ASIC Class Order [CO 00/0213]

ASIC Class Order [CO 00/213]

Real estate companies

This instrument has effect under subsection 741(1) and paragraph 911A(2)(l) of the Corporations Act 2001.

This compilation was prepared on 4 October 2005 taking into account amendments up to [CO 02/266].

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Subsection 741(1) and Paragraph 911A(2)(l) — Exemption

Pursuant to subsection  741(1) of the Corporations Act 2001 (“the Act”), the Australian Securities and Investments Commission hereby exempts each person in the class of person mentioned in Schedule A from section  707 of the Act in the case referred to in Schedule B.

And under paragraph  911A(2)(l) of the Act, ASIC hereby exempts a real estate agent licensed (the “Agent”) in a State or Territory in this jurisdiction from the requirement to hold an Australian financial services licence for the provision of financial services in relation to offers of shares mentioned in Schedule A in the case referred to in Schedule B and where any person to whom the Agent provides the  financial services has before those services are provided been advised in writing that the Agent is not licensed under the Act and that the relationship between the Agent and the person is to be governed by the real estate licensing provisions in the relevant State or Territory.

SCHEDULE A

Persons offering for sale shares in a real estate company, not being shares which entitle the holder to an interest in a time-sharing scheme (“the shares”).

SCHEDULE B

An offer to sell the shares by or on behalf of the owner of the shares (“the vendor”) where a copy of the proposed contract (“contract”) for sale of the shares (excluding only particulars of the purchaser and purchase price) is available to any offeree at the time of making the offer and where:

(1) the terms of the contract include particulars as to:

(a) the area or areas to which the shares relate and title particulars of the land of which the real estate company is the tenant in fee simple or lessee under a Crown lease (“the property”) and any interest affecting that property; and

(b) the occupancy and any usage rights in respect of the area or areas to which the shares relate;

(2) it is an essential term of the contract that on completion of the contract:

(a) the vendor will be or will be entitled to be the registered holder of the shares; and

(b) the title of the real estate company to the property will be unencumbered, subject only to any matter affecting that title described in the contract;

(3) the contract contains a warranty by the vendor that, so far as the vendor is aware, after making reasonable enquiries of the directors of the real estate company:

(a) other than as disclosed in the contract, the real estate company has no actual or contingent liabilities (except normal operating expenses for its current financial year) nor are there any defects (whether patent or latent) in any common property which may involve the real estate company in the expenditure of money for repair or replacement (other than ordinary wear and tear); and

(b) the real estate company is not in liquidation and, other than as disclosed in the contract and so far as the vendor is aware:

(i) the real estate company is not subject to any external administration or liable to be wound up;

(ii) no action is pending in any court for the liquidation of the real estate company;

(iii) no meeting has been called for the purpose of winding up the real estate company; and

(c) there are no proceedings pending in any court against the real estate company that might prejudice or detrimentally affect it or its assets;

(4) under the terms of the contract the purchaser may make requisitions in relation to the vendor's title to the shares and the real estate company's title to the property other than in respect of any matter fully disclosed and clearly described in the contract and identified as acceptable to the purchaser; and

(5) annexed to the contract are copies of:

(a) the title documents in respect of the property which are current at the date of the contract; and

(b) the constitution and any other charter documents of the real estate company which are current at the date of the contract.

Interpretation

In this instrument:

“real estate company” means a company, other than a company included in the official list of a prescribed financial market:

(1) where:

(a) the company is:

(A) the tenant for an estate fee simple; or

(B) the registered lessee under a Crown lessee granted for a period of not less than 99 years,

of land which includes a building or buildings in which is situated area or areas to which the shares relate; and

(b) the shareholders are entitled, by virtue of or arising out of their shareholdings, to the exclusive occupation of one or more of those areas and the use of any common areas; and

(c) the company's constitution prohibits the payment of any dividend to its members other than on the winding up of the company or the company operates principally for the purpose of:

(i) facilitating and enforcing the rights of shareholders in relation to exclusive occupation of those areas; and

(ii) maintaining any common areas;

or

(2) where the company is:

(a) a service company as defined in the Transfer of Land Act 1958 (Vic) in respect of a building subdivision as defined in that Act (commonly known as Stratum Title companies); or

(b) a company of the type described in section 5.10(4) of the repealed Local Government (Planning and Environment) Act 1990  (Qld) (commonly known as Lake Title companies); or

(c) the registered proprietor of land which:

(i) adjoins land owned by its shareholders; and

(ii) is subject to easements of right of way in favour of those adjoining lands (commonly known in Queensland as Court Title companies).

Notes to ASIC Class Order [CO 00/213]

Note 1

ASIC Class Order [CO 00/213] (in force under subsection 741(1) and paragraph 911A(2)(l) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the Tables below.

Table of Instruments

Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted