Inclusions in Contracts

It is not uncommon for an agent to be provided with a Contract for the Sale and Purchase of Land and to trust that the contract provided has all of the necessary documentation contained within. Unfortunately for inclusions in contracts this may not always be the case.

It is an offence under section 63 of the Property, Stock and Business Agents Act 2002 for an Agent to advertise property for sale without a complete contract. While it may pose an issue for your agency with NSW Fair Trading, it can also call into question the validity of the Contract agreed to by the purchaser and could potentially lead to a rescission of that Contract.

To be certain you have done all that you can to ensure the purchase and sale are a smooth and binding transaction, it is most definitely best practice to go through the Contract prior to advertising and ensure that all documents are where they are supposed to be.

The Conveyancing (Sale of Land) Regulations 2017, schedule 1, sets out the documents that are required:

1. A planning certificate for the land (unless the land is not within a local government area) commonly referred to as the 10.7 certificate
2. Diagrams from a recognised sewerage authority (if available from the authority in the ordinary course of administration) that purport to show the following:
   (a) the location of any sewer lines on the land upstream of the point of connection to the authority’s sewer main (including the point of connection),
   (b) the location of the authority’s sewerage infrastructure for the property downstream of the point of connection to the authority’s sewer main (including the point of connection).
3. If the Contract relates to land:
   (a) a property certificate, and
   (b) a copy of a plan for the land issued by the Registrar-General (except in the case of land that is the subject of a limited folio).
4. Copies of all deeds, dealings and other instruments that are lodged with the Registrar-General:
   (a) easements
   (b) profits à prendre (a right to take from the land owned by another person part of the natural produce grown on that land or part of the soil, earth or rock comprising the land)
   (c) restrictions on the use of land
   (d) positive covenants imposed under Division 4 of Part 6 of the Conveyancing Act 1919

When dealing with land that is strata, community title or leasehold property, there is an additional list of documents that also need to be added to the Contract. As you can see, it is not a very long list of documents that need to be added and not at all outside of the knowledge base of the agent to be able to check their inclusion.

Double checking your contracts could mean the difference between a valid sale and a valid rescission.