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Topics: Contract, Contract law, Contractual term Pages: 29 (9157 words) Published: March 18, 2013
Law Extension Committee Winter 2007 Conveyancing Introduction and Formation of Contract _____________________________________________________________________________

CONVEYANCING LECTURE 14 MAY 2007 Note: Students should read the Chapters in Lang & Skapinker and the cases referred to in the Guide. These notes are NOT a substitute for reading the text and considering the cases. _________________________________________ Introduction Conveyancing “Conveyance” is defined by the The Australian Oxford Dictionary to mean “the transfer of property from one owner to another”. Conveyancing has the corresponding meaning so when we talk about the law of conveyancing we are talking about the laws relating to the transfer of property. This is likely to be a simplification, as it is generally accepted that conveyancing relates to many matters dealing with property and not just strictly speaking the transfer process. As you will remember from Real Property there are some rules that are different for land under Old System Title and land under the provisions of the Real Property Act (or Torrens title). While the law relating to the creation of contracts for the sale of land do not differ depending on title, the practical steps to ‘convey’ title and the investigation of that title differ significantly. Title and quality The task of the conveyancer (whether solicitor or licensed conveyancer) is to ensure that title to land is ‘conveyed’ (whether by conveyance for old _____________________________________________________________________________ © James Helman 2007 Page 1 of 28

Law Extension Committee Winter 2007 Conveyancing Introduction and Formation of Contract _____________________________________________________________________________

system land or transfer for Torrens land) from the vendor to the purchaser. It is not the task of the conveyancer to ensure that the quality of the property being purchased is up to the standard expected by the purchaser. We will deal with this issue and the difference between ‘title’ and ‘quality’ in the next lecture. ‘Title’ is title to the land. In Real Property we dealt with the issue of whatever is attached to the land becomes part of the land. Because of this doctrine when we refer to ‘land’ we also refer to whatever is attached to it. This is explored further in the next lecture as well. Timeline It is important to consider the timeframe in which most conveyancing transactions take place. It is always finite and usually within the range of 4 to 6 weeks. The work to be completed within that timeframe is considerable and requires organisational skill as well as legal knowledge. If problems arise, they need to be addressed promptly and dealt with competently. Unlike some areas of law where matters tend to drift on and time lines, while important, are not as compressed, conveyancing is always carried out under pressure. There is a timeline for a normal conveyancing transaction at the end of these notes. Mortgages While is can be said that a mortgage transaction is not a ‘conveyancing’ transaction, the reality is that most purchasers require finance to complete the purchase and that finance will be secured by a mortgage on the title to the property being purchased. For this reason, some time will be spent on the subject of mortgages as we progress through the

_____________________________________________________________________________ © James Helman 2007 Page 2 of 28

Law Extension Committee Winter 2007 Conveyancing Introduction and Formation of Contract _____________________________________________________________________________

lectures. It would be useful to review your notes (if you still have them) from the Real Property subject. If not, then Butt is now in a 5th edition. Leases Many residential properties are tenanted at the time they are listed for sale. It may be the intention of the vendor to sell the property with the tenant or to arrange for the tenant to vacate after a...
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