Property transactions in Australia are not fundamentally different from property transactions in China, they are all about signing a property transaction contract and executing the contract. The buyer pays and the house is registered for transfer from the seller to the buyer. However, there are significant differences in the legal procedures, principles and systems of housing transactions between the two countries. Australian lawyers are deeply involved in the entire property transaction process, which has a profound effect on the establishment and implementation of the entire property legal process in Australia. In the normal Chinese property purchase and sale process, there is often no lawyer involved, so Australian Chinese property dealers will be interested in the reasons you need a lawyer and if it is a must to have one during the real estate transaction.
Does Australian law require a lawyer to buy or sell property?
Some clients may ask if there is a law in Australia that requires them to have a lawyer in a property sale. But there really is no such specific legal provision. Australia is a common law country that relies on the court鈥檚 jurisprudence to establish legal principles. Many conventional legal practices have no written legal system or regulations.The system or regulations are binding. At the same time, common law countries enforce the law in accordance with their legal principles based on jurisprudence, protecting the rights of individual freedom, and are less likely to compel anyone to use professional legal services. There is no legal requirement to see a doctor when one is ill (one can diagnose and treat oneself), or prosecution requiring a lawyer (it's perfectly possible to defend yourself), but the vast majority of people will still see a doctor when sick, and criminal cases will require help from lawyers. The reason for this is that there is a need for professionals to handle professional matters, and thesame goes for buying and selling property in Australia.
The complexity of the land transfer process in Australian dictates the need for professionals to handle the legal process. Australia was earlier a colony in England, from which it inherited the tradition of the English common law system. As a long-established capitalist state, the protection of private ownership of property is central to British law. The legal protection of private rights, developed from feudal society, is based on the principle of the inviolability of private ownership of land. The core concept has been continuously developed and improved. As a capitalist country that inherited the English common law system, Australia's land ownership system has evolved over the last hundred years and has been complete and sound. This soundness also brings with it the complexity and specialization of the legal process of land transfer, resulting in the legal legislation on land transfer. The system is complex and also influenced by common law jurisprudenc, coupled with the fact that each state government in Australia has its own independent judicial system and legal requirements. This results in a large, cumbersome, detailed and specialized system of land law, which means that persons without specialized legal training will find it difficult to fully understand the terminology, systems, procedures, and deals involved in the entire law of buying and selling Australian property. Even young lawyers who have just graduated from law school and have not been practicing can hardly understand and control the entire real estate buying and selling law, making it even harder for ordinary people with no legal training.
At the same time, if you insist on handling the legal procedures of the real estate transaction yourself (as far as I know, no real estate trader has yet to do so), due to a lack of understanding of the laws and regulations, in addition to the legal risk that you may be held liable for violating the procedures and may be punished by the other party's lawyer for taking advantage of the loopholes, failing to cooperate with the other party's lawyer or a third party's request to complete the procedures may also result the failure of the transaction.
If my English is good enough, does it mean that I don't need a lawyer to handle real estate transactions?
Many Chinese dealers that buy Australian property may say that because they don't speak English, they need an Australian lawyer to deal with the relevant legal matters. The implication being that if I'm good at English, I can handle it myself. This is very wrong. While good English is necessary in dealing with conveyancing legal proceedings, it's not enough. It is not possible to deal with the legal process without knowledge and training in law. Due to the complexities of the Australian legal system as described, even native born English speakers find it difficult to navigate the legal processes involved in landed property. The need to hire a lawyer to handle the transfer is necessary, just as much as a Chinese client who is fluent in Chinese needs a professional lawyer when it comes to legal matters. It is not possible that you don't need the services of a lawyer just because you are good at Chinese. Therefore, in the conveyancing process in Australia, both parties need their own lawyers to handle the property, whether they speak English or not.
In summary, Australian law does not mandate the legal services of a solicitor in a property transaction, but due to the complexity of the Australian legal system, it can be difficult to obtain the services of a solicitor. A good command of the English language is necessary but it's not enough to handle procedures related to the vast legal proceedings in real estate transactions. The risks of handling the trading procedure yourself are dire, which is why it is important to have a lawyer with professional legal education and training in legal practices to ensure that the trading process goes smoothly.
This article is contributed by Juwai Columnist Wang Fei.
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