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Contract of Sale of Land – VIC

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With the LIV contract not currently available through LEAP, the By Lawyers Contract of Sale of Land is available to all LEAP users until 1 March 2020. Beyond that date it will remain available to LEAP users who have By Lawyers as a companion product to their LEAP subscription. It can also be accessed by non-LEAP users through the By Lawyers website by subscribing to our Victorian Conveyancing Guide, which has many associated benefits such as full access to 1001 Conveyancing Answers.

Adapting to the use of the Russell Cocks authored By Lawyers contract should present few problems as Russell was the principal author of the LIV contracts, including the 2008 version which effectively overhauled the previous contract and established the current format, making the terms of the By Lawyers contract familiar and making numerous improvements.

The By Lawyers Contract of Sale of Land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The By Lawyers contract removes the need for special conditions other than those covering special circumstances. It has a number of other advances over the LIV contract which further simplify the conveyancing process.

The By Lawyers legal and editorial teams ensure that the contract is immediately brought up to date with any changes in law or practice.

Recent amendments to the By Lawyers Contract of Sale of Land – Parts 1 and 2.

  • The ‘Payments’ section in Part 1 of the By Lawyers Contract of Sale of Land (VIC) has been amended for clarity regarding payment of GST;
  • A new clause has been added to Special Condition 14(f) of Part 2 which attaches a Flight v Booth type test to the purchaser’s ability to end the contract for unsatisfactory pest or building report;
  • The time for settlement has been moved from 3 pm to 4 pm to reflect current practice.

For further information see our previous post Seven reasons to use the By Lawyers contract.

Land tax – VIC

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Land tax Victoria – Absentee owner surcharge

The land tax surcharge where applicable to Victorian property increases from 1.5% to 2% with effect from 1 January 2020.

The By Lawyers  Victorian Conveyancing publications, as well as the Trusts publication, have been updated accordingly.

By Lawyers wish everyone a happy holiday season.

Land tax – NSW

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Land tax NSW – Increases to threshold values

Land tax thresholds are indexed to rise on 1 January each year.

The 2020 threshold combined land value will increase to $734,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,488,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in By Lawyers Conveyancing & Property Guides have been updated accordingly.

By Lawyers wish everyone a happy holiday season.

 

Transfer by direction – SA

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Requirements for a transfer by direction have been relaxed in SA.

A recent Revenue Ruling SDA009[V2] states that, unless additional consideration is being paid by the transferee, a Deed of Assignment or Nomination is no longer necessary for any purchaser to direct the vendor to transfer the property to any other person or entity – whether related or not.

The Ruling states that Revenue SA:

  • acknowledges that a purchaser named in a contract has a common law right to direct the vendor to transfer the land to any party the purchaser chooses. This common law right to a transfer by direction exists whether or not the purchaser executes the contract with “and/or nominee”; and
  • no longer requires a letter of agency/nomination, nor any formal assignment, where a purchaser named in a contract and the person named in the transfer pursuant to that contract are not the same.

However, stamp duty will still be payable where an assignment document is prepared and executed, or when Section 68 of the Stamp Duties Act 1923 applies.

The ruling contains an example direction to the vendor.

The Sale and Purchase commentaries in the by Lawyers SA Conveyancing publication have been updated accordingly.

Precedent update – Conveyancing – NSW

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A precedent update has followed recent user feedback. Significant amendments have been made to the ‘Letter to purchaser after exchange’ in the Purchase of Real Property Guide.

This useful precedent letter now includes headings and reflects the process of payment of transfer duty where settlement is to occur electronically.

The areas covered, now organised under the new headings are as follows:

  • GST
  • Investigation of title
  • Transfer duty
  • Insurance
  • Pre-settlement

The ‘Letter to purchaser after exchange when no initial letter done’ has also been amended to reflect these changes.

At By Lawyers we love to receive feedback from our users and they are often the reason that we conduct a precedent update.

Conveyancing – supplier notification – All states

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Supplier notification obligations for GST withholding

By Lawyers frequently receive questions from subscribers about supplier notification and GST withholding obligations for residential conveyancing. Commentary on GST withholding requirements for residential properties can be found in all By Lawyers Sale and Purchase Guides.

A vendor/supplier will have a notification obligation if supplying, by way of sale or long-term lease, either existing or new residential premises or potential residential land where the purchaser is not a registered entity acquiring the land for a creditable purpose. There is no requirement that the supply be a taxable supply.

Where a notification obligation exists, the vendor/supplier is required to provide the purchaser with a written notice, called a Supplier notification, containing information to help the purchaser comply with their GST withholding obligations.

The notice must state whether or not the purchaser has a withholding obligation. If the purchaser does not have a withholding obligation, the notice must make it clear that ‘no withholding is required‘.

If the purchaser does have a withholding obligation then the notice must include additional information. The requirements are set out in Schedule 1 of the Taxation Administration Act 1953 – section 14-255.

The By Lawyers Contract for the sale of land includes a clause satisfying supplier notification obligations.

A Supplier notification precedent is available in all By Lawyers Conveyancing – Sale matter plans, in ‘The contract’ folder.

 

Water rights – QLD

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A new chapter on water rights has been added to the By Lawyers reference guide 1001 Conveyancing Answers for Queensland.

The new content covers water allocations, water licences, overland flow, water trading and searching the register. Note that the Registrar of Land Titles is also the Registrar of Water Allocations.

By Lawyers do not currently offer a full commentary on the increasingly complex and valuable rights attaching to the usage, allocation  and trading of water, but the new content in 1001 Conveyancing Answers assists as a starting point for Queensland practitioners who are called upon to advise clients in relation to the rights attaching to water in various circumstances, whether in the context of property transactions, property development, or stand-alone water trading transactions.

Helpful interactive links are also provided in the new content to allow users to quickly access the detailed information available on the Business Queensland website.

For LEAP users, the new matter types now available in Queensland for Rural Law/Agribusiness, which include Water licences and Water allocations, contain all relevant Land Registry forms relating to water rights. These new matter types are available via Other Areas of Law in the Browse tab from within any LEAP matter.

Conveyancing – amendments in support of eConveyancing – NSW

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Amendments to the Conveyancing Act 1919 and the Real Property Act 1900 by the Conveyancing Legislation Amendment Act 2018, in support of eConveyancing, commenced on 22 November 2018. These amendments address the following key issues concerning electronic conveyancing:

  • Clarifications regarding the application of the Conveyancing Act 1919 and the Real Property Act 1900 to electronic form contracts and electronic signatures – s 6C, 23C (2) and 54A (4);
  • If a sale of land contract is in electronic form then those documents which must be attached to satisfy vendor disclosure obligations may also be in electronic form.
  • Where a registry instrument (dealing, memorandum, caveat or priority notice) is lodged for registration, any other document supporting that instrument may be signed electronically: s 36 (1F) Real Property Act 1900;
  • A client authorisation produced in electronic form may also be electronically signed: s 107 (1A) Real Property Act 1900; and
  • Deeds are now able to be electronically signed and attested – Section 38A of the Conveyancing Act 1919 states that a deed may be created in electronic form and electronically signed and attested in accordance with Part 3. Notably, this includes leases.

The Sale and Purchase Commentaries as well as 1001 Conveyancing Answers within the By Lawyers Conveyancing Guide (NSW), which already cover eConveyancing in detail, have been updated to reflect these changes in support of eConveyancing.

The Commentary within the By Lawyers Leases (NSW) Guide has also been updated.

A full description of the sale and purchase process – Conveyancing – NSW

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By Lawyers is pleased to announce the publication of new reference materials within our Conveyancing Guides which provide a full description of the conveyancing process for both sale and purchase. These descriptions provide details on the procedure to follow when conducting a sale or purchase, using the precedents available in the By Lawyers Conveyancing (NSW) Guides, together with LEAP and InfoTrack.

The full descriptions follow the typical progression of a residential sale or purchase and include screen shots to assist with the procedural aspects of running the matter in LEAP. These descriptions are not intended to be a substitute for our comprehensive Conveyancing commentaries, or the detailed Matter Plans and To Do lists provided in our Guides – rather they are intended to be complementary, providing the user with more detailed explanations on the very practical aspects of running a conveyancing matter from start to finish.

Areas covered include:

  • How to open a file;
  • How and when to order quality and title searches;
  • How to create the contract with the correct order of documents;
  • How and when to enter matter information into LEAP;
  • Arranging an exchange;
  • Completing settlement figures and directions – adjusting council rates, water, sewerage, strata.
  • Preparing for settlement – both paper and electronic.
  • Post-settlement procedure.

While these new resources are ideally suited to those with little or no hands-on experience with conducting conveyancing matters, they will also be of benefit to those unfamiliar with running conveyancing matters in LEAP, or who need to step in and conduct a conveyancing file for another team member who is on leave.

Another great advantage provided by these full descriptions is the ability to delegate conveyancing tasks to junior staff and have them understand the conveyancing process without having to direct them every step of the way.

Like all of the practical resources in the By Lawyers Conveyancing Guides, these new reference materials provide firms not currently taking on conveyancing work the ability to do so easily.

Qld – PEXA settlements – Transfer duty

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New commentary has been added to the By Lawyers Purchase Guide and 1001 Conveyancing Answers Queensland to clarify the specific stamping requirements for PEXA settlements.

Stamping must commence in the PEXA Workspace so that an ELN Transaction Number generates. This allows OSRconnect to directly verify the transfer duty once stamping has been submitted.

If stamping has already occurred in paper then the ELN Transaction Number does not exist and the system is unable to verify transfer duty so settlement in PEXA is not possible. The transaction will then need to revert to a paper settlement.

See the heading ‘Duties and Grants’ in the By Lawyers Purchase Commentary for details on the procedure to be followed.

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