By Russell Cocks, Solicitor
First published in the Law Institute Journal
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:
- an Owners Corporation Certificate must be sealed with the owners corporation seal. This section has not as yet been proclaimed;
- a tenant may remove buildings and fixtures. This is not a new provision, rather a transfer of this right to the Property Law Act from the Landlord and Tenant Act, which has been substantially repealed and;
- permitting transfer of deposit held as stakeholder between legal practitioners, conveyancers and estate agents. This is simply a rewording of an existing provision.
Act 2 proposes the following changes:
- permitting an estate agent to purchase a property from a vendor provided that the vendor and a legal practitioner, conveyancer or accountant representing the vendor provide written consent to the transaction. This replaces the current procedure requiring prior consent from the Director, although notice of the transaction must be given to the Director;
- increasing the maximum permissible deposit in an off-the plan contract from 10% to 20%;
- requiring a WARNING to be added to the front page of an off-the-plan contract advising that the amount of the deposit may be negotiated and that a substantial period of time may elapse between the contract and settlement and that the value of the property may change in that time and;
- removing the exception to the cooling off right when a purchaser has obtained independent legal advice. This last proposed amendment (not yet passed) seems inexplicable. It is true that estate agents do use the present exception to remove the cooling off right, but surely the consumer protection objective of the right is satisfied when the purchaser has had legal advice? Typically an agent will ensure that advice is obtained when a sale close to auction date (but more than 3 days before) is proposed. Removing this device will make vendors reluctant to sell prior to auction or introduce the uncertainty of ‘subject to contract’ transactions. It is consumer protection gone mad. As this proposal has not as yet been passed, common sense may prevail.
Act 3 introduced the following changes (effective 1 May 2010):
- entitles the Registrar to NOT produce a paper title if the ‘person entitled to receive’ the title requests that no title be produced. Presumably a mortgagee could make such a request;
- removes the ability of the Registrar to record the age of a minor;
- removes the requirement that lost title applications be advertised;
- removes the right to deposit a deed of trust. A trust cannot be recorded on title and the anomalous right to deposit the trust has now been removed;
- simplifies the procedure associated with obtaining a vesting order – such as where a transferor cannot be located;
- simplifies the procedure associated with obtaining a discharge of mortgage when the mortgagee cannot be located;
- repeals s 48, which allowed the adoption of Table A;
- prohibits a variation of mortgage varying the length of the term of the mortgage;
- changes the period that the Registrar must wait before removing a caveat under s 89A from 35 days to 30 days;
- repeals the search certificate and stay orders procedure that appear to have never been used in Victoria and;
- amends the ‘Queens Caveat’ provisions by referring to a caveat on behalf of the Crown (rather than ‘Her Majesty’) and specifically empowering the Registrar to remove such a caveat.
Tip Box
Whilst written for Victoria this article has interest and relevance for practitioners in all states.