Mortgages

“ 1001 Conveyancing Answers for Queensland Welcome to 1001. This publication will provide you with a complete suite of tools to both understand the conveyancing process and solve problems when they arise. 1001 includes comprehensive information to provide a quick answer to resolve questions and ... ”

“ REFERENCE SERIES ”

“ Recurring outgoings, such as rates and taxes, are adjusted between the parties as at the settlement date. This right/obligation has long been a part of the standard form contract of sale of land and its present incarnation is general condition 15. Whilst requiring apportionment of outgoings ... ”

“ Quality disputes in off the plan contracts often relate to the size of the finished product A summary of the provisions of the Sale of Land Act 1962 that allow for avoidance of off the plan contracts was published in the May 2015 Law Institute Journal. Those provisions only relate to a ... ”

“ Contracts that relate to the sale of land prior to approval of a plan of subdivision are the subject of ss 9 and 10 of the Sale of Land Act. Whilst not specifically defined as such, Off the Plan contracts are referred to as ‘prescribed contracts’ s 9AA(7). Section 9AA ”

“ Property law has been the subject of three legislative pronouncements in 2010, although the changes have tended to tinker around the periphery rather than impose radical change. Act 1 introduced the following changes: ”

“ Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states. By Russell Cocks Published in 2010 ”

“ It is a fundamental principle of contract law that any attempt to penalise a contracting party for breaching that contract will be unenforceable. However the law also recognises a number of exceptions to this principle, notably the entitlement of a vendor of a contract of sale to forfeit the ... ”

“ The Vendor’s Statement required by the seller of real estate pursuant to s 32 of the Sale of Land Act 1962 is a fundamental document in the conveyancing process. Designed as a consumer protection mechanism, the statement requires the vendor to disclose certain items of relevant information to a ... ”

“ A caveat is a document authorised by s 89 Transfer of Land Act 1958 (Vic.) as a means by which a person claiming an interest in the land of another person can record that interest on the title to land owned by that other person. The virtue of a caveat is that it serves to give notice to the world ... ”

“ The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way ... ”

“ The article Caveats - Forcible removal 1 considered the question of removal of caveats from the point of view of a caveator who had a legitimate caveat but was faced with a demand from a third party to provide a withdrawal to allow a dealing to proceed. This article considers removal of caveats ... ”

“ The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way ... ”

“ A lease (as opposed to a licence) undoubtedly creates an interest in land in favour of the tenant. A lease for more than three years may be registered on the title to the land and a lease for any period entitles the tenant to lodge a caveat. Registration of the lease will require production of the ... ”

“ The caveat is the Torrens system’s safety valve. The principle of indefeasibility allows an interest in land, once registered, to effectively destroy competing interests, but the caveat gives a competing interest holder a momentary chance to assert their interest. Unfortunately, caveats are not ... ”

“ The Victorian Court of Appeal has introduced an element of uncertainty into conveyancing settlements that will have property lawyers anxious to adopt the (hopefully) soon to be introduced electronic settlement regime. Settlement Group P/L v Purcell Partners [2013] VSCA 370 conducts a post-mortem ... ”

“ Australian property law in general, and conveyancing in particular, were dominated for two centuries by the common law principle of caveat emptor (let the buyer beware) which gave very little protection to a purchaser against misrepresentations by the vendor. The age of the consumer, which began ... ”

“ Regular readers of this column will note a recent contract-centric emphasis, and this column continues that focus by considering how the standard form contract can, or should, be changed. At the risk of repeating well known law, the standard contract of sale of real estate is not a compulsory ... ”

“ The much anticipated arrival of electronic conveyancing, at least in relation to settlement, is upon us, with PEXA (Property Exchange Australia) providing a platform for firms to engage electronically. The authors of the Law Institute of Victoria contract of sale of land - Murray McCutcheon, David ... ”

“ One of the fundamental concepts in relation to a contract of sale of land is that the contract must be in writing and signed by the parties (or at least ‘the party to be charged’). This requirement can be traced back to the Statute of Frauds of 1677 and can now be found (if you know where to look) ... ”

“ The recently reviewed Contract of Sale of Real Estate published jointly by the Law Institute of Victoria and Real Estate Institute of Victoria establishes 28 general conditions as the fundamental terms of the agreement entered into by the vendor and purchaser. As a contract designed to be used by ... ”

“ Many contracts for the sale of land are subject to the purchaser obtaining approval of a loan. In most cases the purchaser will have undertaken preliminary inquiries in relation to the availability of finance and the application process will be something of a formality and result in an approval. ... ”

“ Umbers v Kelson confirms a silly decision. The case concerned a finance condition in a contract for the sale of a business. The wording in that condition is effectively the same as the wording in the finance clause in the standard contract of sale and so the case has important ramifications for ... ”

“ The Supreme Court has made another decision that, from the point of view of purchasers at least, might be described as ‘tough’. Certainly vendors might view the result favourably, but it is suggested that, on balance, the decision places too high a duty on purchasers before the purchaser is ... ”

“ Prior to the introduction of the 2008 copyright Contract of Sale of Real Estate it was common for a vendor to include a standard form guarantee in a proposed contract and to require directors of a corporate purchaser to personally guarantee the performance of the contract by signing that guarantee ... ”

“ Determining whether negotiations between a vendor and a prospective purchaser have reached the stage where it can be said that a legally binding contract of sale of land has come into existence is a question that often occupies the attention of courts. The legal principles to be applied are rarely ... ”

“ A sub-committee (consisting of Richard Park, Murray McCutcheon, Russell Cocks and David Lloyd)of the Property Committee of the Law Institute has been working on a new form of contract of sale of land that is expected to become available for general use from 30 September 2007. The use of a ... ”

“ The contract of sale of land in common use is not strictly a compulsory document. It is prescribed pursuant to the Estate Agents (Contracts) Regulations 2008, but those regulations only bind estate agents. This means that if an estate agent prepares a contract the prescribed form must be used, but ... ”

“ The prescribed Contract of Sale of Real Estate has now been in use for 12 months. The contract was prescribed pursuant to theEstate Agents (Contracts) Regulations 2008, which came into effect on 28 September 2008. These regulations bind estate agents but not other participants in the conveyancing ... ”

“ The 2008 Contract of Sale of Real Estate was amended in 2012, principally in response to the Personal Property Securities Act 2009(Cth) (the Act). As an indication of the complexity of the Act, it has been decided to make further amendments to the standard contract that again largely address the ... ”

“ It is relatively common for a purchaser of land to want to nominate an additional or substitute purchaser to complete the purchase. Most commonly this arises in a family situation where one spouse or family member has signed the contract and desires to add another spouse or family member or in a ... ”

“ A contract of sale of land essentially involves two parties – the vendor and the purchaser. The common law undoubtedly recognises the right of the named purchaser to nominate an alternative purchaser. Additionally, most standard form contracts (including General Condition 18 of the 2008 prescribed ... ”

“ The law relating to terms contracts has been governed, principally, by the Sale of Land Act 1962 for half a century. Essentially, the Act seeks to protect consumers from unfair contracts and is an early example of consumer protection. Traditionally, a terms contract was created if the purchaser ... ”

“ Terms contracts are relatively rare, but still common enough to create difficulties. In short, they may arise in one of two ways: by payment, where the contract price is spread over a number of payments, in contradistinction to a cash contract that has just two payments, being a deposit at the ... ”

“ Last month I discussed the recent changes to the Sale of Land Act 1962 in relation to terms contracts. I made the point that those changes appear to mean that it is no longer possible to create a terms contract by multiple payments, although it remained possible to create a terms contract by the ... ”

“ The concept of a trust has a long history in the law. Its greatest claim to fame is as a weapon by which the conscience of Equity could master the harshness of the Common Law. Whilst the Common Law might demand that T be regarded as the legal owner of Blackacre, Equity would impose a trust in ... ”

“ The recent decision in Sacks v Klein [2011] VSC 451 considered the well known distinction between joint tenancy and tenancy in common and the impact of the death of a co-owner. It confirmed that whilst co-owners may be registered as joint tenants (legal joint tenants) equity may nevertheless ... ”

“ This column is concerned with two cases on entirely different topics, but connected by a similarity in the name of the principal parties and the fact that they are recent decisions in the Real Property List of VCAT, a jurisdiction that is growing in importance for property lawyers. Pavlovic v ... ”

“ A covenant, in the widest sense, is merely an agreement, or a term or condition of an agreement. Thus contracts include covenants, mortgages include covenants, and leases include covenants. But considered in the context of real estate, covenants have a particular meaning; being agreements that ... ”

“ Property lawyers of a certain vintage have been much influenced by two ‘parks’ and may, from time to time and no doubt due to their vintage, get those parks confused. The first in time and perhaps in memory is Ellenborough Park, a park in London that is the subject of the case cited as Re ... ”

“ Regulation is the life-blood of lawyers, but it is also the bane of their life and that is particularly so when it impacts on common or garden transactions such as conveyancing and leasing. A recent example is the introduction of further Regulations relating to essential safety measures. ... ”

“ The issue of which party, landlord or tenant is responsible for the cost of essential safety measures and associated annual reports in relation to leased commercial premises is causing controversy. Essential safety measures include such services as: ”

“ The law requires us all to do, and not do, a lot of things. Specifically in relation to ownership of real estate, various statutory requirements impose duties on home owners and those engaged in the business of building homes. Indeed, failure to comply with those statutory obligations can result ... ”

“ Conveyancing has traditionally been haunted by three systemic inefficiencies: 1. requisitions and the answers thereto; ”

“ A Supreme Court ruling makes claiming a return of deposits difficult The Supreme Court has made another decision that, from the point of view of purchasers at least, might be described as tough. Certainly vendors might view the result favourably, but it is suggested that, on balance, the decision ... ”

“ Land deposits must be held in trust pending settlement or prior release: s 24 Sale of Land Act. Vendors (and particularly their agents) often seek prior release pursuant to s 27 of the Act. A recent case has raised the possibility that release of the deposit may also have some unexpected ... ”

“ Deposit release is one of the most misunderstood aspects of the conveyancing process. Like most attempts to explain any particular topic, it is best to return to basics to understand what it is that is trying to be achieved. The common law has a rule against penalties. This rule prohibits the ... ”

“ Disputes often arise in conveyancing transactions as the matter approaches settlement and the purchaser is dissatisfied with the condition of the property. These disputes typically arise after the purchaser has conducted the final inspection allowed by Condition 15 and discovered that the property ... ”

“ One of the innovations introduced by the 2008 standard contract of sale was a procedure designed to deal with the problem of deterioration of the property between the day of sale and the proposed settlement date. ”

“ The law is objective – based on principles enunciated in cases and set out in legislation, but clients want subjective answers to their immediate problems. Nowhere is this more evident than the simple legal environment of the common or garden conveyancing transaction. It’s easy for the law to ... ”

“ This column is concerned with two cases on entirely different topics, but connected by a similarity in the name of the principal parties and the fact that they are recent decisions in the Real Property List of VCAT, a jurisdiction that is growing in importance for property lawyers. Pavlovic v ... ”

“ The much anticipated arrival of electronic conveyancing, at least in relation to settlement, is upon us, with PEXA (Property Exchange Australia) providing a platform for firms to engage electronically. The authors of the Law Institute of Victoria (LIV) contract of sale of land - Murray McCutcheon, ... ”

“ Estate agents have always been given a degree of ‘poetic licence’ when it comes to describing the property that they are retained to sell on behalf of a vendor. To describe a property as ‘immaculate’ Walker & Anor v Masillamani & Anor [2007] VSC 172 - or as having ‘perfect presentation’ (Mitchell ... ”

“ Victorian estate agents might be contemplating adopting this famous Dire Straits song as their new anthem after the recent Court of Appeal decision of Icon Property P/L v Wood [2008] VSCA 123, a decision handed down on 26 June 2008. Wood engaged Icon to sell an apartment. A purchaser signed a ... ”

“ GST needs to be at the forefront of every property lawyers mind when dealing with the sale (supply) of real estate. If the transaction relates to ‘residential premises’ then GST does not apply, but it does apply if those ‘residential premises’ are ‘new residential premises’ or are not ‘premises’ ... ”

“ Last month I wrote about owner-builders and suggested that the only issue that causes property lawyers greater concern is GST. Perfectly on cue, changes have been made to the operation of the margin scheme within the GST regime and these changes are bound to cause heartache and pain, particularly ... ”

“ Prior to the introduction of the 2008 copyright Contract of Sale of Real Estate it was common for a vendor to include a standard form guarantee in a proposed contract and to require directors of a corporate purchaser to personally guarantee the performance of the contract by signing that guarantee ... ”

“ Property lawyers do not often hold ‘privileged’ information. All information that comes to a lawyer about a client is confidential and is protected from disclosure by the duty to the client of confidentiality. The concept of legal professional privilege or, as it has come to be known recently, ... ”

“ Land tax is imposed by the state government as a source of revenue. In this respect it is similar to stamp duty or taxes on gambling, and it is undoubtedly an important revenue stream for government. Essentially it is a wealth tax designed to raise revenue from taxpayers who own valuable, ... ”

“ Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states. By Russell Cocks Published in 2011 ”

“ Solicitors have to deal with abandoned goods left on premises in three common situations: in a sale, where the vendor is obliged to give vacant possession; ”

“ Distress is an ancient common law right entitling a landlord, initially, to seize and retain a tenant’s goods if the tenant failed to pay rent. Eventually the right was extended to permit the landlord to sell those goods if the tenant continued to fail to pay the rent. It would be hard to imagine, ... ”

“ The recent case of Xiao v Perpetual Trustee Company Limited and Macquarie Office Management Limited [2008] VSC 412 is a typical ‘David versus Goliath’ scenario, with the outcome complying with biblical expectations. Xiao (the tenant) operated a café/restaurant in the ground floor of a substantial ... ”

“ Section 4(1)(a) of the Retail Leases Act 2003 provides that the Act applies to premises: wholly or predominantly for – ”

“ A lease of land is essentially a contractual relationship between the landlord and tenant. The lease also creates a proprietary interest in the land in favour of the tenant and the tension between contractual and proprietary rights has been reflected in the law relating to termination of the lease ... ”

“ Whilst there is considerable consistency between the property laws of Victoria and New South Wales, there are also significant differences. Some differences in practice are: ”

“ The December 2007 column considered which party to a contract of sale of land, the vendor or the purchaser, is liable for a levy struck prior to the date of the contract in relation to the property sold. This column considers the liability of the parties in respect of a levy or notice ... ”

“ No topic (apart perhaps from GST) causes conveyancing lawyers as much angst as Owner-Builders. The requirement that a vendor who sells a home within ‘the prescribed period’ provide warranty insurance to the purchaser sounds simple enough, but the reality is that solicitors for the vendor regularly ... ”

“ The law has a number of special requirements when a property that is affected by an owners corporation is going to be sold. These requirements can mean that the preparation of the obligatory Vendor’s Disclosure Statement is delayed until an Owners Corporation Certificate is obtained from the ... ”

“ New rules are being considered that will change the present r 27.2 offence of giving a conditional undertaking to an offence of asking for a conditional undertaking. Legal practitioners are under stringent obligations to comply with undertakings that they may give. Specifically rule ... ”

“ Conveyancing is concerned with the transfer of land and improvements from one owner to another. The doctrine of fixtures means that the improvements on the land are considered by the law to be part of the land and therefore a contract for the sale of real estate simpliciter does not involve the ... ”

“ A recent Magistrates' Court case SDC (Vic) Pty Ltd v. Davies and others [2010] VMC 3 has considered an issue relating to the consequences of rescission of a contract of sale of land. Whilst such decisions are not binding on other courts, the fact that they are now reported on AustLII means that ... ”

“ A caveator’s arguments in support of the contract upon which his caveat was based were not well received by the court in the recent case of Damco Nominees P/L v Moxham [2012] VSC 79, with the result that the contract was found to have been terminated. Consequently the caveatable interest based on ... ”

“ Receipt of a rescission notice is often a time of great stress in a conveyancing transaction. Such a notice is issued when a party defaults in performance of a contractual obligation (usually settlement) and gives the defaulting party 14 days to remedy the default. The party issuing the notice is ... ”

“ Victorian Civil and Administrative Tribunal (VCAT) has published an advisory opinion on the interaction between the obligations created in respect of essential safety measures by the Building Regulations 2006 and the landlord’s repair obligations pursuant to s 52 Retail Leases Act 2003. Whilst ... ”

“ A sheriff’s sale is one of the true curiosities of the world of property law - to borrow a phrase, ‘a riddle wrapped up in an enigma’. The urban myth conjures up visions of the dastardly sheriff riding in on his pitch-black steed to wreak havoc on the ‘innocent’ villager. As a recent case ... ”

“ In September 2011 I wrote a column in relation to sheriff sales based on the case of Kousal v Suncorp-Metway Limited [2011] VSC 312. The case exposed the sheriff sales process as flawed and likely to lead to injustice but at that time Mukhtar AsJ. lamented that “the Court can do no more”. In fact ... ”

“ Legal practitioners are licensed to provide legal advice. Estate agents are licensed to sell real estate. Both professions operate, in part, in the real estate industry and at times the distinction between their respective roles may become blurred. Indeed, the 1990s saw a push in Victoria for ... ”

“ Lawyers are not financial advisers but, when acting for a client in a commercial transaction, lawyers will be liable for the advice that they give, or fail to give, in relation to the commercial consequences of the client’s decisions. Two recent Victorian cases have considered the extent of these ... ”

“ Lawyers face difficulties as regards charging costs and/or commission when acting as a lawyer to, and executor of, a deceased estate. Traditionally lawyers practising in all but large city firms would dabble in property law and wills and estates. ”

“ Most property lawyers will also be involved in the administration of deceased estates and, on occasions, may in fact act as the executor of a deceased estate. This is entirely appropriate, as there will always be clients who do not have a close friend or relative who they can appoint to fulfil ... ”

“ Since the Stamps Act morphed into the Duties Act, it is not even correct to refer to the tax imposed on a transfer of land of land as ‘stamp duty’, however old habits die hard and it may take a generation or two to eradicate this habit. There is no particular justification for the government ... ”

“ The case of Clifford v Solid Investments Aust P/L (Solid) has thrown a scare into Victorian developers. Off the plan sales are an important tool for a land or apartment developers. Such sales allow a developer to undertake a development sure in the knowledge that buyers are waiting to complete ... ”

“ The sale of land ‘off the plan’ is a common occurrence in the property market. Its principal virtue is that it provides certainty to both vendor (as to the sale) and purchaser (as to the eventual purchase) of the subject property. Whilst there may be some delay in relation to the eventual ... ”

“ The April 2011 column considered the case of Joseph Street Pty Ltd v Tan, a decision at first instance reported at [2010] VSC 586. The case has now been reversed on appeal, reported at [2012] VSCA 113. ”

“ Many properties are sold ‘off the plan’.  This is the phrase used to describe a property that is a lot on a proposed plan of subdivision, meaning that the plan of subdivision creating the lot has been drawn but it is not yet registered at the Land Titles Office. Historically, it was not ... ”

“ The Owners Corporations Act 2006 took effect on 1 January 2008. In some respects it is a radical change; in others it is just like a holiday – more of the same in a different place. Owners corporations (OCs) are creatures of subdivision. Land may be subdivided into separate parcels and share ... ”

“ An owners corporation is a legal entity established by statute to represent the owners of property.  It is a body corporate and it may come into existence (is incorporated) cert as a consequence of the registration of a plan of subdivision pursuant to the Subdivision Act. Owners corporation can ... ”

“ Owners corporations often face an inherent conflict of interests when determining responsibility for repairs and maintenance undertaken by the OC. Part 3 of the Owners Corporations Act (Vic.) 2006 (the Act) is headed ‘Financial management’. Division 5 of that part has specific provisions relating ... ”

“ Whilst it is relatively simple to state legal principles, the application of those principles always depends upon the specific facts of the case. That is why it is not possible for a lawyer to advise a client what the outcome of any particular dispute will be. The best that we can do is weigh up ... ”

“ Property law is an inherently conservative branch of the law. The contest between strict legal principles and the application of equity seems to have occupied an inordinate portion of the last two centuries, with the common law principle of caveat emptor still being the starting point of any ... ”

“ A conveyancer’s perspective An excellent summary of the operation of the Aboriginal Heritage Act 2006 (Vic) appears in the June 2008 Law Institute Journal at page 52. This column considers the operation of the Act from the point of view of conveyancing and seeks to identify how the Act might ... ”

“ The Vendors Statement required by the seller of real estate pursuant to s 32 of the Sale of Land Act is a fundamental document in the conveyancing process. Designed as a consumer protection mechanism, the statement requires the vendor to disclose certain items of relevant information to a ... ”

“ The GAIC has been a political football. The government sought to establish a fund to provide for infrastructure in developing areas, not such an exceptional idea, however some bright spark hit on the idea of collecting the tax upon transfer from the ‘existing’ owner to the ‘developer’.  This would ... ”

“ Section 32 Sale of Land Act 1962 requires a vendor of land to provide a proposed purchaser with certain information about the land prior to the signing of a contract as a means of consumer protection and an equalization of the bargaining position between the parties. However s 32 does not ... ”

“ During 2012 the Department of Justice undertook a review of vendor disclosure obligations, specifically with a view to reducing red tape. The Sale of Land Amendment Bill 2014 amends s 32 of the Sale of Land Act and will come into effect on 1 October 2014 if not proclaimed before. Perhaps the most ... ”

“ Death can impact on a conveyancing transaction in a number of ways, whether the death occurs prior to commencement or during the course of the transaction. Survivorship ”

“ Legal representatives are required to identify their clients in a number of circumstances. Although there are no formal requirements as a matter of good practice new clients should be identified, for example by sighting a driver licence or other common document. There are more formal requirements ... ”

“ The essential difference between an agreement and a deed is that of consideration.  An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”

“ There is absolutely no difference in the form of a second or subsequent mortgage. There may be any number of mortgages granted over a property. It is just a matter of whether the mortgagee is satisfied that the mortgagor still retains sufficient equity in the property to support another mortgage, ... ”

“ Where there is more than one mortgage affecting a property, priority will be determined on the basis of time. In a Torrens environment it will be time of registration, with the first registered mortgage taking priority. If neither mortgage is registered, it will be time of creation, with the ... ”

“ Mortgagees may agree amongst themselves as to the priority of their mortgages. If those mortgages are registered, they may lodge a variation of priority. A variation can only be registered in relation to registered mortgages. If one mortgage is not registered, a variation cannot be registered, ... ”

“ Section 82 of the Property Law Act 1974 effectively abolishes the general right to tack with the exception of the tacking of a further advance. A mortgagee may advance as much and as often as the mortgagee wishes to. The doctrine of tacking merely affects the priority that the mortgage will enjoy ... ”

“ Marshalling equitable doctrine relates to realising of security when two mortgagees have security over assets of the mortgagor. If one mortgagee has security over two assets and a second mortgagee has security over only the first of those assets, marshalling allows the second mortgagee to rely on ... ”

“ A mortgage creates a caveatable interest, so a caveat may be lodged. However, the power of sale can only be exercised pursuant to a registered mortgage, not a mortgage protected by caveat. ”

“ Most discharge documents simply refer to the discharge of the land from the obligations under the mortgage. However, this does not necessarily constitute a discharge of the personal covenants that bind the mortgagor pursuant to the mortgage contract. See Industrial Acceptance Corporation Ltd v ... ”

“ Like any other proprietary right, the mortgagee’s rights may be assigned to a third party. A transfer of mortgage is effected by the use of Titles Registry Form 1 Transfer. Notice to the mortgagor is not strictly necessary, but an assignee would presumably wish to advise of the assignment to ... ”

“ The terms of a mortgage may be varied and the variation may be registered. Section 79 Property Law Act 1974 sets out what may be varied, including interest, amount, term or any covenant or provision of the mortgage. It is not possible to vary the parties or the property secured. ”

“ A material alteration of a mortgage will invalidate the mortgage. If the alteration is authorised by some but not all of the mortgagors, it will be unenforceable against the mortgagor who did not authorise the alteration: Farrow Mortgage Services Pty Ltd (In Liquidation) and Anthony George Hodgson ... ”