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Introduction to Land Contracts - Coggle Diagram
Introduction to Land Contracts
Standard form contracts in QLD
Contract for Houses and Residential Land
(Houses and Land Contract)
Contract for Lots in a Community Titles Scheme
(Residential Community Title Contract)
Contract for Sale of Commercial Land and Buildings (Commercial Contract)
QLD Conveyancing Protocol
Details the Process and is considered Best Practice
Torrens Title Land
Indefeasability of title
A system of land registration, confers paramount title on the registered proprietor of a parcel of Torrens title land.
Case Law:
Frazer v Walker
[1967] 1 AC 569
Breskar v Wall
(1971) 126 CLR
The Torrens system under the
Land Title Act
is one of
title by registration
NOT
registration of title
Refer to Land Law texts for deeper analysis of indefeasability
Title and transfer by registration
The buyer of land has duties under the Act, which must be attended to promptly
Search the register to determine the seller's title
Lodge a caveat or Settlement Notice
Caveats
Settlement Notice; pursuant to s 140 of the
Land Title Act 1994
(Qld). Gives temporary (60 days) protection until transfer registered.
Caveat; Div 2 of the
Land Title Act 1994
(Qld). While also giving benefit of the Settlement Notice, may be the first step to commencing legal action in relation to a transfer.
Solicitor's Authority
Cl 10.4 of the House and Land contract deals with notices. 10.4(2) provides solicitors to the parties may give notices, and 10.4(7) deems that these notices are given with the authority of the relevant contracting party
Limits of 10.4 - 'to notices under this contract'
Pazcuff Pty Ltd v Farmilo
[2010] 2 Qd 268 [15]
Variation and Granting an Indulgence
Must be distinguished.
Nowrani Pty Ltd v Brown
[1989] 2 Qd R 582
Election
Should information obtained during searches give rise to a contractual right to affirm or terminate, action taken by the solicitor will bind the client. Even if the client does not have any actual knowledge of the information.
Solicitor's Duties
Duty to Advise: Contract and Risk
Explain the contract terms and the risks inherent in the terms.
Duty is to advise on SALIENT points, not every clause!
Special conditions
UNUSUAL TERMS
Subject to finance, inspections etc
RISKS
TIME
Keep an eye on the scope of your retainer. Ensure it remains appropriate for the task at hand.
Ethics
Know your client
Verify identity
Especially where e-conveyancing is involved
Legal Profession Act 2007; Australian Solicitor's Conduct Rules
Main duty of loyalty focuses on conflidt
Conflict of your duty, and your own interest
You cannot act for a party in a matter in which you have a personal interest which may conflict with your client
ASCR 12.1 - extends to associates
conflict of your duty to the client and competing duties
Be wary of concurrent duties. ASCR 11.1
No blanket rule exists, but is a highly risky scenario
Mantonella P/L v Thompson
Undertakings
Very common in conveyancing
Signed transfer documents will only be held by the buyers solicitor for the purpose of
ASCR 6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released the recipient or by a court of competent jurisdiction
ASCR 6.2 A solicitor must not seek from another solicitor, or that solicitor's employees, associate, or agent, undertakings in respect to a matter that would require the co-operation of a third party who is not party to the undertaking