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Chapter 7

Future Directions in Conveyancing


Ninety-Ninety Rule of Project Schedules: The first 90 % of the task takes 
90 % of the time, and the last 10 % takes the other 90 %.

Conveyancing Table of Contents

In this chapter
  1. (a) Generally
    (b)
  2. (a) Generally
    (b)
    (c)

1.	Generally

The United Kingdom Law Commission conducted a review of 
conveyancing from 1971 to 1974 and pointed out:-

	"The first step in the search of any procedure must be to ask what it 
is sellers and buyers of houses want. We have little doubt that the 
great majority of both are agreed on the answer to that question. It 
is that when an offer for a house has been made and accepted at a 
stated price, neither party should be allowed to go back on that 
bargain without a valid reason, The seller's main interest is, and 
always has been , to get the agreed price as soon as possible, whilst 
giving himself time to get another house and to move out into it. 
The buyer, on the other hand, having agreed to the price wants to 
know that he can stop house-hunting and concentrate his energies 
and attention on the house he has bought."1

The goal in conveyancing is to transfer the property being sold to the 
purchaser so than the purchaser's expectations are not defeated by some 
affectation unknown to him and to do this in a time frame that will allow the 
vendors to move out and the purchasers to move into possession. One may 
be excused for thinking that this should not be such a difficult goal to obtain 
but this leaves out of consideration the complexities of the present 
conveyancing law, the competing interests of the various parties involved in 
the conveyancing transaction and the present inadequate system for record 
affectations on land.


2.	The problem of gazumping

Much attention of reformers of the conveyancing system in recent times has 
been focused on gazumping. For instance on the passing of the 
Conveyancing (Sale of Land) Amendment Bill, 1987 through the 
Legislative Assembly it was said in the second reading speech:-

	"The purpose of these Bills is twofold. First, they are designed to 
overcome the undesirable practice of gazumping and, secondly, to 
promote a greater degree of efficiency in the conveyancing system 
operating in New South Wales....It is during the time taken to 
prepare and issue the contract that a purchaser, in the belief that a 
binding arrangement has been reached with the vendor proceeds to 
expend money undertaking searches and enquiries. Should the 
vendor accept a higher offer from another purchaser during this 
period, the earlier purchaser is said to be gazumped. Unfortunately, 
on many occasions, the loss suffered by the person who loses the 
property is quite considerable".2

From the second reading speech in the Legislative Assembly on the passing 
of the Conveyancing (Sale of Land) Amendment Bill and Auctioneers and 
Agents (Sale of Land) Amendment Bill in 1989:-

	"This legislative package is intended to overcome the problems 
which were found to exist with the present legislation and to 
provide a balance between the need to protect parties against the 
practice of gazumping in property transactions and the need for 
streamlined and workable conveyancing procedures."3

The Macquarie Dictionary defines "gazump' as "force a buyer to accept a 
price higher than that previously agreed upon". The practice of gazumping 
became prevalent in the United Kingdom during the 1960s and reached 
substantial proportions during 1971. The Law Commission of the United 
Kingdom described gazumping in these terms:-

	"It is generally is generally used to describe the situation in which 
the seller of a house, having agreed "subject to contract" to sell it at 
an agreed price, withdraws from the bargain or threatens to do so, 
in the expectation of receiving a higher price. The prospective buyer 
who has been "gazumped" is then put in the position either of 
having to pay the higher price or of losing the house. If he loses the 
house, any expenditure which he has incurred in anticipation of the 
proposed purchase will have been wasted. In addition, he will often 
have been put to a good deal of trouble, and suffer frustration, 
annoyance and disappointment as the result of what he is likely to 
regard a sharp practice on the part of the seller."4

The Law Commission was asked in 1971 to consider whether any 
legislation could deter or prevent gazumping. In 1974 the Commission came 
to the conclusion that neither practice or the law should be changed. An 
interesting comment made at the time of the United Kingdom Law 
Commission's report challenged some of the basic objections relation to 
gazumping:-

	"An owner, through not fault of his own, has to sell his home and 
sell it quickly. . His estate agent advises him that a proper price is 
$ 7,500.00, but as he is in a hurry he ought to accept an offer of 
$ 7,100.00, the offer being expressly subject to contract (and in 
the purchaser's mind, subject to (i) the purchaser's obtaining a 
satisfactory offer of an advance, (ii) a satisfactory survey, (iii) the 
purchaser's being satisfied that the adjoining land will not be build 
on, (iv) the purchaser's wife not changing her mind, (v) that he 
finds a buyer for his house at the maximum price, and so on and so 
forth). Another buyer comes along and offers $ 7,500.00 and yet 
another $ 7,750.00. The unfortunate owner perseveres with the 
first applicant who, after eight weeks, withdraws because his job 
has taken him to another part of the country or for any other reason, 
good or bad, whatever. Apparently, it is not suggested that the 
seller should have any remedy.

	It is, however, suggested that the buyer should if he wishes to stick 
to the $ 7,100.00. The owner, it is said, should sell at $ 7,100.00 
and enable the buyer to subsell at $ 7,750.00 or pay for the buyer 
the expense to which he has been put, even if he did not want to go 
ahead but keeps quiet about it. ... Why should an owner take less 
than the full price because he was badly advised or even because he 
did not realise the full value? It si not as if a buyer is going to offer 
more because he thinks the owner is not asking the best price. ... 
The overwhelming majority of both vendors and purchasers act 
fairly and responsibly. Solicitors struggle to avoid races and if 
pressed by their vendor clients do what they can to ensure that the 
first in the field has a reasonable opportunity to sign first. Vendors, 
both big and small, even if they feel that they have been misled as 
to the market value generally stick to what they have agreed. 
Purchasers are not all paragons of virtue nor do good purchasers 
become bad vendors."5

One result of attempting to protect the purchaser from gazumping is that the 
purchaser may "gazunder" the vendor. This was seen to occur when 
Preliminary Agreements were required. during the conveyancing boom in 
Sydney in 1988. At worst some purchasers would enter into two or more 
Preliminary Agreements waiting to see if they could find a buyer themselves 
for the property at a higher price. At best it was possible for a purchaser to 
take his time to make up his mind as to which property he would purchase 
and run the risk of losing only a few hundred dollars.


3.	Efforts to date

From 1920 to 1965 the standard form of contract was not amended. Since 
1965 there has been editions of the contract in 1972, 1982, 1986 and 1988. 
The amendments to conveyancing practice brought about by the 
Conveyancing (Sale of Land) Amendment Act, 1989 and Auctioneers and 
Agents (Sale of Land) Amendment Act, 1989 will furnish a further 
opportunity to amend the standard form of contract. It would appear that 
conveyancing is presently undergoing a period of accelerated change.

Efforts are being made to deal with some of the perceived problems in 
conveyancing, notably the delay between exchange of contract and 
settlement and the problem of gazumping. To combat the problem of 
gazumping the so called "anti-gazumping legislation" was introduced in 
1987. However this legislation was ill-conceived and this was forseen by 
lawyers at the time:

	"The analysis has disclosed several ambiguities, omissions and 
deficiencies in the legislation which, at an absolute minimum, 
should be rectified by legislative amendments and regulations. That 
is required in order to simplify and to rationalise the entire process 
involved in the preliminary agreement and reduce the likelihood of 
procedural error by either party.

	If the Government persists with this mechanism in an endeavour to 
restrict gazumping, it needs to be relatively simple and workable in 
the variable circumstances in which it will apply, i.e. sale with or 
without an estate agent, solicitors acting for all parties, one or more 
of the parties acting for themselves (which can be either the vendor 
or the purchaser or both).

	This legislation is likely to create considerable anxiety and practical 
problems in the orderly dispatch of conveyancing transactions for 
lawyers as well as clients. It would be entirely false to regard it as 
any simplification or rationalisation of conveyancing as it adds 
further complexity in all domestic transactions. The legislation will 
place considerable added burden on parties seeking to act for 
themselves. Persons untrained in conveyancing practice would not 
understand the complexities of this legislation and it is unlikely that 
any public education campaign can or will equip parties acting for 
themselves to handle these procedures efficiently and effectively."6

The "anti-gazumping legislation" legislation was introduced by the 
Unsworth Labour Government just prior to State elections without adequate 
consultation with interested professional bodies. Unfortunately when that 
government lost the election the new Greiner Liberal Government did not 
repeal the "anti-gazumping legislation" legislation immediately, This left 
conveyancing in a most unsatisfactory situation after two Supreme Court 
decisions held that the "anti-gazumping legislation" could not be validly 
complied with.

More recently the "cooling-off" legislation commenced on the 1st October, 
1990 after the legislation had been passed through Parliament the previous 
year. Whilst the Bills were being debated in Committee in Parliament, there 
were some interesting exchanges between the Minister and Paul Whelan for 
the Opposition, including the following:-

Whelan:	"As I said in the second reading debate, clearly this is not 
going to go far enough to protect purchasers of properties 
and exclude legal obligations on vendors and agents. it si 
not adequate in the circumstances. I repeat what I said: the 
Government had a perfect opportunity to rid conveyancing 
of the evil of gazumping in the market-place by agreeing to  
the amendment to enable proper consultation with 
everybody in the industry. That opportunity has now been 
lost. So also has the possibility of cleaning up the property 
market-place...

Causley:	We have tried for two or three years in New South Wales 
to find the perfect system. I do not think it exists.

Whelan:	It does.

Causley:	In most of these legal situations one solicitor believes he 
knows the answer and another believes he has the answer, 
but never the twain shall meet. That is the present situation. 
It is one of the idiosyncrasies of the law. Lawyers make 
money arguing among themselves. They will not agree on 
this vexatious problem. As I said, I admit that this 
legislation is not perfect. Sometimes I sit in this Parliament 
and wonder about the laws which we continually bring in 
to try to protect people. I remember clearly the principle of 
caveat emptor, buyer beware, which operated when I grew 
up. It was drummed into people that they had to know 
what they were doing if they bought something. No 
amount of legislation passed by this Parliament will protect 
people from themselves, unfortunately. I for one - I know 
there are people who disagree with me - would never buy a 
property without the advice of a solicitor. Other people do 
their own conveyancing, and that is their problem. The 
vast majority of people will not bypass members of the 
legal profession. Obviously, they are the experts and I 
would use them if I were buying or selling property.

	I hope those amendments will go some way towards 
alleviating the fears of the Law Society about this 
legislation. I have had discussions at all times with all 
interested parties. The Real Estate Institute has impressed 
upon me that it is not interested in conveyancing. That does 
not seem to be getting through to the Law Society. The 
Real Estate Institute wants only to tidy up the legislation so 
that the distressing gazumping problem can be 
overcome..."

The above exchange raises a number of issues which will be considered in 
more detail below.

4.	Possible future directions for conveyancing

(a)	Generally

The United Kingdom Law Commission in its review of conveyancing had 
considered various options for changing laws or practice including:-

*	Reducing the interval of time between reaching an agreement 
subject to contract and entering into a binding contract, in order to 
restrict the chance of withdrawal by either party. For example, by 
the vendor obtaining a building condition report for the purchaser 
and vendors instructing their solicitors when placing properties on 
the market, to obtain the required searches and to make them 
available to the buyer.

*	The grant of options was not favoured because it tied up the 
property for the vendor, precluding sale to anyone else in the 
meantime.

*	Auctions and tender purchases certainly reduce the scope for 
negotiations and for gazumping. However, it was not considered 
acceptable to require sales by auction, nor did it offer an acceptable 
solution to persons intending to sell and to purchase at the same 
time. where the sale is by auction or tender, every unsuccessful 
bidder will have thrown away all the costs which he has incurred 
before making his offer, including those of any survey which he or 
his mortgagee has had carried out.

*	Buyers and sellers would probably like to be able to enter into some 
form of contract at the time when the price is agreed. The contract 
would be binding on both parties, but the buyer would be able to 
withdraw, without liability, if he could not finance his purchase or 
if the usual enquires, searches, inspections and investigations 
showed that there was something substantially wrong with the 
property. However the Law Commission was unable to devise a 
satisfactory form of conditional contract for general use in sale and 
purchase contracts.

*	Criminal sanctions were not favoured as it might render unadvised 
vendors liable to criminal sanctions and it would be only directed 
against sellers and not buyers.

*	Reimbursement of the buyer's wasted expenditure was thought not 
a means of eliminating gazumping and in the event of a dispute 
would call in for investigation the whole course of negotiations.

*	Compensation for the buyer's disappointment was also considered 
unsatisfactory, for several reasons, including the problem of 
assessing damages.

The Commission in its Working Paper concluded:

	"We recognise that that practice [gazumping] is open to criticism in 
that it enables either party to the negotiations to withdraw at any 
time before a contract is finally concluded, whether for good cause 
or not, and whether or not the other party has been induced by an 
agreement "subject to contract" to incur expenses. As recent 
experience has shown, this freedom to withdraw can give rise, 
abnormal market conditions, to public concern. But we have found 
that freedom to withdraw is a practical necessity if buyers are not to 
be placed in an exposed position.

	We have, however, been driven to the conclusion that the cause of 
the problem lies outside the law and the practice, and that there are 
clear dangers in altering a system which has been carefully 
designed, and which serves its purpose well in the vast majority of 
cases, solely for the reason that in exceptional (and perhaps 
temporary) circumstances the system is capable of being used 
unscrupulously."7

This does not sound too promising for us when we look to ways of 
improving the conveyancing system. One thing to keep in mind, however, 
is that since 1974 there has been vast improvements in computerised data 
storage and retrieval technology that could not have been envisaged by the 
Commission.


(b)	Other Australian States

It is impossible to review in any detail the conveyancing systems existing in 
Australian States, other than New South Wales. Generalising however it 
can be indicated that States such as South Australia have a simpler system of 
land title, in that the majority of land is Torrens title. South Australia is also 
developing its computer database of titles and restrictions so that land title 
information can be more readily accessed.

In Victoria the Transfer of Land Act, 1958 covers Torrens title land and Sale 
of Land Act, 1962 governs much of the conveyancing process. In a cash 
sale the real estate agent completes a contract note that is forwarded to the 
vendor's solicitor and a formal contract of real estate is prepared by the 
vendor's solicitor. This contract is sent to the purchaser's solicitors and 
must include certain prescribed information. The information required is: 
particulars of any mortgage; information as to easements and restrictions; 
details of zoning; outgoings; building approvals; notices and evidence of 
title. The purchaser must do his searches and enquiries before exchanging 
the contract of real estate although requisitions are allowed after exchange. 
The purchaser of non-commercial and non-rural land also has a three day 
cooling-off period from the signing of the contract of real estate and if 
exercised the purchaser is entitled to the return of all moneys paid less 
$ 100.00 or 0.2 % of the purchase price (whichever is greater).

The standard form of contract for the sale of land in Queensland have at 
least two interesting provisions when compared to the standard contract 
used in N.S.W. Time is expressed to be of the essence8. Thus where a 
party is in default by failure to complete the contract on the due date, no 
notice is necessary and the innocent party will be at liberty to elect 
immediately whether to repudiate the agreement and sue for damages for 
breach or sue for specific performance. This is unless the innocent party has 
waived the stipulation as to time of the essence. The other interesting 
provision is that requiring interest to be paid on any moneys not paid by due 
dates9. This type of provision is something that is becoming more prevalent 
in N.S.W. contracts.

Under Queensland conveyancing procedure, all searches appear to be 
carried out between the date of contract and completion, including a survey. 
This is the case even though Queensland purchasers appear not to have any 
special protection from patent defects i.e. a defect which the purchaser is 
likely to discover upon an inspection by the use of ordinary care. The only 
suggestion made by writers10 is that if the purchaser has any doubt about 
the state of the premises a warranty as to their condition should be included 
in the contract.

It would appear that the conveyancing systems adopted by other States, 
such as Queensland and Victoria, has not led to any simplification or greater 
sophistication of the conveyancing process and in fact has given rise to 
considerable litigation.


(c)	Increased disclosure by the vendor

There was some comment at the time of the 1986 "vendor disclosure 
legislation" that the legislation did not go far enough and require the vendor 
to annex an survey and section 317AE certificate to the contract.

A Cabinet release on the 19th July, 1989 in relation to the "cooling-off" 
legislation stated that:

	"Vendors will be required to increase their present level of 
disclosure. The objective is to have sufficient documentation with 
the contract for a purchaser to approach the lending institution 
without needing further searches or inspections (other than 
valuation) to meet the institution's requirements. The proposed 
requirements will be for pest inspection, survey, and s. 317AE 
Certificate. The details will be determined in consultation with 
industry during the drafting stage."

However the consultative committee to the Government for the proposed 
1989 amendments was of the unanimous view that the vendor disclosure 
regulations should not be amended to require that a pest inspection report, 
survey report and s. 317AE Certificate be attached to contracts for the sale 
of residential property. This was because it was felt that requiring those 
documents to be annexed would create more difficulties than their inclusion 
would be intended to resolve.11

If the objective was to protect the purchaser thought could also be given to 
requiring the vendor to annex to the contract a pest certificate and builders or 
engineers report. The vendor could then give warranties in this regard. To 
adopt this course would require consideration of a number of matters. For 
instance, the additional cost to be borne by the vendor, which would be 
passed on to the purchaser, unless the vendor changed his mind and 
withdrew the property from sale. Surveys, in particular, are expensive to 
obtain however they are now undertaken in the course of the erection of 
homes and would only need to be updated if there have been additions or 
alterations to the improvements on the property.


(d)	Central Register of Restrictions

The government must do more that pay lip service to reform of the 
conveyancing system. More importantly the government must not seek to 
make political mileage out of amendments to the conveyancing system at the 
sake of genuine reform. To ensure that definite improvements to the system 
are made change should not occur until such time as all interest professional 
bodies have been consulted.

A comment by Professor Andrew Lang is interesting in this regard:

	"Notwithstanding the Government's expressions of good intentions 
to improve conveyancing. I suspect that there is some pandering to 
sectional interests, an attempt to have the perceived problems and 
complaints "go away" and little serious attempt at real conveyancing 
reform. A much more meaningful move would be the provision of 
adequate funds, technical support and coercion to create a proper 
computerised register of restrictions and land data bank. That 
would speed up and reduce the cost of conveyancing and provide a 
real community benefit.12"

New Zealand for instance has a Statutory Land Charges Registration Act 
which allows charges against land authorised by statute but without an 
express provision for entry on title to be entered. If it can be entered on the 
register, and is not, it cannot be enforced as a charge against land. This 
covers charges from irrigation to demolition of dangerous buildings to 
termite eradication.

Some years ago the Land Titles Office commenced recording all certificates 
of title on computer. This is called ALTS (Automated Land Titles System). 
ALTS is presently13 handling more than 95 % of Torrens dealing 
lodgements and title searches. It is possible to obtain a copy of the certificate 
of title via a computer and modem connected to the Land Titles Office's 
Automated Land Titles System. It is also possible to conduct final searches 
of dealings lodged for registration. Apparently more than 40 % of ALTS 
searches are undertaken by on-line access from customers' premises. 

Copies of plans and the terms of encumbrances on the title can not as yet be 
obtained by on-line. It is proposed to expand the remote access facilities by 
progressively making plans and dealings available on-line, together with 
other records such as the Purchaser's Index and the Old System Deeds 
Index. Imaging technology is now available and is presently being used in 
South Australia to streamline the retrieval and management of titles. 
Documents and diagrams can be processed and stored in a mainframe 
computer for on-line retrieval via computer and modem.

In late 1987 the Central Register of Restrictions (CRR) was designated as a 
core project of the State Land Information System (SLIS) which is run by 
the State Land Information Council (SLIC). The objective of the project is 
to simplify conveyancing by establishing a central database of land 
restrictions, enabling enquirers to make one instead of many inquiries to 
find out if any authority has an interest in a particular parcel of land.

The initial pilot system for the CRR began operations on the 1st March, 
1990 and provides a screening service based on parish. A number of 
authorities are already participating in the scheme and have recorded their 
interests on the central database. The authorities are: AGL Sydney Ltd; 
Electricity Commission of NSW; School Education Department of 
NSW;Pipeline Authority; Mine Subsidence Board; and Health Department 
of NSW.

At present inquiries received through the Land Titles Office Property 
Information Inquiry Service are passed against the CRR and, where the 
parish is recorded as clear, a clear certificate is issued and returned to the 
applicant immediately. If an authority is recorded as not clear, or is not yet 
participating in the scheme, the inquiry is forwarded to the authority for 
normal investigation and response.

Negotiations are proceeding to incorporate additional authorities in the 
scheme and the system is being enhanced to provide for recording interests 
at the parcel level by the end of 1990. Those with on-line facilities may gain 
direct access to the CRR for obtaining clearances. Apart from the normal 
authority inquiry fee, and the existing service fee, applicants will not incur 
additional fees for the use of the CRR.

Positive steps have been made to set up such a land data base. The Land 
Titles Office has commenced to set up its data base. However a tremendous 
amount of work has yet to be done and the support of the Government is 
required.


(e)	Property shops

	"As conveyancing legislation, practice and markets evolve, many 
solicitors have felt threatened by what they see as an inevitable 
incursion into traditional areas of work for lawyers. Some have 
taken the lead from overseas jurisdictions and become involved in 
the business of real estate marketing. The involvement is by no 
means new and is not confined to high profile operations, but 
recent developments have seen it become an issue of major concern 
to members of the Society."14

Scotland is often cited as an example of the "one stop property shop" 
concept in action. Apparently some 70 % of transactions are handled by 
such businesses. However, the law societies of England and Wales, 
Ireland, New Zealand and Ontario, Canada have permitted their solicitors to 
be involved in the sale of real estate and some actively encourage their 
participation. The Law Institute of Victoria has approved a solicitor 
practising as a solicitor and also as an estate agent provided that he follows 
certain guidelines including maintaining separate trust accounts for the 
businesses.

Any serious consideration of property shops is clouded by what is seen as 
the competing interests of solicitors and real estate agents. At various times 
recently there have been proposal for "property shops" to be set up that 
provide both conveyancing and real estate agency services. In December, 
1989 the Real Estate Institute of New South Wales claimed that it would be 
establishing "its own conveyancing facility early in the new year".15 That 
claim has not yet been fulfilled and it may be that the the Real Estate Institute 
has reversed its attitude.

The Law Society of NSW has indicated that it takes the view that the selling 
of real estate is best left to real estate agents. This is an appropriate attitude 
for the Law Society to take because it is possible that the introduction of 
property shops would not increase or decrease the involvement of solicitors 
or real estate agents in conveyancing transactions. Any property shops 
established would have both solicitors and real estate agents as directors and 
shareholders.

Advocates of property shops suggest that agents have a difficulty in acting 
for the vendor when they have such intimate contact with the purchaser:-

	"The whole basis of Solicitors Property Services is that the interests 
of the general public will be better served by an agency owned by 
solicitors using qualified real estate specialists with proven 
expertise.

	By gaining control of the client at the first point of contact and 
introducing solicitors' ethical principles to the whole real estate 
transfer process, members of Solicitors Property Services believe 
they have a tremendous opportunity to prosper by giving an 
improved and complete real estate service."16

This would appear to be an interesting comment as it is based on ethical 
principles. Occasionally solicitor find themselves in a conflict situation if the 
one firm acts for both vendor and purchaser and a dispute erupts. The firm 
of solicitor must then refer both the vendor and the purchaser to other 
solicitors so that they may have the benefit of independent advice. Surely 
the potential for a conflict of interest is increased if the real estate agent, 
solicitor for the vendor and perhaps solicitor for the purchaser are all 
represented by the one firm.

It is submitted that property shops are only an alternative method of 
servicing the public and it does not follow that their introduction in N.S.W. 
would necessarily improve the conveyancing system. Solicitors and real 
estate agents should not confuse the discussion of the future direction of 
conveyancing by making threats in relation to the delivery of real estate 
services.


(f)	Settlement after registration

The present conveyancing practice in N.S.W. is for settlement to take place 
when the documents appear to be in order for registration. The risk for the 
purchaser is that the documents might not be able to effect registration but 
this risk is minimised by the purchaser doing a final search of the register 
just before settling. This system of settlement is not adopted in other 
countries and its suitability for N.S.W. has been questioned:

	"We do it the way we do because we haven't modified an old 
system settlement to accommodate the guarantee on registration 
provided by the Torrens system.

	The provinces of Saskatchewan and Alberta, where I was first 
admitted, received the Torrens system while still federally 
administered as part of the North West Territories, in 1886. The 
Canadian prairies of 1886 were much different to New South 
Wales at the time. The Canadian Pacific Railway had just been 
completed the year before. The last great Indian uprising, the 
North-West Rebellion, had been defeated and its leader, a fine 
French speaking western Canadian, hanged a week after the last 
spike joined the railroad. The Territory was almost vacant. As a 
result, neither province, established in 1905, had ever had any 
system of recorded land tenure other than Torrens system. The law 
society in each jurisdiction guaranteed both a solicitor's trust 
account and his undertaking for value. Solicitors accepted the trust 
cheques of other solicitors. One solicitor would also accept another 
solicitor's undertaking in writing that he had the money for the 
purchase in his trust account and that he would pay it out upon 
registration in accordance with the contract, or, as could occur, that 
he would accept that condition when imposed upon him by the 
solicitor for the vendor in delivering to him an executed transfer an 
where applicable, duplicate title. Banks, ever ready to be of service, 
customarily parted with an executed discharge of mortgage in return 
for an undertaking that the bank would be paid on registration of 
the discharge (the Land Titles Act in each jurisdiction impounded 
the duplicate title in the hands of the Registrar when a mortgage 
was registered). Formal settlement, almost unavoidable in New 
South Wales, never took place, except in some commercial matters, 
and then for different reasons. Following contractual agreement, 
there was an exchange of undertakings, a lodgement of dealings, 
registration, and a delivery of trust cheques. I don't recall anyone 
suggesting paying the vendor out in cash before registration.

	Is this just a curious tale from a far-off land where cowboys and 
Indians once roamed?

	I hope it is not. We don't do it that way here because solicitors 
won't accept other solicitors' trust cheques, and there is no point in 
asking the Law Society to guarantee a solicitor's undertaking for 
value. Why then, don't we fill the gap by asking the Law Society to 
act as broker - to hold the funds following settlement, and then to 
pay them out in accordance with the contract."17

The above writer went on to say that the system he puts forward has a 
number of advantages. These include protection for the purchaser, more 
speedy settlements and the entrenchment of solicitors as the conveyancing 
experts. Interestingly, the Law Society of N.S.W and an on-line computer 
bureau, Lawpoint -OTC, have recently embarked on a program to introduce 
a system of on-line Law Society sponsored settlements. This has yet to be 
established but may not be far from the above proposals.

The aim is to have a central register of restrictions that can be accessed via a 
computer from remote locations. For settlement to take place at the point 
where the central register is being accessed requires some system as 
outlined to ensure that outgoing mortgagees where paid out. Discharges of 
mortgage and any other restrictions on the title that had to be removed could 
be authorised and registered on the spot. It just may be that this on-line 
system of settlements could provide the solution to the problem of 
protecting outgoing mortgagees.


(g)	SEISIN

Regularly settlements involve a number of parties by the time incoming and 
outgoing mortgagees are included. Settlement would normally take place at 
the office of the outgoing mortgagee holding the certificate of title. Often 
times this will be a location that is neither near the vendor nor purchaser. It 
becomes quite involved to arrange settlement and delays often result.

In recent years efforts have been made to facilitate settlements by making 
provision for documents to be checked by parties before settlement and the 
settlement funds being transferred without the need for all the parties to be 
present at the one location. This appears to be a way to increase efficiency 
particularly with the advent of electronic funds transfers and computer link-
ups.


5.	Summary

The purchase or sale of real estate is a transaction of the utmost importance 
to all in the community. For many home owners the purchase of a property 
represents the largest capital expenditure they may embark upon and they 
may buy and sell property only a few times during their life. For those 
involved in commerce the purchase and sale of real estate is an integral part 
of their business. In these circumstances perfecting the conveyancing 
process should receive high priority from the government. However has not 
been the case and what we have seen is piecemeal and haphazard tampering 
with the system.

As with any human endeavour conveyancing involves a number of different 
interests, such as, vendors, purchasers, real estate agents, solicitors for 
vendors and solicitors for purchasers. However the interests of various 
government departments and neighbours should not be overlooked. 
Attempts to improve conveyancing by favouring one or other of these 
interest groups is only pandering to sectional pressures.

Unfortunately many of the parties interested in conveyancing adopt an 
adversary attitude to conveyancing. While this approach may be suitable for 
litigation it forgets that contract is a meeting of minds. Ideally parties should 
govern there relationship and be protected by the terms of the contract to 
such an extent that no party can be taken by surprise and end up with 
something that they had not contracted to buy. In fact all parties involved 
will benefit from a fair and prompt conveyancing transaction.

Another important aspect of conveyancing is that many of the problems 
experienced are generated by the system itself but by the parties having 
competing interests. The law of real property is a complex area of law and 
on occasions a party may pursue a complex point of law to achieve a result 
that they desire. This is evidenced by the standard form of contract now 
being some eight or more pages compared with a couple of pages in 1920. 
However to be fair, many aspects of day to day life and commercial 
transactions are now much more complicated than fifty years ago.

The difficulties experienced in land transactions at the present time are not 
the fault of one or other of the interested parties. The difficulties cannot 
therefore be overcome by shifting aspects of the conveyancing process from 
one interested party to another. Attempts to do so show a total lack of 
understanding of the problems and at worst purposeful ignorance of those 
problems to pursue political expediency.

It is not unrealistic in these days of consumerism to throw away any notion 
of caveat emptor and require the vendor to disclose all that there is to know 
about the property being sold. However, there may be affectations that even 
the vendor is not aware of and to augment the vendor's disclosure a central 
and comprehensive system of recording and searching for affections must 
be in place. Combine this with a Law Society sponsored settlement 
procedure and we would achieve a very efficient system of conveyancing in 
N.S.W..




1	New South Wales Conveyancing Law & Practice by Professor 
Lang [5-004].
2	New South Wales Conveyancing Law & Practice by Professor 
Lang [5-000].
3	The New Conveyancing Legislation 90/1 by Andrew G. Lang, The 
College of Law Continuing Legal Education 1990, p. 3.
4	New South Wales Conveyancing Law & Practice by Professor 
Lang [5-002].
5	Conveyancing and Property Lawyer (1972) at pp. 1-2.
6	Ibid [5-074].
7	New South Wales Conveyancing Law & Practice by Professor 
Lang [5-004].
8	Condition 26 of the form of contract approved by the Queensland 
Law Society in 1989.
9	Ibid condition 11.
10	The Standard Land Contract in Queensland by Duncan & Weld 3rd 
Ed., Law Book Co., 1990, p. 133.
11	Anti Gazumping Legislation by David De Carvalho & Bill 
Macquarie, The New Conveyancing Legislation 90/1, The College of Law 
Continuing Legal Educatin 1990, p. 50.
12	The New Conveyancing Legislation 90/1 by Andrew G. Lang, The 
College of Law Continuing Legal Educatin 1990, p. 19.
13	October, 1990.
14	NSW Law Society Journal, August, 1990 p. 39.
15	Law Society of New South Wales Caveat No. 91, 9th April, 1990.
16	Rob Knowsley, Solicitors Estate Agency Ltd  in a letter to the 
editor published in NSW Law Society Journal, October, 1990 p. 6.
17	Louis Charelbois one of the authors of Conveyancing Service 
N.S.W., Butterworths leading loose-leaf publication in this field in an 
article Proposals and Settlements: Suggestions for Change published in 
NSW Law Society Journal, August, 1990 p. 60.

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