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Material fact should be defined: REINSW

3 June 2014
The Conveyancing (Sale of Land) Regulation 2010 is currently being reviewed before its scheduled automatic repeal on 1 September 2015.

After being asked to provide feedback on the current Regulation, REINSW lodged a written submission with a number suggested amendments.

REINSW CEO Tim McKibbin attended the review of the Regulation, with NSW Land and Property Information meeting with key participants involved in the sale of land.

“REINSW would like to see the ambiguity surrounding ‘material fact’ in section 52 (1) of the Property, Stock and Business Agents Act 2002 resolved,” Mr McKibbin said.

REINSW is seeking:

a) Clarity - a definition of ‘material fact’ that agents and consumers can apply in the field, currently no definition exists; 

b) Consistency – currently only an agent must make these disclosures and not the vendor or vendor’s solicitor. This inconsistency does not provide for effective consumer protection in this area and puts the agents duty to the vendor in conflict with his/her statutory duty; and 

c) Certainty - there is no prescribed way to make disclosures of material facts (written/verbal – how and when), the obvious place is the contract for sale of land. 

“The review of the Regulation is an opportunity to correct this situation,” he said.

REINSW also suggests that everyone involved in the review should discuss what enquiries a reasonable purchaser will make leading up to making an offer on a property and whether or not it is possible to include that information in the standard contract.

“If we can achieve that, then we will not only save the purchaser money but more importantly those that participated in the process and missed out.”