Conveyancing

Many contracts for the sale of land include a ‘subject to finance’ clause giving the purchaser the right to end the contract if they cannot get loan approval. The clause imposes a number of things that the purchaser must do, usually within a tight time frame, before they can use the clause to end the contract. 

When drafting a contract of sale of land, be careful not to inadvertently create a voidable terms contract.

Before 1 July 2026, an owner-builder selling a home had to be covered by the required domestic building insurance before sale and give the purchaser (prior to sale) a certificate of that insurance (former section 137B(2)(b) of the Building Act 1993 (Vic) (Building Act)). That insurance could only be claimed on if the owner-builder died, disappeared or became insolvent.

From 1 July 2026, section 137B(2)(b) requires the vendor to have complied with the requirements of the statutory insurance scheme (SIS)¹. The SIS is a scheme of first resort, meaning it doesn’t require the owner-builder to be dead, missing or insolvent before making a claim.

Great news for purchasers, right? Not necessarily, as the SIS is only required for a more limited range of owner-builder work when compared to the old regime.

Great news for vendors then? Again, no. The legislation solves some problems with the previous section 137B but owner-builder requirements still need to be carefully navigated prior to selling a property.

A section 32 that gets the owner-builder position wrong lets the purchaser avoid the contract at any time before settlement (section 137B(3)). The vendor also commits an offence (section 137B(2)). The LPLC sees many claims each year where the vendor’s solicitor did not properly advise their client about what an owner-builder vendor needs to include in the vendor statement, and these claims have been increasing as the property market has softened.

Legislative references in this article are to the Building Act, unless otherwise specified.

Practitioners should be aware of foreign investment risk management issues.

Each year the LPLC receives claims from practitioners who prepared defective section 32 statements which caused their vendor clients to suffer loss. This is because a defective section 32 statement entitles a purchaser to terminate the contract of sale of land at any time before settlement. Almost all of these claims were preventable.

Preparing a compliant section 32 statement takes legal knowledge, current resources and disciplined systems. This guide sets out the disclosure obligations under the Sale of Land Act 1962 (Vic) (SL Act) section by section, maps each obligation to the standard Law Institute of Victoria (LIV) section 32 statement, and gives a practical step for each one. It finishes with some suggested checks to run before the statement is signed.

A purchaser can walk away from the sale at any time before completion if the owners corporation does not hold the required common property insurance. The risk is highest in small subdivisions that have never met and look dormant. Practitioners acting for vendors should consider the insurance position for all properties that have common property before the section 32 statement is prepared.

This guide covers the disclosure obligations under the Sale of Land Act 1962 (Vic) (SL Act) when a vendor is selling a lot in a subdivision regulated by the Owners Corporations Act 2006 (Vic) (OC Act).

Land Services Victoria no longer issues duplicate paper certificates of title for properties and is slowly phasing them out in favour of electronic certificates of title (ECT). However, conveyancing practitioners still need to consider what to do once a paper certificate of title is converted into an ECT during a property transaction. Critically, once a paper certificate of title is converted to an ECT (via a nomination in PEXA), the paper certificate of title is no longer valid.

A client's daughter calls your office asking you to release her elderly mother's paper certificate of title so she can "get the property sorted." She says she has power of attorney. Your receptionist is about to hand it over. What should happen before that title leaves your deeds system?

Releasing a paper certificate of title to the wrong person can enable a fraudulent or improper dealing. The LPLC has seen situations where practitioners released a title to a co-owner without the other co-owners' consent, or to a person who was not entitled to receive it, resulting in loss to registered proprietors.

There is a good reason why you should always include a water information certificate in a section 32 statement. The certificates will show the water and sewer lines, which are unregistered easements, and need to be disclosed.

The decision to serve a default or rescission notice requires a clear understanding of what outcome the client is trying to achieve. Ambiguous wording or poor communication risks ending the contract before the client wishes. This article looks at when to serve which, and some of the common pitfalls involved.

Acting in a conveyancing transaction includes certifying that identity and authority have been verified and where there is a paper title, that it has been obtained and either destroyed or invalidated. These certifications need to be taken seriously and only given if they are true. In the case of Trani & Anor v Trani & Ors (No 2) [2019] VSC 723 the Court found a conveyancer was liable for providing false certifications as to identity and authority to the Registrar of Titles.

Deposit bonds in conveyancing transactions require solicitors to consider and manage more issues than a cash deposit. In particular, the date when a deposit bond may expire.

The Victorian Legal Services Board and Commissioner has published a guide, E-Conveyancing: Regulatory Guidelines that contains the regulator’s expectations of practitioners conducting electronic conveyancing.

Practitioners may need to make changes to their current conveyancing practices in light of the regulator’s expectations. This article highlights 3 important areas covered by the guide and offer some risk management suggestions.

Subscribing to electronic conveyancing is not a ‘set and forget’ process but requires checking regularly that you are complying with your subscriber obligations, particularly in relation to client authorisation, verification of identity, right to deal, document retention and system security. Regular checking should also mean that you are well prepared for a compliance examination and the subscriber review process.

*The ARNECC Model Participation Rules, Operating Requirements and corresponding Guidance Notes may have been updated since this article was published. Please refer to their most recent versions via the links provided at the bottom of this page.

When preparing a S32 statement section 32I of the Sale of Land Act 1962 (Vic) requires that a diagram location document, identifying the land and location, be attached. How do you determine what the diagram location document is? A particular section of the Register Search Statement holds the key.

The LPLC has received claims against practitioners who expected a duty exemption on the transfer of farming real property but failed to meet all the necessary criteria, resulting in the exemption being denied.

When terminating a contract for the sale of land, the case of Willis v Crosland [2021] VSCA 320 makes it clear that practitioners for both parties need to understand the effect of express contractual provisions entitling a party to terminate the contract, and to read those provisions very carefully to ensure they have been complied with.

Obtaining a council building information certificate to comply with section 32E of the Sale of Land Act 1962 (Vic) can reduce the risk of a purchaser voiding a contract of sale of land.

'Foreign purchaser additional duty' (FPAD) provisions have now been in place in the Duties Act 2000 (Vic) (Vic Duties Act) since 2015.

From 1 March 2020, the Victorian State Revenue Office (SRO) changed its approach to FPAD in the context of acquisitions of residential property made by 'family' discretionary trusts. The change of approach has meant there has been, and will be, an increase in discretionary trusts found by the SRO to be foreign trusts liable to pay FPAD when acquiring residential property.

Practitioners practicing in conveyancing matters need to be aware of the way the FPAD regime works for discretionary trusts so that clients can be advised of its application.

Changes to stamp duty and the introduction of an annual property tax on commercial and industrial land under the Commercial and Industrial Property Tax Reform Act commenced 1 July 2024. Practitioners acting in matters involving commercial or industrial land in Victoria need to be aware of the full extent of these significant reforms.

LPLC has provided comprehensive information about the reforms in the article Commercial and Industrial Property Tax reform in Victoria — What you need to know, and a webinar Commercial and Industrial Property Tax (CIPT): Navigating the new reform.

Here we provide some additional answers to specific questions we have received from practitioners. We recommend practitioners use this information to gain a full understanding of the reforms and their practical application.

The Commercial and Industrial Property Tax Reform Bill (the Bill) was introduced into the Victorian Parliament on 20 March 2024. The reforms are expected to pass into law in early May before commencing on 1 July 2024 (Note: the Act was passed in the same terms as the Bill).

Failing to properly identify and manage accessory lots contained in strata or cluster plans can lead to claims against solicitors

Conveyancing solicitors need to be aware of key amendments that have been made to the REIV / LIV Contract of Sale of Land.

Verifying the identity of the client is a strict requirement for practitioners and conveyancers when handling property transactions.

Early release of a deposit under Section 27 is a statutory right—not a contractual one—and must be strictly followed.

Does your firm have effective policies for maintaining the security of digital certificates? Are digital certificates being shared within your firm? Below are some of the risks and consequences and what you should do about it.

Your client is purchasing an investment property, and the client is aware that they will be liable for land tax once settlement goes through. Settlement completes, the transfer is lodged and registered, the notice of acquisition is submitted to the council and water authority, and the file is closed.

Several years later, the client receives an unexpected land tax surcharge assessment from the State Revenue Office (SRO), including penalties and interest. The practitioner knew the client acquired the property as a trustee of a trust, but failed to lodge an LTX-Trust-08 form (also known as a Notice of Trust Acquisition or NOTA) after settlement.

Practitioners should always be alert to signs that an elderly or vulnerable client’s transaction is being facilitated by another person with a direct or indirect interest.

Common questions about the Vacant Residential Land Tax (VRLT) introduced in 2023 are answered below.

The LPLC continues to see claims involving land transfer duty arising from the nomination of a substitute purchaser or additional purchaser. Nominations are not just an administrative item in a conveyancing transaction. If not managed properly, nominations may result in more than one assessment of duty, which is commonly referred to as “double duty”.

Almost all claims that the LPLC has seen relating to double duty could have been avoided or successfully defended had the solicitor:

• Warned the purchaser at the commencement of the retainer about nomination, double duty and timing risks; and
• Provided specific written advice before effecting the nomination.

If your firm is considering acting for itself to recover unpaid fees or defend a dispute, an incorrect assumption about recoverable costs can undermine that strategic decision and lead to adverse costs outcomes. The High Court has clarified whose legal professional costs will and won’t be recoverable, even where the firm is successful.

Practitioners should not act for all family members in intra-family asset transfers.

Your client calls to say their former partner's solicitor has released $180,000 that was being held on trust for both parties without your client's consent, and the money is gone. Your client wants to know who is responsible. In most cases, the answer is the solicitor who released the funds.

The new Windfall Gains Tax (WGT) introduced by the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Act 2021 commenced on 1 July 2023 and in broad terms, applies to land in Victoria rezoned after 1 July 2023.

Practitioners need to be across this tax as it carries significant risk for clients and practitioners if it is not managed correctly.

We've put together information and resources to help practitioners understand the legislation, manage the associated risks and provide guidance about how to act now to avoid surprises later.

Practitioners should always be mindful of the potential tax consequences of a transaction. Each year the LPLC sees claims where the practitioner has overlooked the tax implications of a matter or considered that it’s not their role to advise on tax issues or recommend that the client obtain tax advice from a tax lawyer or accountant.

The Windfall Gains Tax (WGT) under the Windfall Gains Tax Act 2021 (Vic) (WGT Act) commenced on 1 July 2023 and in broad terms, applies to land rezoned after that date.

Keep limitation periods at the forefront of your mind when taking instructions to act in indemnity insurance claims. Read the policy wording carefully to determine when the insurer’s liability arises and clarify quickly when the damage occurred.

Off-the-plan purchases generate conveyancing claims. The LPLC has published a new guide for practitioners acting for purchasers in these transactions.

Practitioners advising on or transferring shares in a private company or units in a unit trust should be alert to potential duty consequences.

Here are some handy hints to help you navigate your next GST question. The starting point for all GST questions should be: is the vendor registered for GST or required to be registered?

Significant changes to the unfair contract terms (UCT) regime in the Australian Consumer Law commenced on 9 November 2023. Almost all Australian businesses are affected by the UCT regime and should review their standard form consumer contracts and small business contracts to ensure they do not include any 'unfair contract terms'. Legal practitioners providing contractual advice are expected to be aware of and understand the changes to advise their clients. Failing to do so may result in severe consequences for clients (including substantial penalties) and expose practitioners to professional negligence claims.

From 1 January 2026, more Melbourne properties are subject to the congestion levy. This article provides a summary of key risks and example wording to help conveyancing solicitors identify and manage congestion levy obligations.