Buying property in Western Australia: lawyer or settlement agent

What the settlement does

Settlement is when the buyer pays the balance of the price, the title passes to the buyer and the buyer usually takes possession.

The person acting for you prepares and lodges the documents to transfer the title.

They check the title, rates and zoning, confirm that inspections and special conditions in the contract are complete, request the funds, keep you informed, and attend settlement for you.

The settlement date is set in the contract. It is usually 30 to 90 days after the contract.

Settlement agents

A settlement agent must hold a licence issued by Consumer Protection WA.

To be licensed, a person must be at least 18, of good character and repute, suitably qualified, have enough financial resources, and understand their duties under the Settlement Agents Act 1981.

Licensed agents must complete continuing professional development each year and follow the Code of conduct for settlement agents.

A person who falsely claims to be a licensed settlement agent faces a heavy penalty.

Lawyers

The Settlement Agents Act 1981 excludes legal practitioners from the need for a licence, when they act in the course of their practice as lawyers.

Consumer Protection WA lists being a certified legal practitioner as one of the two ways to work as a settlement agent in Western Australia. The other is holding a settlement agent licence.

A lawyer can also advise you on the contract and the law, before and after you sign, not only on the settlement.

For whether a lawyer from another state can act on a WA purchase, see our article on whether a NSW lawyer can act on a purchase in another state.

What a settlement agent must give you before you sign

Before you sign the appointment, a settlement agent must give you:

1. A written costs disclosure stating the most it will charge.
2. The Form 1 appointment.
3. A Form 2 disclosure notice, if a conflict of interest may exist.

The agent cannot charge more than the disclosed maximum unless the work changes significantly, you are told in writing and agree, and the extra charge is reasonable.

Statutory costs, such as transfer duty and Landgate search fees, are not included in that maximum.

One agent for both sides

A settlement agent can act for both the buyer and the seller only if both give permission on the appointment form.

Consumer Protection WA recommends choosing an agent who is not also acting for the other party.

You can change agents at any time, though you may have to pay for work already done.

Why the choice matters in WA

There is no cooling-off period for residential property in Western Australia.

Your protection comes from the conditions in the Offer and Acceptance, such as finance and inspection conditions, written in before you sign.

A settlement agent's role is the settlement. If you want advice on the terms before you sign, ask the person you appoint whether that is part of their work.

Common questions