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BSBCNV502 Read And Interpret A Legal Document And Provide Advice

tag 1 Download 49 Pages / 12,169 Words tag 25-03-2021


Before beginning, you will need to recall the standard elements of a contract. As with any other contract, a contract for the sale of land must meet the essential requirements of a contract, that is, there must be:

  • an intention to enter into a contractual relationship
  • offer and acceptance, that is, agreement
  • consideration passing from both parties
  • the legal capacity on the part of both parties to enter into a contract
  • certainty by both parties as to what the terms of the contract are (i.e. mutuality)
  • legality of purpose, that is the contract must be legal.

The essential ingredients necessary to comply with S126 of the Instruments Act are therefore Parties, Property, Price and Promise (or Agreement). This is termed an open contract. If your client enters an open contract, the courts would imply terms that have not been specifically addressed by the contract. An example of an open contract occurring might be when the parties agree to the terms of a contract for the sale of land by correspondence, but are yet to complete formal documentation. Some terms that the common law would imply are:

  • The vendor must give vacant possession on completion
  • The contract must be performed within a reasonable time
  • Upon execution of the contract the property is at the risk of the purchaser
  • Time is of the essence
  • The vendor must show a good safe holding and marketable title subject only to those defects of which the purchaser has notice
  • Outgoings are to be between the parties apportioned
  • If the courts have not established a precedent which will resolve the particular issue then a precedent will be set

Identify rules governing construction and interpretation of contracts and other legal documents

S126 of The Instruments Act 1958 states that any Contract for the sale of real estate must be "in writing signed by the person to be charged or by a person lawfully authorised in writing by that person". This means that a simple verbal contract is not enforceable if it relates to the sale of real estate. To comply with The Instruments Act 1958 and to ensure that the parties involved in the sale of real estate know exactly what is being bought and sold, and the conditions by which the sale is to take place, a formal Contract of Sale document is used. This document is usually prepared by a lawyer, and is tailored to suit the parties and the circumstances of the sale.

The document itself usually contains numerous conditions, that set out the "rules" by which the deal will proceed and eventually settle.

Once a contract has been signed by both parties, any variations must be in writing and signed by both parties

If a seller does not provide a contract in preparation for a sale, then an estate agent or agent’s representative usually completes a contract on their behalf.

An agent may fill in, but not draft, certain contracts including: a prescribed contract, a contract prepared by a legal practitioner or a licensed conveyancer, a contract approved by the Legal Services Board or otherprofessional association.

Details for each title:

(a) volume and folio

(b) land description

(c) registered proprietor details, stating manner of holding the land

(d) mortgages or caveats

(e) other encumbrances

The purpose of SOLA (previously sections 3 to 7) is to prohibit certain conveyancing transactions where a vendor might be paid in full but be unable to fulfil their contractual obligations to provide a good safeholding and marketable (unencumbered) title when required. These prohibited transactions are:

  1. The sale of land on terms by a vendor who was still to complete the terms purchase of the land.
  2. The sale of land on terms where the land was subject to a mortgage.
  3. The mortgaging of land by a vendor who had already sold it on terms

In the period between contract and settlement, there are a number of matters requiring attention in order to protect the purchaser's interests under the contract.

where applicable, the right to cool off; the contract and vendor statement;

the need to measure the property and advise immediately of any inaccuracies;

the advisability of insuring the property from the day of sale; details of the fee structure and anticipated expenses applicable to the transaction.

Where the purchaser is buying "off the plan" there are numerous other issues that should be explained. It may be too late once the contract is signed but it is still worth providing advice on these issues. At least that way the purchaser is prepared for what may eventuate.

The practitioner would also attend to a number of matters, including:

applying for the certificates and searches;

advising the vendor's representative whether the purchaser requires production of a form 312 or building insurance certificate in accordance with general conditions 7 & 8 of the prescribed contract;

lodging a purchaser's caveat on title; preparing transfer documents; dealing with any lending institution.

Searches and enquiries are used to:

check the accuracy of the vendor statement and also to ensure that nothing has been omitted;

ensure that the land can be used as your client intends;

ascertain the extent to which any restriction limits or prohibits development of the land;

ensure that the terms or any restriction have been complied with;

establish the final amounts owing for rates, taxes and charges so that they can be adjusted at settlement;

enable an informed decision to be made with regard to the vendor's equity in the land if an early release of deposit is requested.

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Total 49 pages

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