Untitled document

Estate Agents (Contracts) Amendment Regulations 2011

S.R. No. 163/2011

TABLE OF PROVISIONS

Regulation  Page

1Objective

2Authorising provision

3Commencement

4Principal Regulations

5Contract of sale of real estate—particulars of sale

Form 1—Contract of Sale of Real Estate—Particulars of Sale

6Contract of sale of real estate—general conditions

7.Release of security interest

═══════════════

ENDNOTES

STATUTORY RULES 2011

S.R. No. 163/2011

Estate Agents Act 1980

Estate Agents (Contracts) Amendment Regulations 2011

The Governor in Council makes the following Regulations:

Dated: 21 December 2011

Responsible Minister:

MICHAEL O'BRIEN
Minister for Consumer Affairs

MATTHEW McBEATH

Clerk of the Executive Council

1Objective

The objective of these Regulations is to amend the Estate Agents (Contracts) Regulations 2008 to amend the standard forms of contracts prescribed for the purposes of section 53A of the Estate Agents Act 1980 in order to comply with amendments made to the Sale of Land Act 1962 by Part 7 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 and as a consequence of the enactment of the Personal Property Securities Act 2009 of the Commonwealth.

2Authorising provision

These Regulations are made under section 99(1)(ge) of the Estate Agents Act 1980.

3Commencement

These Regulations come into operation on 1 March 2012.

4Principal Regulations

In these Regulations, the Estate Agents (Contracts) Regulations 2008[1] are called the Principal Regulations.

5Contract of sale of real estate—particulars of sale

For Form 1 in the Schedule to the Principal Regulations, substitute—

"FORM 1

Estate Agents Act 1980

Regulation 5(a)

CONTRACT OF SALE OF REAL ESTATE—PARTICULARS OF SALE

Part 1 of the standard form of contract prescribed by the
Estate Agents (Contracts) Regulations 2008

Property Address:

The vendor agrees to sell and the purchaser agrees to buy the property, being the land and the goods, for the price and on the terms set out in this contract.

The terms of this contract are contained in the—

·  Particulars of sale; and

·  Special conditions, if any; and

·  General conditions; and

·  Vendor's Statement

and in that order of priority.

The Vendor's Statement required by section 32(1) of the Sale of Land Act1962 is attached to and forms part of the terms of this contract.

IMPORTANT NOTICE TO PURCHASERS

Cooling-off period    Section 31

  Sale of Land Act 1962

You may end this contract within 3 clear business days of the day that you sign the contract if none of the exceptions listed below applies to you.

You must either give the vendor or the vendor's agent written notice that you are ending the contract or leave the notice at the address of the vendor or the vendor's agent to end this contract within this time in accordance with this cooling-off provision.

You are entitled to a refund of all the money you paid EXCEPT for $100 or 0×2% of the purchase price (whichever is more) if you end the contract in this way.

EXCEPTIONS

The 3-day cooling-off period does not apply if—

·   you bought the property at or within 3 clear business days before or after a publicly advertised auction; or

·   the property is used primarily for industrial or commercial purposes; or

·   the property is more than 20 hectares in size and is used primarily for farming; or

·   you and the vendor have previously signed a contract for the sale of the same land in substantially the same terms; or

·   you are an estate agent or a corporate body.

SIGNING OF THIS CONTRACT

WARNING: THIS IS A LEGALLY BINDING AGREEMENT. YOU SHOULD READ THIS CONTRACT BEFORE SIGNING IT.

Purchasers should ensure that prior to signing this contract, they have received a copy of the full terms of this contract.

The authority of a person signing—

·   under power of attorney; or

·   as director of a corporation; or

·   as an agent authorised in writing by one of the parties

must be noted beneath the signature.

Any person whose signature is secured by an estate agent acknowledges being given by the agent at the time of signing a copy of the terms of this contract.

SIGNED BY THE PURCHASER                  on    /    /20

print name of person signing

state nature of authority if applicable (e.g. "director", "attorney under power of attorney")

This offer will lapse unless accepted within [      ] clear business days (3 clear business days if none specified).

SIGNED BY THE VENDOR  on    /    /20

print name of person signing

state nature of authority if applicable (e.g. "director", "attorney under power of attorney")

The DAY OF SALE is the date by which both parties have signed this contract.

Particulars of sale

Vendor's estate agent

Telephone:          Fax:          DX:          email:          

Vendor

Vendor's legal practitioner or conveyancer

Telephone:          Fax:          DX:          email:          

Purchaser

Purchaser's legal practitioner or conveyancer

Telephone:          Fax:          DX:          email:          

Land (general conditions 3 and 9)

The land is—

described in the table below—

Certificate of Title reference	being lot	on plan
Volume             Folio
Volume             Folio

OR

described in the copy title(s) and plan(s) as attached to the Vendor’s Statement if no title or plan references are recorded in the table above or if the land is general law land.

The land includes all improvements and fixtures.

Property address

The address of the land is:

Goods sold with the land (general condition 2.3(f))

(list or attach schedule)

Payment (general condition 11)

Price      $

Deposit   $               by     /     /20     (of which $         

has been paid)

Balance   $               payable at settlement

GST (general condition 13)

The price includes GST (if any) unless the words 'plus GST' appear in this box

If this is a sale of a 'farming business' or 'going concern' then add the words 'farming business' or 'going concern' in this box

If the margin scheme will be used to calculate GST then add the words 'margin scheme' in this box

Settlement (general condition 10)

is due on     /     /20

unless the land is a lot on an unregistered plan of subdivision, in which case settlement is due on the later of:

·     the above date; or

·     14 days after the vendor gives notice in writing to the purchaser of registration of the plan of subdivision.

Lease (general condition 1.1)

At settlement the purchaser is entitled to vacant possession of the property unless the words 'subject to lease' appear in this box

in which case refer to general condition 1.1.  If 'subject to lease' then particulars of the lease are:

Terms contract (general condition 23)

If this contract is intended to be a terms contract within the meaning of the Sale of Land Act 1962 then add the words 'terms contract' in this box

and refer to general condition 23 and add any further provisions by way of special conditions.

Loan (general condition 14)

The following details apply if this contract is subject to a loan being approved:

Lender:

Loan amount  $

Approval date     /     /20

Special conditions

This contract does not include any special conditions unless the words 'special conditions' appear in this box

If the contract is subject to 'special conditions' then particulars of the special conditions are:".

6Contract of sale of real estate—general conditions

(1)In Form 2 in the Schedule to the Principal Regulations, general condition 1.3 is revoked.

(2)In Form 2 in the Schedule to the Principal Regulations, for general condition 3.1 substitute—

"3.1An omission or mistake in the description of the property or any deficiency in the area, description or measurements of the land does not invalidate the sale.".

(3)In Form 2 in the Schedule to the Principal Regulations, for general condition 7 substitute—

"7.   Release of security interest

7.1This general condition applies if any part of the property is subject to a security interest to which the Personal Property Securities Act 2009 (Cth) applies.

7.2Subject to general conditions 7.3 and 7.4, the vendor must ensure that at or before settlement, the purchaser receives—

(a)a release from the secured party releasing the security interest in respect of the property; or

(b)a statement in writing in accordance with section 275(1)(b) of the Personal Property Securities Act 2009 (Cth) setting out that the amount or obligation that is secured is nil at the due date for settlement; or

(c)a written approval or correction in accordance with section 275(1)(c) of the Personal Property Securities Act 2009 (Cth) indicating that, on the due date for settlement, the personal property included in the contract is not or will not be property in which the security interest is granted—

if the security interest is registered in the Personal Property Securities Register.

7.3The vendor is not obliged to ensure that the purchaser receives a release, statement, approval or correction in respect of any personal property that is sold in the ordinary course of the vendor's business of selling personal property of that kind unless, in the case of goods that may or must be described by serial number in the Personal Property Securities Register, the purchaser advises the vendor at least 21 days before the due date for settlement that the goods are to be held as inventory.

7.4The vendor is not obliged to ensure that the purchaser receives a release, statement, approval or correction in respect of any personal property that—

(a)is not described by serial number in the Personal Property Securities Register; and

(b)is predominantly used for personal, domestic or household purposes; and

(c)has a market value of not more than $5000 or, if a greater amount has been prescribed for the purposes of section 47(1) of the Personal Property Securities Act 2009 (Cth), not more than that prescribed amount.

7.5A release for the purposes of general condition 7.2(a) must be in writing and in a form published by the Law Institute of Victoria, Law Council of Australia or the Australian Bankers Association.

7.6If the purchaser receives a release under general condition 7.2(a), the purchaser must provide the vendor with a copy of the release at or as soon as practicable after settlement.

7.7In addition to ensuring a release is received under general condition 7.2(a), the vendor must ensure that at or before settlement the purchaser receives a written undertaking from a secured party to register a financing change statement to reflect that release if the property being released includes goods of a kind that are described by serial number in the Personal Property Securities Register.

7.8The purchaser must advise the vendor of any security interest that the purchaser reasonably requires to be released at least 21 days before the due date for settlement.

7.9If the purchaser does not provide an advice under general condition 7.8, the vendor may delay settlement until 21 days after the purchaser advises the vendor of the security interests that the purchaser reasonably requires to be released.

7.10If settlement is delayed under general condition 7.9, the purchaser must pay the vendor—

(a)interest from the due date for settlement until the date on which settlement occurs or 21 days after the vendor receives the advice, whichever is the earlier; and

(b)any reasonable costs incurred by the vendor as a result of the delay—

as though the purchaser was in default.

7.11Words and phrases used in general condition 7 which are defined in the Personal Property Securities Act 2009 (Cth) have the same meaning in general condition 7.".

(4)In Form 2 in the Schedule to the Principal Regulations, in general condition 8, for "must provide at settlement details of any current builder warranty insurance" substitute "warrants that the vendor will provide at settlement details of any current builder warranty insurance in the vendor's possession".

(5)In Form 2 in the Schedule to the Principal Regulations, for general condition 11.2(b), substitute—

"(b)must be paid to the vendor's estate agent, legal practitioner or conveyancer and held by the estate agent, legal practitioner or conveyancer on trust for the purchaser until the registration of the plan of subdivision.".

(6)In Form 2 in the Schedule to the Principal Regulations, in general condition 11.4(b), omit "draft or".

(7)In Form 2 in the Schedule to the Principal Regulations, for general condition 11.6, substitute—

"11.6At settlement, the purchaser must pay the fees on up to three cheques drawn on an authorised deposit-taking institution. If the vendor requests that any additional cheques be drawn on an authorised deposit-taking institution, the vendor must reimburse the purchaser for the fees incurred.".

(8)In Form 2 in the Schedule to the Principal Regulations, in general condition 12.1(a), for "proof, to the reasonable satisfaction" substitute "particulars, to the satisfaction".

(9)In Form 2 in the Schedule to the Principal Regulations, in general condition 12.1(b), for "day of sale" substitute "particulars were given to the purchaser under paragraph (a)".

(10)In Form 2 in the Schedule to the Principal Regulations, in general condition 12.1(c), after "conditions" insert "of section 27".

(11)In Form 2 in the Schedule to the Principal Regulations, in general condition 13.1(b), after "supply" (where secondly occurring) insert "(or a part of it)".

(12)In Form 2 in the Schedule to the Principal Regulations, in general condition 13.1(c), for "is a going concern and the supply" substitute "is of a going concern and the supply (or a part of it)".

(13)In Form 2 in the Schedule to the Principal Regulations, in general condition 17.2(c), after "documents" insert ", including any manner authorised for service on or by a legal practitioner".

(14)In Form 2 in the Schedule to the Principal Regulations, after general condition 17.2, insert—

"17.3This general condition applies to the service of any demand, notice or document by or on any party, whether the expression 'give' or 'serve' or any other expression is used.".

(15)In Form 2 in the Schedule to the Principal Regulations, in general condition 19, after "signatory were the purchaser" insert "in the case of a default by a proprietary limited company purchaser".

(16)In Form 2 in the Schedule to the Principal Regulations, in general condition 23.1(a), for "sections 6(1) and 6(2)" substitute "section 29M".

(17)In Form 2 in the Schedule to the Principal Regulations,   in general condition 27.1, for "served" substitute "given".

(18)In Form 2 in the Schedule to the Principal Regulations, in general condition 27.2(b), for "of service of the notice" substitute "of the notice being given".

═══════════════

ENDNOTES

[1] Reg. 4: S.R. No. 97/2008.