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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:
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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);
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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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)".
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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
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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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