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CIVIL LAW (SALE OF RESIDENTIAL PROPERTY) REGULATIONS 2004 (NO 25 OF 2004)
2004
THE LEGISLATIVE
ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
CIVIL LAW (SALE OF
RESIDENTIAL PROPERTY) REGULATIONS 2004
Subordinate Law No SL
2004-25
EXPLANATORY
STATEMENT
Circulated by authority of the
Attorney
General
Jon Stanhope MLA
The Civil Law (Sale of Residential Property) Act 2003 was passed by
the Legislative Assembly in August 2003. The Act establishes a new process for
the making and exchange of contracts for the sale of residential property and
introduces new rules for public auctions of residential property in the ACT.
The new conveyancing scheme is designed to reduce significantly the incidence of
the unethical practice of gazumping and provide increased levels of consumer
protection for both buyers and sellers of residential property. The new public
auction rules are designed to increase transparency in the auction process and
limit opportunities for dummy bidding to occur.
The object of this
Regulation is to make regulations under the Civil Law (Sale of Residential
Property) Act 2003 with respect to the following
matters:
• specifying the building conveyancing inquiry documents
that must be attached to the contract for sale, if available, as required in
subparagraph 9(1)(g)(i) of the Act;
• specifying certain requirements
that must be included in a building and compliance inspection report as required
in subparagraph 9(1)(g)(iii) of the Act;
• specifying the lease
conveyancing inquiry statements, if available, that must be obtained from the
ACT Planning and Land Authority;
• specifying certain requirements that
must be included in a pest inspection report;
• requiring building and
compliance inspectors and pest inspectors to hold professional indemnity
insurance;
• prescribing several options to accommodate proof of
identity for people bidding at auctions;
• requiring agents to keep a
bidders record and setting out specific requirements that must be kept in the
bidders record for an auction of a residential property;
• requiring
that only a seller’s agent or an employee of the agent can make entries in
a bidders record;
• transitional provisions; and
• Schedule 1,
which sets out standard conditions for the conduct of public auctions of
residential property.
This Regulation is made under the Civil Law
(Sale of Residential Property) Act 2003 including sections 7, 9, 24, 25, 31A
and 40 (the general regulation-making power).
Regulations
PART
1 Preliminary
Regulations 1 and 2 – Name of regulations and
commencement
Regulations 1 and 2 are formal requirements for all
regulations, specifying the title of the regulations and the commencement date.
Regulation 2 provides that regulations 7 (3), (4) and (5), 10 (3), (4) and
(5), 11 and 12 will commence on a day fixed by the Minister by written notice.
The remainder of the regulations will commence on
1 July 2004.
This regulation explains that the dictionary at the end of the regulations is
part of the regulations.
This regulation explains that a note is explanatory only and is not part of
the regulations.
This regulation explains that other legislation applies to an offence under
the regulations.
This regulation displaces section 47(6) of the Legislation Act 2001 to
remove the need to notify the prescribed standards. As the standards are
subject to copyright, they cannot be published on the legislation register.
Extensive consultation was undertaken with industry on this issue and
prescription of the standards is strongly supported by both industry and their
insurers. The standards are available for purchase from Standards
Australia.
Regulation 7 – Building and compliance inspection report –
Act, s 7, def building and compliance inspection report
This
regulation sets out the features that must be included in a building and
compliance inspection report and adopts the Australian Standard for property
inspections of residential buildings, as the standard to which such reports must
be prepared. The regulation provides guidance for building consultants and
building inspectors about the level of detail required and highlights specific
information that must be provided in the report.
The regulation also
modifies the standard to remove the need to provide information in the report on
minor cosmetic matters and removes the provisions relating to special purpose
reports. Special purpose reports provide information on structures outside the
competence of most building inspectors and consultants and are not necessary for
the purposes of the Civil Law (Sale of Residential Property) Act
2003.
The main requirements for a building and compliance inspection
report are:
• it must be prepared in accordance with the prescribed
standard;
• it must state the date of the inspection and the date the
report was prepared;
• it must state the insurance policy number and
expiry date, or contain a copy of the certificate of currency of insurance for
the person who prepared the report;
• it must contain particular
statements detailed in the regulations about the information that must be given
to the Territory for inclusion in a public register; and
• it must set
out the circumstances in which reliance may be had on the
report.
Regulation 8 – Building conveyancing inquiry documents
– Act, s 7, def building conveyancing inquiry documents
This
regulation lists the information that a seller must obtain from the ACT Planning
and Land Authority about the structures on the land.
Regulation 9 – Lease conveyancing inquiry documents – Act, s
7, def lease conveyancing inquiry documents
This regulation lists
the information that a seller must obtain from the ACT Planning and Land
Authority about matters that might affect the property, for example, any
development applications that may affect the property.
Regulation 10
– Pest inspection report – Act, s 7, def pest inspection
report
This regulation sets out the features that must be included in
a pest inspection report and adopts the Australian Standard for timber pest
inspections of buildings as the standard to which such reports must be prepared.
The regulation provides guidance for pest inspectors about the level of detail
required in a report.
The main requirements for a pest inspection report
are:
• it must be prepared in accordance with the prescribed
standard;
• is must state the date of the inspection and the date the
report was prepared;
• it must state the insurance policy number and
expiry date or contain a copy of the certificate of currency of insurance for
the person who prepared the report;
• it must contain particular
statements detailed in the regulations about the information that must be given
to the Territory for inclusion in a public register; and
• it must set
out the circumstances in which reliance may be had on the
report.
Regulation 11 – Requirement for professional indemnity
insurance – Act,
s 9 (3)(b)
This regulation provides
that a building and compliance inspection report and a pest inspection report
can only be prepared by someone who holds the appropriate professional indemnity
insurance. The professional indemnity insurance must provide for a minimum
limit of indemnity of $500,000 or another amount determined in writing by the
Minister.
This regulation provides that the chief executive must keep a register of
information about building and compliance inspection reports and pest inspection
reports. The register must include information about the address of the
property, the inspection date, and the name of the person who prepared the
report. This information will be kept for one year after the inspection date on
the report.
Regulation 13 – Proof of identity – Act, s 24, def
proof of identity, paragraph (c)
This regulation sets out the
forms of identity documentation that are suitable for use as proof of identity
by a person registering to bid at a public auction of residential
property.
This regulation sets out the information that must be recorded in the bidders
record and provides guidance to real estate agents about how the record is to be
made and kept.
Regulation 15 – Entries in the bidders record to
be made by seller’s agent or employee of the agent
This regulation
provides that it is an offence for a person, other than a seller’s agent
or the agent’s employee, to make an entry in the bidders record. A
contravention of this provision carries a maximum penalty of 10 penalty units
and is a strict liability offence.
This regulation provides that Schedule 1 contains the standard auction
conditions that apply to public auctions of residential property.
Regulation 17 – References to Building Act
2004
This regulation provides that a reference to the Building Act
2004 also includes a reference to the Building Act 1972. This
transitional provision is necessary due to the commencement of the Building
Act 2004 later this year and will expire on the day that Act commences.
This provision ensures that building and compliance inspection reports and
pest inspection reports prepared prior to 1 July 2004 are valid for the purposes
of section 9 of the Civil Law (Sale of Residential Property) Act 2003.
This regulation expires on
30 June 2005.
Regulation 19 –
Reports prepared before commencement of insurance requirements
This regulation provides that regulation 7 (3), (4), (5), regulation 10 (3),
(4), (5) and regulation 11 do not apply to a building and compliance inspection
report or a pest inspection report prepared before the commencement of those
regulations. This regulation expires on 30 June 2006.
Schedule 1
– Standard conditions for conduct of public auctions of residential
property
Schedule one contains the standard conditions that will
apply when conducting a public auction of residential property.