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Off-The-Plan Purchasers Beware – Registration of Plan of Subdivision

There are a number of Acts and other legal authorities that govern the subdivision of property and off-the-plan property sales in Victoria e.g. Subdivision Act and the Sale of Land Act 1962. The Transfer of Land Act (TLA) is also relevant but only to the extent that once a plan of subdivision is registered, the titles to all the lots created under the plan become titles issued under the TLA.

Depending on the matter at hand case law may also provide authority where there are disputes about the subdivision and registration of the plan or other matters.

Purchasers should be very cautious in regards to their new off-the-plan purchase. Generally settlement of these contracts are subject to 2 conditions being satisfied;

  1. The registration of the plan of subdivision with the Registrar of Titles; and
  2. The issue of the occupancy certificate.

Settlement will usually occur either 14 days or 21 days after both of these conditions being satisfied.

Purchasers should read or seek advice on the special conditions as they form part of the contract. Among other things, there may be special conditions that stipulate a time frame in which the plan of subdivision and/or the occupancy certificate must be registered if any failure to do so the vendor or the purchaser may rescind the contract.

There is also a general protection for purchasers under s9AE(2) of the Sale of Land Act 1962 where there is no time period stipulated in the Contract. The default time period set by the Act in 18 months.

Purchasers should be CAUTIOUS as once the plan of subdivision is registered the right to rescind the contract generally ends even if the plan of registered outside the time stipulated by the Contract or the Act.

There is also case law surrounding the ability of vendor’s to extend the period of time stipulated by the Contract and the principals are outlined in cases such as Allen & Ors v Harofam Pty Ltd; Scherman v Harofam Pty Ltd and Solid Investments Australia Pty Ltd v Clifford[2010] 27 VR 41.

SALE OF LAND ACT 1962 - SECT 9AE

Rescission of prescribed contract

S. 9AE(1) amended by Nos 53/1988 s. 45(Sch.2 items 60, 61), 56/2012 s. 27.

    (1)     If the vendor under a prescribed contract of sale of a lot fails to comply with section 9AA(1) or (2) or  9AB the purchaser may rescind the contract of sale at any time before the registration of the plan of subdivision.

S. 9AE(2) amended by Nos 53/1988 s. 45(Sch.2 items 60, 62) (as amended by No. 47/1989 s. 19(zd))48/1991 s. 55(3)(a)(b).

    (2)     If the plan of subdivision is not registered within 18 months after the date of the prescribed contract of sale of a lot on that plan of subdivision, or, if the contract specifies another period, before the end of that specified period, the purchaser may, at any time after the expiration of that period but before the plan is so registered, rescind the contract.

Source: http://www5.austlii.edu.au/au/legis/vic/consol_act/sola1962100/

Dinesh Weerakkody is the Principal Legal practitioner at D LEGAL Barristers & Solicitors
For further advice and consultations please contact us via http://www.dlegal.com.au/contact-us.html

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