e.g., for individuals overseas or with capacity issues), communicate with your conveyancer or lawyer to find a tailored solution.
Missing ATO clearance certificate
The vendor is required to supply a copy of the ATO clearance certificate before settlement if the purchase price is equal to or greater than $750,000.00. If the clearance certificate is not supplied before settlement, the purchaser is required to withhold 12.5% of the price and pay it to ATO at settlement. Sometimes the vendor requires the fund to settle and without the certificate, settlement may get delayed.
Solution: If you are a vendor, your conveyancer or lawyer would remind you to apply for the certificate once the contract is signed and ask you to send it to them once received. If you are a buyer, your conveyancer or lawyer would safeguard the process and let you know if any issues may occur before settlement.
Settlement statement issues
As part of the conveyancing process both sides of the transaction must prepare a settlement statement and statement of adjustments. There may be delays in finalising this document or a dispute may arise about it’s accuracy. This can lead to delays.
Solution: If you are a purchaser, your conveyancer should ensure all required searches and enquiries are made with the relevant authorities well before settlement. This is to ensure the settlement statement and statement of adjustments can be prepared well ahead of settlement. If you are a vendor your conveyancer should confirm and verify the information quickly. Where there is a rental property there are additional considerations and you must ensure they are attended to (read more here).
Other legal disputes that involves the property
Sometimes properties can be involved in other legal disputes that are not known to the purchaser. For example, there could be an ongoing separation matter where the court may make an order for certain amount of money from the sale to be paid to the vendor’s (ex)-partner, or it could involve a death where the executors of a will is required to obtain further documents in order to complete the sale. These things take time and could grossly affect the settlement date if the con-current events are not being taken into consideration.
Solution: Keep communication open between all parties: you, your conveyancer, lawyer, and the agent. If any issues arise, plan the next steps early on to avoid last minute distress.
It’s stressful when things don’t go according to plan. There are ways to mitigate the likelihood of settlement delays, even though we cannot eliminate the possibility entirely. At Provey, we have a well-developed system where documents are crosschecked, key dates are monitored with reminders, events are diarised and followed up, and a diverse team is ready to back you up as soon as things get complicated. Buying and selling a property is stressful and it is a huge life event. Let us look after you so you can sail all the way to settlement stress free!