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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Sale of Land Amendment Bill 2016 Contents 1. Short title 2 2. Commencement 2 3. Act amended 2 4. Section 7 amended 2 5. Section 8 amended 2 6. Section 11 amended 2 7. Section 13 amended 4 8. Sections 13A to 13I inserted 5 13A. Relationship between section 13 and sections 13B to 13D 5 13B. Requirement for future lot contract to include vendor's condition 5 13C. Requirement for future lot contract to include warning 7 13D. Requirement for future lot contract to provide that deposit or other amount payable by purchaser must be paid to deposit holder 8 13E. Obligations relating to deposit or other amount payable under future lot contract 8 13F. Registrar of Titles may require audit of trust accounts 10 13G. All reasonable endeavours must be made to satisfy vendor's condition 11 13H. Consequences if vendor's condition is satisfied 12 13I. Consequences if vendor's condition is not satisfied or is taken not to have been satisfied 12 9. Section 14 amended 13 10. Section 16 amended 14 11. Section 17 amended 14 12. Section 18 amended 14 13. Section 19B amended 14 14. Part VII inserted 15 198--2 page i Sale of Land Amendment Bill 2016 Contents Part VII -- Transitional provisions for Sale of Land Amendment Act 2016 24. Transitional provisions for Sale of Land Amendment Act 2016 15 page ii Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Sale of Land Amendment Bill 2016 A Bill for An Act to amend the Sale of Land Act 1970. The Parliament of Western Australia enacts as follows: page 1 Sale of Land Amendment Bill 2016 s. 1 1 1. Short title 2 This is the Sale of Land Amendment Act 2016. 3 2. Commencement 4 This Act comes into operation as follows -- 5 (a) sections 1 and 2 -- on the day on which this Act 6 receives the Royal Assent; 7 (b) the rest of the Act -- on a day fixed by proclamation, 8 and different days may be fixed for different provisions. 9 3. Act amended 10 This Act amends the Sale of Land Act 1970. 11 4. Section 7 amended 12 In section 7(1) delete the Penalty and insert: 13 14 Penalty for this subsection: a fine of $100 000. 15 16 5. Section 8 amended 17 In section 8 delete the Penalty and insert: 18 19 Penalty: a fine of $100 000. 20 21 6. Section 11 amended 22 (1) In section 11 insert in alphabetical order: 23 24 ADI means an authorised deposit-taking institution as 25 defined in the Banking Act 1959 (Commonwealth) 26 section 5(1); page 2 Sale of Land Amendment Bill 2016 s. 6 1 approved form means a form approved by the 2 Registrar of Titles; 3 Australian legal practitioner has the meaning given in 4 the Legal Profession Act 2008 section 3; 5 deposit holder means a person -- 6 (a) who accepts or holds any deposit or other 7 amount for and on behalf of one or more of the 8 parties to a contract for the sale of land; and 9 (b) who is any of the following -- 10 (i) an Australian legal practitioner; 11 (ii) a real estate agent; 12 (iii) a settlement agent; 13 future lot contract means an executory contract for the 14 sale and purchase of one or more lots to be created by 15 subdivision where the vendor is a person -- 16 (a) who is not the proprietor of the lot or lots to 17 which the contract relates; but 18 (b) who will become, or will be entitled to become, 19 the proprietor of that lot or those lots; 20 real estate agent means a person who is licensed as a 21 real estate agent under the Real Estate and Business 22 Agents Act 1978; 23 Registrar of Titles means the person designated for the 24 time being as the Registrar of Titles under the Transfer 25 of Land Act 1893 section 7; 26 settlement agent means a person who is licensed as a 27 settlement agent under the Settlement Agents Act 1981; 28 vendor's condition has the meaning given in 29 section 13B(1); 30 working day means a day other than a Saturday, a 31 Sunday or a public holiday. 32 page 3 Sale of Land Amendment Bill 2016 s. 7 1 (2) In section 11 delete the definition of lot and insert: 2 3 lot has the meaning given in the Planning and 4 Development Act 2005 section 4 except that, for the 5 purposes of this Part, it includes -- 6 (a) a lot in relation to a strata scheme as defined in 7 the Strata Titles Act 1985; and 8 (b) a lot re-subdivided from lots or common 9 property, or lots and common property, by the 10 registration of a plan of re-subdivision under 11 the Strata Titles Act 1985 section 8; and 12 (c) an area of land represented, by or on behalf of 13 any person attempting to promote the sale of 14 that area of land, to be an area of land that will 15 constitute a lot in a proposed subdivision; 16 17 (3) In section 11 in the definition of proprietor delete "1893; and" 18 and insert: 19 20 1893; 21 22 (4) In section 11 in the definition of sell delete "meanings." and 23 insert: 24 25 meanings; 26 27 7. Section 13 amended 28 (1) In section 13(1): 29 (a) delete "5" (1st occurrence) and insert: 30 31 one 32 page 4 Sale of Land Amendment Bill 2016 s. 8 1 (b) delete "2" (1st occurrence) and insert: 2 3 one 4 5 (2) In section 13(1) delete paragraph (c). 6 (3) In section 13(1) delete the Penalty and insert: 7 8 Penalty for this subsection: a fine of $100 000. 9 10 (4) In section 13(2) delete "Western Australian Land Information 11 Authority established by the Land Information Authority 12 Act 2006 section 5." and insert: 13 14 Registrar of Titles. 15 16 8. Sections 13A to 13I inserted 17 After section 13 insert: 18 19 13A. Relationship between section 13 and sections 13B 20 to 13D 21 Despite section 13, a person may sell one or more lots 22 under a future lot contract as long as sections 13B to 23 13D are complied with. 24 13B. Requirement for future lot contract to include 25 vendor's condition 26 (1) A future lot contract must include the condition (the 27 vendor's condition) that before the close of the period 28 specified in subsection (2), the vendor will become, or 29 will be entitled to become, the proprietor of the lot or 30 lots to which the contract relates. page 5 Sale of Land Amendment Bill 2016 s. 8 1 (2) The period referred to in subsection (1) is -- 2 (a) the period of 6 months beginning with the day 3 on which the future lot contract is executed by 4 the parties or, if the parties execute the contract 5 on different days, the later of those days; or 6 (b) any other period that the parties may specify in 7 the future lot contract or in a variation to that 8 contract as the applicable period for the 9 purposes of subsection (1). 10 (3) If a future lot contract does not include the vendor's 11 condition required under subsection (1) -- 12 (a) the contract is illegal and void; and 13 (b) the purchaser may recover from the deposit 14 holder specified in the contract or from any 15 other person to whom the deposit was paid -- 16 (i) any deposit or other amount paid by the 17 purchaser under the contract; and 18 (ii) if applicable, any interest accrued on the 19 deposit or other amount. 20 (4) For the purposes of subsection (1), a vendor is entitled 21 to become the proprietor of the lot or lots to which the 22 future lot contract relates if the vendor is entitled to be 23 registered as proprietor of that lot or those lots under 24 one or more registrable instruments or under one or 25 more applications made under the Transfer of Land 26 Act 1893 which have been lodged with the Registrar of 27 Titles. 28 (5) An instrument or application that was at the relevant 29 time lodged as described in subsection (4) but was 30 defective is to be taken to give as good an entitlement 31 to be registered as proprietor as it would give had there 32 been no defect in the instrument or application if -- 33 (a) the instrument has subsequently been registered 34 or the application granted without having been page 6 Sale of Land Amendment Bill 2016 s. 8 1 returned by the Registrar of Titles or having 2 been withdrawn from the registration process; 3 or 4 (b) the Registrar of Titles certifies in writing that 5 the defect was not of a substantial nature and 6 that it has been remedied. 7 (6) A vendor who enters into a future lot contract that does 8 not include the vendor's condition required under 9 subsection (1) commits an offence. 10 Penalty for this subsection: a fine of $100 000. 11 13C. Requirement for future lot contract to include 12 warning 13 (1) A future lot contract must include a warning that 14 contains a statement to the effect that the vendor is not 15 the proprietor of the lot or lots to which the contract 16 relates. 17 (2) The warning required under subsection (1) must be in 18 the approved form. 19 (3) If a future lot contract does not include the warning 20 required under subsection (1) -- 21 (a) the contract is illegal and void; and 22 (b) the purchaser may recover from the deposit 23 holder specified in the contract or from any 24 other person to whom the deposit was paid -- 25 (i) any deposit or other amount paid by the 26 purchaser under the contract; and 27 (ii) if applicable, any interest accrued on the 28 deposit or other amount. 29 (4) A vendor who enters into a future lot contract that does 30 not include the warning required under subsection (1) 31 commits an offence. 32 Penalty for this subsection: a fine of $100 000. page 7 Sale of Land Amendment Bill 2016 s. 8 1 13D. Requirement for future lot contract to provide that 2 deposit or other amount payable by purchaser must 3 be paid to deposit holder 4 (1) A future lot contract must provide that any deposit or 5 other amount payable by the purchaser under the 6 contract must be -- 7 (a) paid by the vendor to a deposit holder specified 8 in the contract within 2 working days after 9 receipt of the payment from the purchaser; and 10 (b) held by the deposit holder on trust for the 11 person entitled to receive it under the contract. 12 (2) If a future lot contract does not include the provision 13 required under subsection (1) -- 14 (a) the contract is illegal and void; and 15 (b) the purchaser may recover from the deposit 16 holder specified in the contract or from any 17 other person to whom the deposit was paid -- 18 (i) any deposit or other amount paid by the 19 purchaser under the contract; and 20 (ii) if applicable, any interest accrued on the 21 deposit or other amount. 22 13E. Obligations relating to deposit or other amount 23 payable under future lot contract 24 (1) A vendor must pay to the deposit holder specified in a 25 future lot contract any deposit or other amount paid by 26 the purchaser under the contract within 2 working days 27 after receipt of the payment from the purchaser. 28 Penalty for this subsection: a fine of $100 000. 29 (2) If a vendor fails to comply with subsection (1), the 30 purchaser may -- 31 (a) terminate the contract by notice in writing to 32 the vendor; and page 8 Sale of Land Amendment Bill 2016 s. 8 1 (b) recover from the deposit holder specified in the 2 contract or from any other person to whom the 3 deposit was paid -- 4 (i) any deposit or other amount paid by the 5 purchaser under the contract; and 6 (ii) if applicable, any interest accrued on the 7 deposit or other amount. 8 (3) A deposit holder must -- 9 (a) operate a trust account in an ADI to which all 10 deposits or other amounts paid to the deposit 11 holder either directly by a purchaser or by a 12 vendor under subsection (1) must be deposited; 13 and 14 (b) arrange for the trust account to be audited when 15 required under section 13F(1); and 16 (c) hold the amounts in the trust account on trust 17 for the purchaser until -- 18 (i) the right to recover the deposit or other 19 amount arises under subsection (2)(b), 20 section 13B(3)(b), 13C(3)(b), 13D(2)(b) 21 or 13I(3); or 22 (ii) the settlement of the relevant future lot 23 contract; or 24 (iii) the completion of the transfer of the lot 25 or lots to which the relevant future lot 26 contract relates; or 27 (iv) the occurrence of any other 28 circumstance that would entitle the 29 vendor or purchaser to be paid the 30 deposit or other amount under the 31 relevant future lot contract. 32 Penalty for this subsection: a fine of $100 000. page 9 Sale of Land Amendment Bill 2016 s. 8 1 (4) A deposit holder must repay the deposit or other 2 amount if the right to recover the deposit or other 3 amount arises under any of the provisions referred to in 4 subsection (3)(c)(i). 5 Penalty for this subsection: a fine of $100 000. 6 (5) A deposit holder may deduct from any repayment to be 7 made to the purchaser an amount due to the vendor 8 under a future lot contract in respect of any period 9 during which the purchaser was -- 10 (a) in occupation of the lot or lots to which the 11 future lot contract relates; or 12 (b) entitled to receive the rents and profits of that 13 lot or those lots. 14 13F. Registrar of Titles may require audit of trust 15 accounts 16 (1) The Registrar of Titles may from time to time require 17 an audit of a deposit holder's trust accounts for the 18 purpose of determining compliance with the 19 requirements in section 13E. 20 (2) A deposit holder must comply with a requirement for 21 an audit under subsection (1). 22 (3) An audit under subsection (1) must be carried out by a 23 person (whether in the public or private sector) who the 24 Registrar of Titles considers to be suitably qualified for 25 the purpose. 26 (4) If the deposit holder whose trust accounts are to be 27 audited fails to arrange for the audit, then the Registrar 28 of Titles may -- 29 (a) engage a person (whether in the public or 30 private sector) who the Registrar of Titles 31 considers to be suitably qualified to carry out 32 the audit; and page 10 Sale of Land Amendment Bill 2016 s. 8 1 (b) require the deposit holder or any other person 2 to provide access to the deposit holder's trust 3 accounts and associated records for the 4 purposes of the audit or, if access is refused 5 within a reasonable time, apply to the Court for 6 an order requiring access; and 7 (c) recover from the deposit holder the costs 8 incurred by the Registrar of Titles in relation to 9 the audit (including the costs of an application, 10 if required, for an order under paragraph (b)). 11 13G. All reasonable endeavours must be made to satisfy 12 vendor's condition 13 (1) A vendor and, if applicable, a purchaser must make all 14 reasonable endeavours to ensure that the vendor can 15 satisfy the vendor's condition in a future lot contract. 16 (2) Without limiting subsection (1), the vendor must make 17 all reasonable endeavours before the expiry of the 18 period specified in section 13B(2) to -- 19 (a) obtain the necessary regulatory approvals for 20 the subdivision or proposed subdivision; and 21 (b) create and lodge the necessary plans for the 22 subdivision or proposed subdivision. 23 (3) The vendor must give the purchaser reasonable 24 information about the steps taken by or on behalf of the 25 vendor to satisfy the vendor's condition within a 26 reasonable time after receipt of a written request for the 27 information from the purchaser. 28 (4) Despite any agreement to the contrary, the provisions 29 of subsections (1) to (3) must be taken to form part of 30 every future lot contract. page 11 Sale of Land Amendment Bill 2016 s. 8 1 13H. Consequences if vendor's condition is satisfied 2 (1) This section applies if the vendor's condition in a 3 future lot contract is satisfied. 4 (2) If this section applies -- 5 (a) the vendor must give the purchaser notice in 6 writing that the vendor's condition has been 7 satisfied; and 8 (b) any deposit or other amount paid by the 9 purchaser under the contract may be applied in 10 accordance with the law. 11 (3) The notice required under subsection (2)(a) must be 12 given within 10 working days after the date on which 13 the vendor's condition is satisfied. 14 (4) If the vendor fails to give the notice required under 15 subsection (2)(a) within the time specified in 16 subsection (3), the vendor's condition is taken not to 17 have been satisfied. 18 13I. Consequences if vendor's condition is not satisfied 19 or is taken not to have been satisfied 20 (1) If a vendor's condition in a future lot contract is not 21 satisfied -- 22 (a) the purchaser may terminate the contract by 23 notice in writing to the vendor; or 24 (b) the vendor may terminate the contract by notice 25 in writing to the purchaser but only if the 26 vendor has complied with section 13G. 27 (2) If the vendor's condition is taken not to have been 28 satisfied under section 13H(4), the purchaser may 29 terminate the contract by notice in writing to the 30 vendor. page 12 Sale of Land Amendment Bill 2016 s. 9 1 (2A) To avoid doubt, nothing in this section confers on the 2 vendor the right to terminate a future lot contract if the 3 vendor's condition is taken not to have been satisfied 4 under section 13H(4). 5 (3) If the contract is terminated under subsection (1)(a) or 6 (b) or subsection (2), the purchaser may recover from 7 the deposit holder specified in the contract or from any 8 other person to whom the deposit was paid -- 9 (a) any deposit or other amount paid by the 10 purchaser under the contract; and 11 (b) if applicable, any interest accrued on the 12 deposit or other amount. 13 14 9. Section 14 amended 15 (1) In section 14(1): 16 (a) delete "5" and insert: 17 18 one 19 20 (b) delete "2" and insert: 21 22 one 23 24 (2) In section 14(1) delete the Penalty and insert: 25 26 Penalty for this subsection: a fine of $100 000. 27 28 (3) In section 14(2) delete paragraph(a). 29 (4) In section 14(2)(b)(ii) delete "(within the meaning of that term 30 in the Legal Profession Act 2008 section 3)". page 13 Sale of Land Amendment Bill 2016 s. 10 1 10. Section 16 amended 2 In section 16 delete the Penalty and insert: 3 4 Penalty: a fine of $100 000. 5 6 11. Section 17 amended 7 In section 17(1) delete the Penalty and insert: 8 9 Penalty for this subsection: a fine of $100 000. 10 11 12. Section 18 amended 12 In section 18 delete the Penalty and insert: 13 14 Penalty: a fine of $100 000. 15 16 13. Section 19B amended 17 In section 19B(1) delete the Penalty and insert: 18 19 Penalty for this subsection: a fine of $100 000. 20 page 14 Sale of Land Amendment Bill 2016 s. 14 1 14. Part VII inserted 2 After section 23 insert: 3 4 Part VII -- Transitional provisions for Sale of 5 Land Amendment Act 2016 6 24. Transitional provisions for Sale of Land Amendment 7 Act 2016 8 (1) In this section -- 9 amendment Act means the Sale of Land Amendment 10 Act 2016; 11 commencement day means the day on which sections 6 12 to 8 of the amendment Act come into operation; 13 future lot contract has the meaning given in section 11 14 (as amended by the amendment Act); 15 post-commencement future lot contract means a 16 future lot contract entered into on or after the 17 commencement day; 18 pre-commencement future lot contract means a future 19 lot contract entered into before the commencement 20 day. 21 (2) Subject to section 13, a pre-commencement future lot 22 contract continues in effect as if the amendment Act 23 had not been enacted. 24 (3) Sections 13A to 13I (as inserted by the amendment 25 Act) apply to every post-commencement future lot 26 contract. 27 28
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