Contracts for the Sale and Purchase of Land…..Check them

 

It is not uncommon for an agent to be provided with a Contract for the Sale and Purchase of Land and to trust that the contract provided has all of the necessary documentation contained within. Unfortunately this may not always be the case. It is an offence for an Agent to advertise property for sale without a complete contract.

While it may pose an issue for your agency with NSW Fair Trading, it can also call into question the validity of the contract agreed to by the purchaser and could potentially lead to a rescission of that contract.

The Conveyancing Act 1919 states that it is against the law for residential land to be advertised without a contract containing the required documentation:

66R PREPARATION OF PROPOSED CONTRACT FOR SALE OF LAND

A six-month transitional period means COVID-19 impacted tenants who accrued rent arrears between 15 April 2020 and 26 March 2021 (the moratorium period) will not be subject to the standard tenancy eviction rules for those arrears.

1. A vendor who, by a written or broadcast advertisement:
   a) indicates that residential property is for sale or is to be auctioned at any future time, or
   b) offers to sell residential property, or
   c) invites an offer to purchase residential property, or
   d) offers to grant an option to purchase residential property, or
   e) invites an offer to take an option to purchase residential property,
   is guilty of an offence unless the required documents are all available for inspection at the same place by any purchaser.
   Maximum penalty – 10 penalty units
2. For the purposes of this section, the required documents are:
   a) a copy of the proposed contract for the sale of the property (excluding particulars of the purchaser and purchase price), and
   b) the documents required by section 52A to be attached to the contract before signature by the purchaser, and
   c) in the case of an offer or invitation relating to an option–a copy of the proposed option document (excluding particulars of the purchaser and consideration for the option), and
   d) in the case of an off the plan contract–a copy of the proposed disclosure statement.
3. This section applies to sales by way of private treaty, auction or tender (including tender by post).

To be certain you have done all that you can to ensure the purchase and sale are a smooth and binding transaction, it pays to go through the contract prior to advertising and ensuring that all documents are where they are supposed to be.

The Conveyancing (Sale of Land) Regulations 2017, Schedule 1, sets out the documents that are required:

1. A planning certificate for the land unless the land is not within a local government area, commonly referred to as the 10.7 certificate
2. Diagrams from a recognised sewerage authority (if available from the authority in the ordinary course of administration) that purport to show the following:
   (a) the location of any sewer lines on the land upstream of the point of connection to the authority’s sewer main (including the point of connection),
   (b) the location of the authority’s sewerage infrastructure for the property downstream of the point of connection to the authority’s sewer main (including the point of connection).
3. If the contract relates to land:
   (a) a property certificate, and
   (b) a copy of a plan for the land issued by the Registrar-General (except in the case of land that is the subject of a limited folio).
4. Copies of all deeds, dealings and other instruments that are lodged with the Registrar-General:
   (a) easements,
   (b) profits à prendre,
   (c) restrictions on the use of land,
   (d) positive covenants imposed under Division 4 of Part 6 of the Conveyancing Act 1919 .

When dealing with land that is strata, community title or leasehold property, there are a subsequent list of documents that also need to be added to the contract. As you can see, it is not a very long list of documents that need to be added and not at all outside of the knowledge base of the agent to be able to check their inclusion.

Double checking your contracts could mean the difference between a valid sale and a valid rescission.