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November 12, 2020

Legal Advice Regarding Property Settlements and Covid-19

The legal industryโ€™s professional insurer has advised that Covid-19 is not a reason to suspend rights under the contract, so settlements have to proceed unless the seller and buyer agree to extend the date or the affected party terminates the contract.

๐—œ๐—™ ๐—ง๐—›๐—˜ ๐—ฆ๐—˜๐—ง๐—ง๐—Ÿ๐—˜๐— ๐—˜๐—ก๐—ง ๐—ฅ๐—ข๐—ข๐— ๐—ฆ ๐—–๐—Ÿ๐—ข๐—ฆ๐—˜
There is growing evidence that the settlement rooms may close and that paper settlements will be delayed for an unknown period or contracts could possibly be terminated.

๐—ง๐—›๐—˜ ๐—Ÿ๐—˜๐—š๐—”๐—Ÿ ๐—ฆ๐—˜๐—ง๐—ง๐—Ÿ๐—˜๐— ๐—˜๐—ก๐—ง ๐—”๐—Ÿ๐—ง๐—˜๐—ฅ๐—ก๐—”๐—ง๐—œ๐—ฉ๐—˜
Under the contract a PEXA Electronic Settlement is the only viable alternative because no face-to-face contact is required. They are mandatory in most of Australia but not in Queensland.

The only way to ensure settlement will occur is to have a condition in the contract making Electronic Settlements the only option. The special condition to be inserted in your contract is:

๐—ฆ๐—ฝ๐—ฒ๐—ฐ๐—ถ๐—ฎ๐—น ๐—–๐—ผ๐—ป๐—ฑ๐—ถ๐˜๐—ถ๐—ผ๐—ป
It is an essential term of this contract that completion shall occur by way of an Electronic Settlement using the ELNO system operated by PEXA and in that regard the parties agree that an affirmative notice by each of them under condition 11.1(1) of the contract herein shall be deemed to have been given. It is agreed that in condition 11.5(2)(b) the following is deleted โ€œor suspension of their access to the ELNO systemโ€

With people working remotely itโ€™s going to take the banks longer to turnaround. Some valuers and inspectors may even stop working placing demand on those remaining. Therefore, we think that the following should apply:
โ€ข Building and pest 14 days
โ€ข Finance 21 days
โ€ข Settlement 42 days

๐—œ๐—ง ๐—œ๐—ฆ ๐—ง๐—›๐—˜๐—ฅ๐—˜๐—™๐—ข๐—ฅ๐—˜ ๐—ฉ๐—˜๐—ฅ๐—ฌ ๐—œ๐— ๐—ฃ๐—ข๐—ฅ๐—ง๐—”๐—ก๐—ง in the current uncertain climate that you only refer to conveyancers who actively use PEXA or your clients only use conveyancers who actively use PEXA.

As one of the few PEXA Certified Members, Monkey Conveyancing has been settling electronically through PEXA since early 2019.

Presently only 10% of settlements are electronic and many firms do not have a PEXA capability. We can act as their paid agents in the PEXA workspace, at a more than reasonable fee which is offered in good faith, under these trying circumstances. The settlement agent in our office will not be the file manager. Should these firms wish to take up this offer they should contact us for details.

Please feel free to contact our firm if you have any questions. We are here to help make business continue as normally as possible. (๐Ÿฌ๐Ÿณ) ๐Ÿฏ๐Ÿฐ๐Ÿฎ๐Ÿฌ ๐Ÿฏ๐Ÿฒ๐Ÿต๐Ÿต

(07) 3420 3699 โ€“