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/ Diploma in Law /

LEGAL PROFESSION

ADMISSION BOARD

/ /

LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

14 CONVEYANCING

WINTER SESSION 2017

This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives / 1
Lecturers / 1
Assessment / 1-2
September 2017 Examination / 2
Lecture Program
Prescribed Topics and Course Outline (Course Outline cont. on page 9) / 3-6
Weekend Schools 1 and 2 / 6
Texts and Materials / 7
Compulsory Assignment / 8
Assignment Question / 8
Sample Examination Question / 8
Prescribed Topics and Course Outline (Cont. from page 3) / 9-16

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LAW EXTENSION COMMITTEE

/

WINTER 2017

14 CONVEYANCING

COURSE DESCRIPTION AND OBJECTIVES

The objective of the Conveyancing course is to familiarise students with the concept of conveyancing. Particular emphasis is placed on the structure of the Standard Form Contract for Sale of Land 2016.

Whilst the course is to some degree involved with practical issues of conveyancing, a good deal of relevant case law is discussed in order that students will be able to recognise problem areas in practice. The course also provides for a consideration of various issues of contract law, equity and planning law.

LECTURERS

Mr W A Henningham, PSM, LLB (Syd)

Mr Bill Henningham, who teaches the evening lecture students, is a solicitor and mediator in private practice who has long specialised in conveyancing. He also specialises in local government and environmental planning law which has important implications for conveyancing. Mr Henningham has written and addressed conferences and seminars on topics covered in the course. He is the author of chapters on Local Government Law and Practice in Lexis-Nexis Local Government and Planning Service (NSW) Vol C and is the teacher of the subject Local Government and Planning in the Diploma in Law course.

If you wish to discuss any aspect of the subject matter of the Conveyancing course, you may consult Mr Henningham, whose telephone number is (02) 9427 0519.

Mr D H W Ross, LLB (Syd)

Mr David Ross, who teaches the external (Weekend) students, has been a solicitor in private practice for over 50 years and has also long specialised in conveyancing practice. In 1996 he taught Property Law and Commercial Law at Seaforth TAFE and has been the weekend lecturer and examiner in Conveyancing since Winter Semester 2010.

His experience in also practising in Business and Commercial Law and in related litigation gives him a very relevant understanding of the pitfalls which can arise in conveyancing practice. Mr Ross’s three years of legal practice in Byron Bay gave him a valuable insight into legal issues faced by rural conveyancing practitioners. He can be contacted by leaving a message with (02) 9546 7362.

ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.


Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.

Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be submitted by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

SEPTEMBER 2017 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics set out and referred to on pages 3–6 and 9–16 in this Subject Guide.

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed cases contained in the Law Extension Committee's course outline.

Please contact the Legal Profession Admission Board for any enquiries in relation to examinations.

LECTURE PROGRAM

Lectures in Conveyancing will be held on Mondays, commencing 8 May 2017, from 6.00pm until 9.00pm. A map of the University of Sydney’s main campus is included at the back of the Course Information Handbook.

PRESCRIBED TOPICS AND COURSE OUTLINE
(COURSE OUTLINE CONT. ON PAGE 9)

WEEK

/ TOPICS / KEY READING / VENUE
1
8 May / Introduction to conveyancing – what transactions are involved
Residential Conveyancing Protocol entered into by the Law Society of NSW and the Real Estate Institute on behalf of their members: see
www.lawsociety.com.au
Formation of an enforceable contract -
what is required? exchange of contracts; what is involved in a typical conveyancing matter / Skapinker, (5th ed 2010) Ch 1
Rossiter, Ch 1 / New LS ASR
342
2
15 May / The Standard Form of Contract for Sale of Land, 2016 ed., (CSL) formerly 2005 and 2014 editions.
The Law Society of NSW and the Real Estate Institute of NSW have issued the new Contract for Sale and Purchase of Land 2016 Edition in electronic format only. The 2005 and 2014 Editions of the Contract for Sale of Land are no longer available for purchase.
A Summary of the Main Changes in the 2016 Edition prepared by the Law Society appears on the LEC Webcampus. A summary of the main changes in the 2014 ed (now incorporated into the 2016 ed) also appears on the LEC Webcampus.
Subject matter of the sale
Caveat emptor and the vendor’s general law duty of disclosure
Vendor’s statutory duties of disclosure
Consequences of active concealment of defects
What is a “proposal” in the context of adverse affectations?
“Prescribed documents” under S 52A of Conveyancing Act 1919 and Conveyancing (Sale of Land) Regulation 2010 (CSoL).
Prudent pre-contract inquiries and actions by a purchaser and a purchaser’s solicitor;
Unfulfilled conditions of consent;
Whether to choose E-Conveyancing; see
Cl 30 CSL
Requirements under the Home Building Act 1989 (as amended 2014) and Swimming Pool Act 1992-2012 and Swimming Pool Regulation 2008-2016-2016Act 1992 and Swimming Pools Regulation 2008 / Skapinker, Ch 3
Note that the 2010 ed of Skapinker cannot canvas the 2014 contract amendments.
Skapinker, Ch 3
Rossiter, Ch 5
Skapinker, Ch 4
Note: 2010 ed of Skapinker (5th edition) quotes superseded editions of the Conveyancing (Sale of Land) Regulation (CsoL) and the CSL.
Henningham, Planning Law implications for conveyancing – negotiating the planning control minefield (LEC Website) / New LS ASR 342
3
22 May / Deposit and deposit-bond alternatives to a cash deposit; cll 2 & 3 CSL
Deposit and penalty; status of vendor’s agent holding the deposit as “stakeholder”; forfeiture of deposit;
issues related to part-paid deposits; “cooling off” provisions; vendor’s duty of care pending completion
Status of vendor between exchange and completion – trustee?
Passing of risk and protecting purchaser’s beneficial interest prior to completion
Need for vendor to maintain comprehensive insurance until after completion and desirability of purchaser obtaining comprehensive “replacement” cover after exchange of contracts
Caveats by purchasers and their relevance. In what circumstances should they be lodged including compensation from caveator who lodges a caveat without reasonable cause. Do caveats have any limitations? Priority Notices under latest legislation – when should they be used. See adjoining column / Skapinker, Ch 7
Rossiter, Ch 4
Skapinker, Ch 8
Skapinker, Ch 8
Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)
Skapinker, Ch 8
Conveyancing Act Ss. 66S – 66X (cooling-off); 66J – 66O (passing of risk; rights if property damaged pre-completion.
Real Property Act Ss. 74F et seq; (Caveats); Ss. 74S - 74Z (Priority Notices) / New LS ASR 342
4
29 May / Requisitions and objections –
cl 5 CSL Purchaser’s right to make requisitions;Vendor’s responses to requisitions et al.
Vendor’s entitlement to rescind (cl 8.1).
Misrepresentation at general law; Misleading and deceptive conduct in conveyancing transactions - Australian Consumer Law (ACL).
What third parties could have actionable liability arising from misleading or deceptive conduct?
Unfair Contract Terms under Consumer Contracts and Small Business Contracts where ‘standard form contract’ is used. / Skapinker, Ch 10; Rossiter, Ch 6
Henningham, More Pitfalls for the Unwary Conveyancing Practitioner
Izaz Khan, Barr, Misrepresentations in Land Transactions” (LEC Website)
Stephen Climpson, The Impact of Misleading and Deceptive Conduct on Contracts for the Sale of Land
Competition & Consumer Act 2010 (replacing Trade Practices Act 1974) establishes ACL in Schedule 2
ACL as amended by Treasury Legislation Amendment (Small Business & Unfair Contract terms) Act 2015 / New LS ASR 342
5
5 June / Title defects and their effect upon a vendor’s title
Rule in Flight v Booth; purchaser’s remedies for undisclosed defects; Undisclosed stormwater mains
What is a material or substantial defect?
Prescribed term (CSoL Reg Sch 2) in contract re encroachments
Prescribed warranties in contracts (CSoL Reg Sch 3)
Errors and misdescriptions (cl 6 of CSL)
Claims under cl 7 of CSL
Consequence of changes in planning controls after issue of s 149(2) cert. attached to contract
Clause 8.2 of CSL now provides Purchasers with expressed rights of termination for essential breach. / Skapinker, Ch 5; Rossiter, Ch 5
Skapinker, Ch 6
Skapinker, Ch 11
Rossiter, Ch 8
Note: 2010 ed of Skapinker quotes earlier editions of the CSoL Reg / New LS ASR 342
6
12 Jun / No Lecture due to Public Holiday
Study Break: Saturday 17 Jun – Sunday 2 July 2017
7
3 July / Survey certificates and their importance
Building certificates – relevance to prescribed warranty in the context of unlawful building work; relevance to regularisation of breaches of Planning Law.
Section 52A of the Conveyancing Act cannot be excluded
Inquiries and adverse affectations Sch 3 CSoL CSL Reg
Purchaser’s right to rescind and limitations on rights
Doctrine of election to affirm contract.
What constitutes an affirmation?
Does the purchaser’s solicitor have any responsibility to enquire in relation to surrounding properties? How should a solicitor for a purchaser deal with a request that such enquiries be made? / Skapinker, Ch 5
Skapinker, Ch 4
Skapinker, Ch 12
Skapinker, Ch 6.40 et seq
Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website) / New LS ASR 342
8
10 July / Preparing for completion
Rates and adjustments; what constitutes vacant possession
Existing uses; what are the duties of a solicitor acting for a purchaser if it is asserted that there is an existing use?
E P & A Act 1979 Ss. 106 – 109B
Heritage and conservation issues;
Issues relating to s 149(2) & (5) EP&A Act certificates;
Should a Vendor attach a S.149(2) & (5) certificate to the contract.
Should information under s149(5) be obtained by purchaser if not provided by the vendor?
Occupation certificates, what is their importance? EP & A Act 1979 S 109M
Status under Planning Law of restrictive covenants and easements. Can their operation be suspended?
Suggested special conditions. What special conditions should be rejected by a solicitor for the purchaser?
Is interest required to be paid on the balance of purchase price after the completion date a penalty? Note interest rate guideline in cl 18.5.2 CSL. / Skapinker, Ch 14;
Butt, Ch 14 [1447], [20116] Rossiter, Ch 8; Skapinker, Ch 13
Henningham, Exemptions from Rating and other Rating Issues (LEC Website)
Henningham, Planning Law implications for conveyancing – negotiating the planning control minefield (LEC Website)
Henningham, More Pitfalls for the Unwary Conveyancing Practitioner
(LEC Website)
Butt, Ch 7 [17138-17142], [16134] / New LS ASR 342
9
17 July / Time for Completion of Contract
Difference between common law & equity
Making time of the essence to complete.
Precautions on behalf of purchaser prior to completion
Requirements for valid notice to complete;
Notices to perform; options for party if the other fails to complete - termination; damages; specific performance; / Skapinker, Ch 15;
Rossiter, Chs 4, 6, 7
Skapinker, [8.35]; Rossiter, Ch 7
Butt, [2048-2049]
Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website) / New LS ASR 342
10
24 July / Remedies including rescission and termination, & specific performance.
In what circumstances can repudiation of a contract be inferred?
Alternative dispute resolution
The options for consensual resolution of conveyancing disputes / Skapinker, Chs 16, 17, 18;
Rossiter, Chs 1, 2, 8
CSL cll 7, 8.1, 8.2, 9, 17.3, 19, 23.9, 27.4-27.6, 28.3, 29.5-29.8. / New LS ASR 342
11
31 July / The elements of Torrens Title
Strata Title and Community Title
“See legislation referred to on page 7 under relevant legislation”
Mortgages, leases, easements and other interests
What is e-Conveyancing and how will it provide an electronic environment for participating practitioners to conduct the financial settlement of conveyancing transactions. (Cl 30 CSL). / Butt, Ch 20
Butt, Ch 21
Butt, Ch 18, 15, 16
For Registrar General’s FAQs on
e-conveyancing visit: http://rgdirections.lpi.nsw.gov.au/e-dealings/faqs
For relevant and recent comment on Electronic Conveyancing by Gabrielle Lea, a Sydney Solicitor employed by the Law Society of NSW, visit: https://www.lawsociety.com.au/resources/areasoflaw/ElectronicConveyancing/index.htm / New LS ASR 342
12
7 Aug / Revision which will take the form of a review and discussion of the whole subject. / New LS ASR 342

WEEKEND SCHOOLS 1 and 2

There are two weekend schools principally for external students. Lecture students may attend on the understanding that weekend school classes aim to cover the same material as provided in weekly lectures and are primarily for the assistance of external students. External students should refer to the detailed material in the Prescribed Topics and Course Outline.