Estate Agents Right to Claim Commission

The Court of Appeal of the Supreme Court Victoria determined in favour of a real estate agent to claim a commission of $16,650.

The case involved the agent procuring an offer from a buyer for $450,000, in accordance to the Authority, but the Vendor refused to accept the offer. No contract resulted.

The REIV Authority was endorsed with

"NO SALE NO CHARGE" and
"NO SALE - NO CHARGE FOR CONVEYANCING."

Question. Was the agent entitled to his commission?

A summary of the case can be found here Moustafa

The full text of Court of Appeal case of Real Estate City vs Moustafa 2005 can be found here

e-Conveyancing UK

The strategy for the implementation of e-conveyancing in England and Wales can be found on this website at

http://www.landregistry.gov.uk/e-conveyancing/publications/

definition of conveyancing

Conveyancing is the act of transferring the ownership of a property from one person to another. The buyer needs to ensure that he or she gets good 'title' to the land; i.e., that the person selling the house actually has the right to sell it. The system of conveyancing is designed to ensure that the buyer gets the land together with all the rights that go with it, and knows about any restrictions in advance.

A typical conveyancing transaction, whether a sale or purchase, contains two major 'landmarks', which are exchange of contracts and completion, plus the three stages: before contract, before completion and after completion.

source Wikipedia

Owner Builders - Traps & Pitfalls

In Victoria, it is imperative that a vendor who has performed building works as an owner builder, if selling, must provide a defects report and warranty insurance before the execution of a Contract of Sale.
A couple of recent case studies of "the owner builder who wouldn't" and "the owner builder who didn't" can be read here case studies

Full Steam Ahead for EC (Victoria) !!

"Following a lull during the winter months, the EC project has come out of hibernation and is gearing up for the next challenging phase, with two of the country’s major banks agreeing to pilot the system in Victoria."

The EC system will be piloted in two phases:
· Stage 1 will see the processing of limited transactions(discharges and mortgages)by selected pilot subscribers in the latter half of 2006;
· Stage 2 will provide electronic settlement and a fully functional system. It will also include the processing of transfer transactions by the Financial Settlement Manager and pilot users in 2007.

Land Exchange EC Newsletter Oct 05

You have to ask yourself about the credibility of any timeline announcements coming from EC Vic. BH

The Lending Industry XML Initiative

The Lending Industry XML Initiative (LIXI) is a non-profit, independent industry organisation established to utilise new technologies for the removal of barriers to data exchange within the Australian lending industry. Through the work of LIXI it is intended that member organisations will be able to provide better and faster services to their customers at lower cost. This is being achieved through the ongoing development of platform independent, open standards for the exchange of lending-related data to replace numerous incompatible and proprietary approaches. As LIXI's name suggests, these standards are being built upon XML (eXtensible Markup Language), an enabling technology generally accepted as a vital component in the future of electronic commerce.

To subscribe to their newsletter www.lixi.org.au

Hobart Company Develops Unique Electronic Conveyancing System

Minister for Economic Development Lara Giddings presented Hobart Company Capital 3 with an Innovations Grant of $150,000 to further develop a fully electronic property conveyancing system, ConveyIT.

“ConveyIT is a unique tool believed to be the first in the world that takes conveyancing from a paper based system to an online process,” Ms Giddings said.

“ConveyIT provides solicitors and others involved in property conveyancing such as Real Estate Agents with instant access to information required to complete a conveyance.

“This ensures that it can be done quicker and cheaper.

“The beauty of ConveyIT is that it can communicate online with other third parties integral to the process,” she said.

ConveyIT developers have worked closely the Law Society of Tasmania, Real Estate Institute of Tasmania the Lands Titles Office, and other key third parties to ensure the solution meets the requirements of the marketplace.”

“ConveyIT represents a unique first with significant growth opportunities, a proven market, quantifiable customer benefits and high potential returns,” Ms Giddings said.

Capital 3 CEO Paul Gregg said, “We are thrilled to be launching ConveyIT right here in Tasmania. Other Australian states and territories and potentially other countries that have a common law legal system will be targeted shortly.”

“We expect significant growth in the years ahead and its success should enhance employment opportunities in Tasmania,” Mr Gregg said.

ConveyIT is available online at www.conveyit.com.au

UK eConveyancing - Steve Kelway Land Registry

2005 October: After a long wait, the Land Registry has reached a stage where it has a clear vision of what it intends to introduce and when it thinks it will be able to do this. The first element, the chain matrix, is likely to be piloted next year, with a basic electronic conveyancing service and an electronic lodgement facility being introduced in 2007. We are still looking for volunteers to take part in the pilots, but even if you decide to take no part in the trials it will not be long before electronic conveyancing will be available to all. You will need to start making decisions soon about how you intend to deal with these new ways of working. Of course, for some time it may be possible for you to keep to the old paper-based system, but this cannot go on forever. Electronic conveyancing, if successful, could be made compulsory sooner rather than later, and you may find that even before it is compulsory other players in the process may force you to move. Lenders may insist that if you want to remain on their panels you adopt a system that fits in with their electronic processes. And clients may question why a modern system of property transfer is not available in your firm.

Missing Links:

electronic funds transfer (EFT) "We are not convinced that introducing a new method of moving conveyancing funds around the country at the same time as establishing a new electronic conveyancing service is such a good idea. We are therefore still, going ahead with seeking a new money transfer system for conveyancing, but we intend to proceed slowly and ensure that all options are fully considered."

electronic signatures "We know that many practitioners would not be happy to sign documents in this way. However this is the way electronic conveyancing is carried out in many commonwealth jurisdictions, especially in Canada and Australia, and the idea is gaining support here. What would be needed is a standard “representation arrangement”, probably embodied in something like a client care letter and signed by the conveyancer’s client authorising him to sign in this way. If we were to proceed in this way, electronic signatures could be cheaper, because signatures would need to be issued only to known conveyancers, perhaps 30,000 to 40,000 of them, whereas if the general public can sign we would be looking at signatures coming in from over 30 million members of the public. Obviously the risk of fraud is then much greater, as is the corresponding cost of insurance against it. So, it is possible that in the e conveyancing pilot mentioned below documents might need to be signed by practitioners only. However, our pilot for e signatures is examining how members of the public might be issued with e signatures, and I am confident that as the electronic conveyancing programme is further “rolled out” clients will be able to sign documents themselves."

Full e conveyancing Pilot. The aim is to start a pilot for the full service in the second half of 2007. The first essential component is a fully secure system linking practitioners to the Land Registry’s central conveyancing service. Practitioners will have signed up to a network access agreement, setting out the rights and obligations of both users and the Land Registry and a procedure will be in place establishing how to go about electronic transactions

Extracts from paper given by Steve Kelway

Interview: Alan Ramage : The Journal Magazine : The Journal of the Law Society of Scotland

Interview: Alan Ramage: Scotland electronic conveyancing

online real estate revenue growth

Revenue growth for www.realestate.com.au

realestate.com.au has 50% market share

realestate.com.au has a dominant 50% market share versus domain.com.au that trails with a 30% market share, the market basically being a duopoly.
The trend would suggest that this gap is ever widening.
reference BRW Oct 05
REA will be targeting to have 100% real estate listings in Australia.(75-80% of Australian real estate agencies advertise with REA)

Injunction granted against a conveyancing company

On Friday 16 September 2005 the Law Institute of Victoria (LIV) made
application to the Supreme Court for an injunction against Home Conveyancing and Probate Services Pty Ltd pursuant to s316 of the Legal Practice Act 1996
(unqualified practice).

Justice Hanson granted an interim injunction in the following terms:

"Until the trial of the proceeding or further Order the defendant be
restrained from engaging in legal practice in Victoria and in particular
without limiting the generality of the foregoing be restrained from
preparing vendors statement pursuant to s32 of the Sale of Land Act 1962."

The application by the LIV followed receipt of a complaint about this
conveyancing company.

It should be emphasised that the injunction is an interim injunction and
there was an Order that the matter be referred to the listing master to be
fixed for hearing on the basis that it warrants priority.

We anticipate that the matter will be listed for final hearing in 3-4 months
time when the matter will be the subject of a full hearing before the Court.

We will be providing more information on the outcome of the matter once it
has been dealt with by the Court.



John Cain
CEO
Law Institute of Victoria

200

247legal.com.au has published its 200th property profile in less than 12 months. From a zero base to 200, the feedback has been overwhelmingly positive. Estate agents that have been the early adopters continue to refer vendors to Hayton Kosky Lawyers.

The next 12 months will be interesting. Digital Conveyancing rules!

247legal.com.au

National Electronic Conveyancing

Australia’s joint government and industry initiative to create a more efficient and convenient way of completing property transfers and registering land title changes

NECS

Headed up by Simon Libbis

Good luck - I dont envy the task ahead - BH

Fraud and the Abolition of the duplicate certificate of title

C Hammond, 'The abolition of the duplicate certificate of title and its potential effect on fraudulent claims over Torrens land' (2000) 8 Australian Property Law Journal 115, where the author looked at whether the abolition of the certificate of title increases the potential for fraud to occur and concluded that the "production of a duplicate certificate of title operates as an effective safeguard against third party fraud. The extremely rare cases of fraud by third parties across all three jurisdictions bears this out. However, the existence of a duplicate certificate of title is less effective as a safeguard where 'trusted agents', friends or family are involved in the fraud. In these cases, access to the duplicate certificate of title by the fraudulent party makes it easier for them to perpetrate fraud and to obtain registration of the fraudulent dealing": at 130.

Sharon Christensen LLB (Hons), LLM

Electronic Land Dealings in Canada, New Zealand and the United Kingdom: Lessons for Australia

E LAW | Electronic Land Dealings in Canada, New Zealand and the United Kingdom: Lessons for Australia
The physical immediacy of paper - its touch and smell - are reassuring proof of our existence and of our past

"Electronic commerce offers new ways of conducting commercial transactions. Changes in the way commerce is undertaken nationally and internationally has placed greater reliance on technology and increased the use of the Internet as an interactive medium. The nature of the Internet as "a decentralised, global medium of communication comprising a global web of linked networks and computers"[2] has created issues for the formation of common contracts, given rise to complex jurisdictional problems, ignited debate on privacy and defamation issues, created new intellectual property rights which require protection and created a variety of complex consumer protection issues which may not be covered by present legislation."




The full paper gives an excellent expose on eConveyancing dealings in Ontario Canda, British Columbia, New Zealand, UK and Australia
Author Sharon Christensen
Gadens Professor in Property Law, Queensland University of Technology Faculty of Law

National Electronic Conveyancing Office

Pelikan Shanghai M620, originally uploaded by Wil Lau.

Newsletter No. 9 (6 October 2005)

Start-up of the National Office


With broad agreement among the Land Registries in all States and Territories on what needs to be done, the first steps have been taken to put national governance arrangements in place, with the aim to define and implement a National Electronic Conveyancing System (NECS).


A National Office has been established and an Executive Director appointed to get things underway. The Executive Director is Simon Libbis, who until recently was Registrar-General in South Australia. Simon is a legal practitioner with considerable experience in conveyancing and real property law. He will have a small number of contract staff assisting him as his work increases. Under initial arrangements, the National Office is operating in Melbourne at Level 40, 140 William Street and can be contacted through its website at www.necs.gov.au, or by telephone on (03) 9607-8470.


To oversee the start-up of the National Office, an interim National Steering Committee has been formed by the Deputy Director General of the NSW Department of Lands and the Deputy Secretary of the Victorian Department of Sustainability & Environment. The interim Steering Committee has given the National Office a starting work program consisting of eight tasks:


Task 1: Establish Interim Governance Arrangements

This involves completing the National Steering Committee membership, fully resourcing the National Office and setting up the National Consultation Forums.


Task 2: Confirm Business Model

This involves presenting the National Business Model to the Consultation Forums, incorporating any enhancements or changes brought forward and getting their endorsement to take it forward to the Steering Committee with a recommendation to implement.


Task 3: Obtain Independent Risk Assessment

This involves engaging an experienced financial and operational systems risk assessor to identify, document and assess all of the risks inherent in the National Business Model and to recommend how risk should be shared among the stakeholders and managed. The outcome of the work will be reviewed with the Consultation Forums and considered by the Steering Committee, with adjustments made if necessary to the business model.


Task 4: Obtain Independent Regulatory Review

In parallel with the risk assessment, independent advice will be obtained on the National Business Model’s compliance with all relevant regulatory requirements. This will ensure compliance with National Competition Policy as well as trade practices and financial services regulation generally. The advice and any implications will be reviewed with the Consultation Forums.


Task 5: Obtain Independent Governance Advice

This involves getting expert advice on the most appropriate ownership, governance and control arrangements for the NECS once it becomes operational. The advice will be reviewed with the Consultation Forums and recommendations for implementation put to the Steering Committee.


Task 6: Obtain a Preliminary Evaluation of the Victorian System

This is intended to get an early indication of how much of the NECS can be provisioned from the system developed in Victoria and shortly to be pilot tested there. The outcome may enable implementation of the NECS to be fast-tracked.


Task 7: Develop a Funding Model

This involves modelling expected costs and fee revenue for the NECS so as to be confident of its commercial viability.


Task 8: Prepare Detailed Implementation Plans

This involves preparing detailed plans for everything necessary to provision, test and commission the NECS and to progressively set it to work in each jurisdiction, including converting users from paper to electronic conveyancing.

Electronic Land Registration Hits the Three Million Mark in Ontario

The world's first electronic land registration system, developed by Teranet, continues to change the real estate landscape in Ontario. On May 31, 2004 in Toronto, the 3 millionth document was registered using the Teraview software. In the counties where electronic land registration is available, 95% of all registrations are now submitted electronically.

The system handled a new record of close to 17,000 electronic land registrations in one day on April 30, 2004. That represents an average of 33 transactions per minute or 0.55 transactions per second. Clearly, the Teraview software is capable of handling multiple registrations at the same time.

"This, combined with an operating uptime record of 99.9%, demonstrates our commitment to ensuring the system is available and operating to meet our customers' needs," said Mike Sliwinski, Vice President, Information Services at Teranet.

The volume of registrations will increase as the roll-out of electronic land registration continues and implementation begins in Northern Ontario with Sudbury, Rainy River and Cochrane scheduled to come online in August 2004. Automated records are now available in 27 of the province's 54 land registry offices.

Real estate law is about more than land registration and the Teraview software takes that into account. Feedback from the legal community is constantly being incorporated into upgrades with the newest version being Teraview 5.2. Among other things, upgrades have given lawyers the ability to view imaged documents referenced in the legal description immediately online.

Aside from being a tool to prepare and submit documents for registration, Teraview software gives lawyers the ability to conduct database searches and view and print official parcel registers. Documents pertaining to writs of execution can also be obtained without leaving the office.

Teranet develops business-to-business and business-to-government e-services solutions. With a unique combination of capabilities and state-of-the-art systems, Teranet is at the forefront of delivering service potential in the land, legal and financial services industries as well as enabling electronic government service delivery

http://www.teranet.ca/corporate/news/threemillion.html

National Electronic Conveyancing 2005 timeline

Electronic Conveyancing in NSW - Newsletter No. 8

Electronic Conveyancing in NSW - Newsletter No. 8

Please find following the eighth of Lands' regular newsletters on electronic conveyancing in NSW (ECNSW), intended to keep you informed of developments towards electronic conveyancing in NSW. The newsletter provides an updated path to a National Electronic Conveyancing System as outlined in three draft documents recently updated and re-published. These include the National Business Model, National Governance Arrangements and National Implementation Strategy.

Newsletter No. 8

Electronic Conveyancing in NSW

Updated Roadmap Documents Now Available

The path to a National Electronic Conveyancing System is described in three documents recently updated and re-published.

The National Business Model (NBM) describes the roles, relationships and rules of all of the key participants and contributors to electronic settlement of property transactions and lodgment of dealings and related information with the appropriate Land Registry or other government agency.

The NBM provides the business context in which the National Electronic Conveyancing System (NECS) will be used by practitioners, banks and mortgage processors. In particular, the NBM describes:
• the roles of users and subscribers, and the part each will play in preparing and certifying dealings
• the role of licensed service providers in integrating use of the NECS with other services used in the conveyancing process
• how heavy users will be able to integrate access to the NECS into their existing systems for increased convenience
• the functions the NECS will provide to facilitate settlement and lodgment, including payment of duties and disbursements
• the security arrangements that will ensure users can have confidence in using the NECS
• the way in which each jurisdiction’s Land Registry and Revenue Office requirements will be satisfied
• the arrangements that will provide electronic financial settlement at the Reserve Bank
• the ways in which users will be supported in their use of the NECS.

The National Governance Arrangements (NGA) describes the organisational and administrative arrangements that will supervise development and implementation of the NECS and the National Business Model generally. It describes:

• the role of a National Steering Committee in supervising the development and implementation work
• the inclusion of government and industry representatives on the Steering Committee
• the participation of government representatives from all States and Territories on the Steering Committee
• the creation of National Consultation Forums to get detailed input from industry and government participants
• the establishment of a National Office to support the Steering Committee and Consultation Forums.

The National Implementation Strategy (NIS) describes the way in which the NECS will be created and set to work. It describes the following four stages:

• Setting-Up, in which the National Governance Arrangements and the National Business Model will be confirmed
• Building, where the NECS will be provisioned from the best available resources, thoroughly tested and commissioned
• Readying, where each jurisdiction will prepare for its participation in the NECS while the NECS is being built
• Converting, where each jurisdiction will keep its local constituencies informed on progress and convert users from paper to electronic conveyancing when the NECS becomes available in its jurisdiction.

The NIS describes what is intended in each of these stages and emphasises:

• the role of the National Office in directing the Setting-Up and Building stages
• the role of each State and Territory in ensuring the complementary delivery of the Readying and Converting stages.

The latest versions of these Roadmap documents have been published on http://www.lands.nsw.gov.au/ecnsw/publications
and all industry participants are invited to review them and provide comments and feedback.

Your Questions Answered
You can have your questions on electronic conveyancing in NSW answered now by completing the feedback form at http://www.lands.nsw.gov.au/ECNSW. Let us know what you think, what issues concern you and what things we should pay particular attention to in taking the initiative forward.

Public Consultation Document (May 2004) available at http://www.lands.nsw.gov.au/ECNSW
PCD Feedback Report (March 2005) available at http://www.lands.nsw.gov.au/ECNSW
Information Session Presentation (April 2005) available at http://www.lands.nsw.gov.au/ECNSW
National Business Model, Governance Arrangements & Implementation Strategy at http://www.lands.nsw.gov.au/ECNSW
Glossary of Conveyancing Terms and Newsletter Archive available at http://www.lands.nsw.gov.au/ECNSW

The information contained in this newsletter is correct at the time of publication but may change as the project develops.
Published by the NSW Department of Lands, GPO Box 15 Sydney NSW 2001 Australia
Libby Abraham
Client Service Manager - Commercial
Land and Property Information
Department of Lands
Tel 02 8258 7462
Fax 02 9236 7611
Web : www.lands.nsw.gov.au