ByLawyers News and Updates

Common seals – NSW

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Some common seals are not only back, they are here to stay!

From 30 September 2022, owners corporations and community associations can no longer execute documents by signing. Instead, owners corporations and community associations can now only execute documents using either a physical or an electronic form of their common seal.

These new requirements allowing execution via electronic seals replace the previous temporary COVID-19 measures which have applied to both strata and community schemes since June 2020.

Documents that now need to be executed under the entity’s common seals include NSW Land Registry Services instruments and dealings.

There are also new requirements relating to electronic voting at meetings for strata and community schemes. Voting can be done by electronic means and physical attendance is no longer required. However, this only applies if the notice of the meeting specifies an alternate means of voting. If votes can be cast other than in person, then the secretary of the owners corporation, the secretary of the association, or the managing agent must take reasonable steps to ensure each person entitled to vote can in fact vote and participate in the meeting.

The By Lawyers Conveyancing and Property publications, including 1001 Conveyancing Answers (NSW), have been updated accordingly.

NSW – Conveyancing – Sale – Replies to requisitions

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Responding to a recent subscriber request, we have added new standard replies for the following Law Society requisitions:

  • Residential Property 2018;
  • Strata Title (Residential) Property 2018;
  • Commercial 2018; and
  • Strata Title (Commercial) Property 2018.

These replies are in our Conveyancing – Sale (NSW) guide and form part of By Lawyers extensive library of replies to requisitions, which comprises replies to all common forms of requisitions including those produced by the Law Society of NSW and Australian Law Stationers.

Note: when using the By Lawyers Contract for Sale of Land requisitions are not required – by operation of clause 11 of the By Lawyers Contract, the warranties given by the vendor in the contract replace requisitions.

The main function of requisitions in modern conveyancing is to remind the vendor of the implied obligation to deliver a good title. But in the vast majority of matters the vendor’s title is completely uncontroversial. For this reason a practice has developed of including requisitions and answers in the contract. In our view the better approach is to raise only requisitions that need to be raised, rather than standard requisitions that are largely irrelevant and receive a standard response.

In a typical conveyancing matter using the By Lawyers contract there should be no need to raise requisitions except where the purchaser’s enquiries reveal a likely defect in title. The vendor warranties implied into all contracts by the Conveyancing (Sale of Land) Regulation 2017 are included as a reminder to vendors and for the information of purchasers.

Combustible cladding ban – Home building warranties

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From 15 August 2018, certain combustible cladding, being any cladding with a core comprised of more than 30% polyethylene, is banned in NSW, with limited exceptions. The state-wide prohibition affects any form of the combustible building material used in external cladding, external walls, external insulation, facades or rendered finishes for certain multi-storey residential and commercial premises. The ban is retrospective and applies to buildings built before 15 August 2018.

The use of such cladding is considered a major defect for the purposes of the home building statutory warranties. This means that owners have a period of up to six years in which legal proceedings can be commence against the builder. There is another six months added to the warranty period if the defect only becomes apparent after five and a half years.

The strata defects bond scheme will continue to operate normally. The introduction of the ban does not stop an owners’ corporation from pursuing a claim under the strata defects bond scheme. An owners’ corporation can use all or part of the bond to pay for the rectification of any defective building work that is identified in a final inspection report, including the use of a banned building product.

The Department of Planning and Environment has released a draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 that will require owners of buildings with combustible external wall cladding to register the building with the government and undertake a fire safety assessment within set deadlines.

The By Lawyers Sale and Purchase commentary and our Reference Guide 1001 Conveyancing Answers (NSW) has been updated to reflect these changes.

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