Why it is necessary to prepare a contract before the property goes on the market

1. It is important to prepare a contract of sale before the property is subjected to the market because it would make the buyers know about the property so that they can make an offer regarding it.  The contract must contain the property details, price, deposit to be paid, any specific conditions, all disclosure obligations and whether or not GST is included in the price and how the amount is to be calculated in case the report is included.
2. The duty of disclosure is also known as the section 32 statement or the vendor statement. The statement is provided by the seller to the buyer. The statement has to be correct and complete or the buyer may rescind the contract and take legal actions. The statement is made available by the agents to the buyers before the auction or sales takes place. The statement may be checked by the buyer’s lawyer before purchase.  The seller must disclose about Mortgages, covenants, easements, zoning, outgoing and declaration regarding the location of the property is in a Bushfire-prone area or not and any adverse affection, the land has no sewer which belongs to a sewerage authority.
3. Schedule 3 parts 1 of the CONVEYANCING (SALE OF LAND) REGULATION 2010 provides that the vendor must disclose that the land is not belonging to any adverse affection. It is very important to locate any adverse affection because if it is not declared by the seller that it is deemed that the seller has warranted that no adverse affection is present in the property and thus the buyer can make a claim against the seller if any adverse affection is found latter.
4. It is not advisable to use a 3 years old section 149 certificate because according to the Environmental Planning and Assessment Regulation 2000 because a latest certificate is needed if the property to be sold was purchased more than 6 months ago.

1. The law of property in New South Wales is governed by the Real Property Act 1900. The law of the land is based on the Torrens land law system. According to the system if the deed of a land is registered with the registrar than the title of the person in whose name the will is registered is indefeasible. According to section 42 of the RPA the person who has his name registered against a property and if such registration has not been obtained by fraud than the title of the registered person cannot be defeated.

In this case Skype has not been able to register the land she purchased along with clove in her name. She was promised by clove in writing that tat land would be registered in both their names. However before the promise could be executed clove had passed away. According to the principles of Torrens land system title is only created upon registration. Thus Skype has no claim over the land.

However according to the principles of equitable interest as provided by the case of Lysaght v Edwards (1876) the interest of purchase comes into existence as soon as the contract is enforced. In case there is a valid contract than beneficial ownership passes to the purchaser in case the vendor dies before the execution of the promise. It was further provided in the case of Chang v Registrar of Titles that specifically enforceable agreements cab be depended upon in relation to the doctrine of conversion.

Thus in this case Skype can use the doctrine of conversion and principles of equitable interest and claim her property.

In the present scenario it has been provided that Elton was the owner of the properties which have been transferred to different people according to his wishes. The will made by Elton initially provided that all his property would be given to Davith who his younger partner. However as he suspected his partner to be unfaithful he transferred the property to different people according to his wishes. According to common law a will does not take effect until the person dies thus Elton in this case has the right to transfer his property to any one he wishes.

It has already been discussed that once the registration of the title is completed the title of the person becomes indefeasible. Thus the title of the mansion provided by Elton to Simone has become indefeasible as soon as the transfer was duly attested and signed and the certificate of title was handed to Simone.

However there are certain circumstances where the title of a person which has been registered can be defeated. These circumstances include prior certificate, wrong description, omitted easement, profits-a-prendre, short term lease, overriding statues and adverse possessions. In the given circumstances it can been easily be analyzed that there has been no fraud involved on the part of Simone with respect to the transfer of the mansion in context. In case the transfer is done voluntarily without any consideration than the title is indefeasible upon a claim made by the transferor. However this provision is only valid in the state of Victoria and not New South Wales which adopts a narrow approach towards the Torrens system.

In this case there is further no dispute about the original title, the description is also not in dispute, and there is no prior certificate for the mansion thus it is deemed that the transfer of the mansion has been lawful and the title does not fall within the scope of section 42 of the RPA. Further as voluntary transfer is not regarded as a exception in NSW Elton has no right to claim the mansion which he has already transferred to Simone without any fraud being involved in the dealing. Thus according to the above discussion it can be concluded that Elton has no legal right on the property which he has already transferred to Simone in NSW even if the transfer has been done voluntarily without any consideration and further he cannot give the property back to his partner.

A contract for sale of land is comprised of two terms one is known as the warranty and the other as the condition. A warranty is the term which is not as important as the condition. An example of a warranty is when a vendor agrees to sell the property as it. In case there are some alterations in the property in relation to the accessories than the buyer is not entitled to rescind the contract. The only claim which can be made by the buyer in such circumstances is that he can claim compensation if it is not provided otherwise in the contract.

Whereas a condition is the term on which a contract is actually based. It is regarded as a term of primary importance and in case the condition is breach the innocent party has the right to abolish the contract on its discretion and claim any loss or harmed caused. In case of a contract of sale the primary condition is the sale of the property and if it is specifically mentioned in the contract than the sale of the other accessories also become a condition. Thus the essence in determining the remedy of a party is finding out whether the breached term is a warranty or a condition.

In the provided circumstances there is a contract between Arthur and Christina for the purchase of a business. It was specifically provided in the contract a list of equipments which were to be included in the sale. Desk was one of the equipment to be included in the sale. It was found by Arthur that a carriage-desk was missing along with air conditioner and there was damage on the wall. Arthur thus have the right to rescind the contract based on condition breach for the desk. And claim compensation from the damaged wall and missing air conditioner.

References

Blumm, Michael, and Kara Tebeau. “Antimonopoly in Public Land Law.” (2015).

CONVEYANCING (SALE OF LAND) REGULATION 2010

Gardner, Simon, and Emily MacKenzie. An introduction to land law. Bloomsbury Publishing, 2015.

Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business, 2016.

Lysaght v Edwards (1876)

MacKenzie, Judith-Anne, and Mary Phillips. Textbook on land law. Oxford University Press, USA, 2014.

McFarlane, Ben, Nicholas Hopkins, and Sarah Nield. Land law: text, cases, and materials. Text, Cases and Materials, 2015.

McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.

Real Property Act 1900

Webb, Eileen, and M. Stephenson. “Focus: Land Law.” (2015).