Importance of Attachments to Section 32 Statements in Property Transactions

16. For Harry’s scenario, more important attachments to section 32 statements are still missing for
instance; the land sold to Harry had improvements which might include buildings. It is a requirement that
a construction permit be issued under the Building Act 1993 for all the structural improvements on the
land constructed within 7 seven years preceding the transfer. The building permit is necessary to show the
approval of the structures. The permit must form part of the attachments of section 32 statements given to
the purchaser.1 Where the improvements on the land related to Planning and Environment Act2 Growth
Areas Infrastructure Contribution (GAIC), the certificates or notices for such improvements must be
attached to section 32 statements.3Section 32 statements must also disclose if any of the essential services
such as water, electricity, telephone, gas and sewerage services are not connected to the Land being
purchased.4 For purposes of proving evidence of tile, there was only a search document that was attached,
yet the vendor has to attach the last conveyance of land, or any other document proving the vendor’s
title.5
The available statutory remedy to the purchaser in case of the vendor failing to disclose or attach relevant
land information or give false land information or fails to give the purchaser a section 32 statement
document signed by the vendor before conclusion of the sale contract is rescission of the sale contract.
The above failure also amounts to a statutory offence with a penalty of 300 penalty units for a body
corporate and 60 penalty units for others6
17. A damaged concrete bird bath cannot be a basis for rendering a house unfit for habitation. It was
ignored because it is party of a warranty and not a condition in a contractual term. Its breach does not
amount to repudiation or rescission of contract. Unlike if the house is damaged or gets destroyed making
it unfit for habitation then the aggrieved party will have rescind the contract and recover any amount
already paid.7 For this particular case scenario, a concrete bird bath is a minor part of the house; hence its
poor condition cannot be relied on to rescind the contract of sale. The condition of the bath constitutes a
warranty which when breached; the aggrieved party can only sue for damages as compensation.
18. Keiko’s Life tenancy will terminate and property converted to a fee simple estate owned exclusively
by her. Upon her death the property may pass to her heirs. In life tenancy one cannot sell, lease or
mortgage the estate without the approval of the remainder. When a life tenant dies, the property held
under life tenancy passes to the designated person called the remainder or if there is no remainder, the
1 Sale of Land Act 6975 of 1962 s 32E
2 Planning and Environment Act 1987 part 9B
3 Sale of Land Act 1962 s 32G
4 Sale of Land Act 1962 s 32 H
5 Sale of Land Act 1962 s 32I
6 Sale of Land Act 1962 s 32L
7 Sale of Land Act 1962 s 34

property reverts to the original owner or grantor. For Keiko’s case the estate was transferred totally to her
upon sale hence she can bequeath it to her heirs upon death.8
19. Restrictive covenants move with the title especially for the burdened land.9 The restrictive covenant in
this case will therefore be part of the new title of Keiko. The restrictive covenant will be reflected in the
register and on the folio of the showing the property title. In Victoria one can move or vary the restrictive
covenant in the following three ways; through application to the Supreme Court;10 by amendment of the
planning scheme,11 and through application for planning permit12
20. William’s mum is liable to pay duty because she declared a trust relating to property that is subjected
to duty.13 Since she registered the trust property under her name William will have to pay the duty for
transfer of land from her mum’s name to his name pursuant to the duty act which requires the transferee
to pay the duty charged for a transfer.14 The transfer of land is a dutiable transaction, conferring liability
for duty to be charged.15Duty is charged as a percentage rate on the value of the property being
transferred. The rate is charged as outlined under part 3 of the Act. 16 The amount charged is to the nearest
a dollar of the whole determined amount. For amounts exceeding $960,000, the rate is 5.5% of the
dutiable property value. The value of stamp duty will therefore be 5.5% of $1,000,000 which is $55,000.
29. Caveat emptor does not apply in this case scenario between William and Rod. The rational for not
applying caveat emptor to this transaction is as follow; it is a formal requirement that before purchasing
land in an area mapped for compulsory acquisition by government for road projects, the vendor needs to
attach a certificate of the proposed projects to section 32 statement failure to which the purchaser can
rescind the contract. Compulsory acquisition is not a subject of Caveat emptor but rather a formal
communication in form of attachments to section 32 statements.17 Compulsory acquisition by the state
forms part of notices affecting the land hence requiring disclosure to the purchaser. The notice is
disclosed as an attachment to section 32 statements. Such notice may also be served to the purchaser
pursuant to the provisions of the Land Acquisition and Compensation Act 1986.18 A notice of compulsory
8 Teece Hodgson& ward Solicitors, Estate Planning and Trusts; Life Estates; A brief Introduction
www.teece.com.au
9 Victoria State Government Planning, Legislation, Regulations and fees. www.planning.vic.gov.au (accessed 14
May 2017
10 Property Law Act 1958 s 84
11 Planning and Environment Act 1987 part 3
12 Planning and Environment Act 1987 part 4
13 Duty Act 2000 s 7(1)(b)(i)
14 Duty Act 2000 s 12
15 Duty Act 2000 s 11(1)
16 Duty Act 2000s 18
17 Sale of Land Act 1962 s 32D
18 Land Acquisition and Compensation Act 1986 s 6

acquisition served to the vendor is a ground for the purchaser to rescind the contract so long as he had not
accepted the title.19
30. Acceptance of title is a condition precedent to authorizing a conveyancer or an agent holding deposit
money pending settlement of the transaction to release the amount to the vendor. The purchaser can do
the authorization for payment on his own motion or upon vendor’s direction.20Acceptance of the title
comes after signing the sale contract document. The implication is that the purchaser cannot rescind the
contract in case of any false information or failure to supply some of the attachments to section32
statement.21Acceptance of title is a precondition for the purchaser to exercise his right to authorize
payment of deposit from a conveyancer or a stakeholder under section 27 while it is a limitation barring
the purchaser to exercise his right of rescission under section 32.
31. Requisitions on the property come after the transfer process has been finalized. Before transfer vendor
will issue mostly statements relating to evidence of title and notices affecting the title. Once the
conveyance reached completion, the purchaser may send to the vendor requisitions to help him discover
information not obtained during property inspection. The vendor’s conveyancer replies to the formal
questions asked under the requisitions and send the information to the purchaser’s solicitor. In Victorian
conveyancing law, formal requisitions have been substituted as warranties in the contract of sale.22
32. According to the Sale of Land Act, Sam is entitled to be given by the vendor, particulars of any
insurance policy for any damage or destruction of the property because the risk facing the property is on
him. He is also entitled to particulars of all residence structures contained on the land which were
constructed within the preceding six years.23Sam should also be aware that pursuant to section 34 of the
Sale of Land Act 1962. Any insurance being held by the vendor for any risk on the land should be for the
benefit of the purchaser incase the risk occurs before acceptance of title.24The vendor is therefore not
entitled to claim the insurance policy because it is meant to indemnify the purchaser for any damage
caused to the property. The purchaser also has the power to rescind the contract before accepting the title
in instances where a dwelling on the property to be bought is destroyed or damaged rendering it unfit for
habitation or occupation.
39. Under a private sale the purchaser may avoid paying the deposit money to the conveyancer’s trust
account by paying the amount directly to the seller who must deposit the money in a special purpose
19 Sale of Land Act 1962 s 32M
20 Sale of Land Act s 1962 27(1)(2)
21 Sale of Land Act 1962 s 32K (2)
22 Aman Singh, A Minimalist Guide to Conveyancing in Australia, https://credithub.com.au
23 Sale of Land Act 1962 s 32B
24 Sale of Land Act 1962 s 35(1)