New form of contract of sale of real estate

From 1 March 2012, there is a new form of contract of sale of real estate for use by lawyers in Victoria, brought about by the amendment of the general conditions in the Estate Agents (Contracts) Regulations 2008.

The current form of contract has been extant since September 2008.

I recently provided advice to a purchaser who had signed an old form of contract, which had been prepared by a practising lawyer in Victoria in 2010. The issue was whether General Condition 9.1 of the contract was void for uncertainty. That general condition provided: 

‘The general conditions in Table A of the Seventh Schedule of the Transfer of Land Act 1958 apply if the land is under the operation of that Act.’

The problem is that Table A was repealed in 2009. The contract therefore purported to include conditions contained in a statutory schedule which did not exist. 

Pursuant to s.70 of the Land Legislation Amendment Act 2009 (Vic) (Act 80 of 2009), a transitional provision was inserted into the TLA (see s.130) to deal with contracts that erroneously referred to the repealed schedule.  The transitional provision states as follows:

‘On and from the commencement of s.71 of the Land Legislation Amendment Act 2009, any reference to Table A of the Seventh Schedule to this Act in a contract is taken to be a reference to Table A of that Schedule as in force immediately before its repeal’.   

Therefore, the reference to the repealed schedule was still effective to import the Table A conditions into the contract of sale.  

In my opinion, and with all due respect, it is incumbent on lawyers in practice in Victoria to keep up to date with the current Regulations as they relate to contracts. 

The use of the pre-2008 contract is almost inexcusable, especially in view of the imminent change on 1 March 2012.

W G Stark
Hayden Starke Chambers