Tim Berner Lees - inventor of the internet

"I just played my part. I built on the work of others -- the Internet, invented 20 years before the web, by Vint Cerf and Bob Kahn and colleagues, for example, and hypertext, a word coined by Ted Nelson for an idea of links which was already implemented in many non-networked systems. I just put these technologies together. And then, it all took off because of this amazing community of enthusiasts, who have done such incredible things with the technology, and are still advancing it in so many ways".

19 December 2005

Digital / Electronic Conveyancing

Parker Duofold Pinstripe Centennial

Parker Duofold Pinstripe Centennial, Will Lau

The mission

To create an industry standard in digital conveyancing

A uniform standard and common approach. The aim is to create a system which is easy to use for everyone involved. Every user has their own unique perspective. The Vendor. The Prospective Buyer. The Purchaser. The Estate Agent. The Law Firm. The Conveyancing Clerk. Valuers. Lenders. Government.

Standardisation is something the industry is a little bit short of by a long mile.

The concept of digital conveyancing is new. I believe the future lies herein. Therein we can sow the seed of its success through establishing standards that will benefit everyone.

I have spoken already about Vendor Disclosure. The majority of Australian States & Territories have vendor disclosure. An online methodology of publishing vendor sales documentation is the obvious or almost perfect approach to the creation and distribution of contracts & vendor statements, title documents & property certificates. An industry website for lawyers and estate agents can set the standards for digital conveyancing to achieve the above.

There are two strands to a set of standards.

• systems. 247legal is creating the framework for the requisite systems of a digital conveyancing network. Over time the system can be fine tuned by user feedback.
  
• standard contracts and vendor statements. Here is where we need peer input into creating standard form contracts and vendor statements. Somehow every lawyer and conveyancer has their own standard template. Outside and within the legal profession there is a clarion call to adopt an industry template. At least for the common residential sale which make up 90%+ of all sales.
  

I have placed a link to my standard contract and vendor statement. Download them, measure them against you own in-house version, and criticise the bejesus out of them. Cut, delete, add and modify. Email me your suggestions and changes. For example, should we include a standard "subject to building inspection" clause which the agent can tick if applicable. Do we include the statutory conditions that the ACT contract must now include? In the end the industry will be the greatest beneficiary.

1. Contract
   
2. Vendors Statement
   

Digital conveyancing standards, I envisage, will be created through technical debate by members on the mailing list (the Interest Group). Any issues can be resolved by consensus of a smaller Working Group which is supported by the Interest Group. Most of the design can be accomplished using a combination of email, teleconferences and the occasional face-to-face meeting

247legal with flickr

Tasmania - Vendor Disclosure

Tasmania is about to become the latest state to join the Vendor Disclosure regime for property sales. Goodbye Caveat Emptor.

Tim Tierney Lawyer with Baker Tierney & Wilson Huonville Tas has written a paper on Vendor Disclosure and Cooling Off as it will apply to Tasmania.

The latest update is Tasmanian parliament has introduced a bill which is now enacted. The bill is available from www.parliament.tas.gov.au

Extract:
Section 185. Vendors to provide relevant disclosure documents

(1) When offering land for sale, a vendor or any agent of the vendor must ensure that the relevant disclosure documents are available to a purchaser in one or more of the following ways:

(b) in an electronic format that enables the information to be printed and saved to an electronic file;

When proclaimed the Act will be available from www.thelaw.tas.gov.au

Tim's paper which is a precis of the new act and which he delivered to a seminar for the Law Society. You can download and read the Disclosure Paper or the short version

Through the Property Law Group of Law Council Tim wrote to the Tasmanian attorney general and suggested she have uniformity as a keystone of Vendor disclosure reform. She replied that Tasmania is different and the government would do what they thought best!!!!!

The Digital Office

Three practical steps to cutting your ties with paper. Your initial office procurement requirements

1. Document Feed Scanner
   
2. Acrobat Standard
   
3. Fax to Email service
   

Getting combat ready for the digital office, these are the first steps in the war against paper. Winning the war is easier than you think. This is a theme I will be coming back to time and time again.

Conveyancing Milestones - 50 years

A brief critique on the history and milestones of conveyancing practice from 1955 to 2005. Company share titles to the Wang wordprocessor, Vendor Disclosure to Digital & Electronic Conveyancing, yesterday today and tomorrow.

The father of modern conveyancing -

1857 Real Property (South Australia) Act - Sir Robert Richard Torrens

From a Victorian perspective

• 1950s
  
  
  
  • Company Share
    
  • Stratum Title
    
  
  
• 1960s
  
  
  
  • Strata Title
    
  
  
• 1970s
  
  
  
  • Wang Word Processing
    
  
  
• 1980s
  
  
  
  • Fax Machine
    
  • WordPerfect for DOS
    
  • Data Merging with Documents - LawPerfect
    
  • Vendor Disclosure - Vendor Statements
    
  • Subdivision Act 1988
    
  
  
• 1990s
  
  
  
  • Electronic Title Searching
    
  • Browser Title Searching & Brokers
    
  • Off the Plan Sales
    
  
  
• 2000
  
  
  
  • www.realestate.com.au
    
  • www.domain.com.au
    
  • mortgage brokers come to the fore
    
  
  
• 2005 -
  
  
  
  • Data + Document Merging
    
  • XML data interchange between industry sectors
    
  • LIXI XML standards for electronic mortgage applications
    
  • PDF as the document standard
    
  • Digital Conveyancing Networks
    
  • Electronic Settlements and Lodgments
    
  • Digital Contracts + digital signatures
    
  • Scanners replace the photocopier
    
  • Digital Archives
    
  • Zillow like mapping
    
  
  

I would love to hear comments from fellow practitioners of the art of conveyancing

Conveyancing milestones

South Australia - Vendor Disclosure

The Land and Business (Sale and Conveyancing) Act 1994 (SA) provides that at least 10 days before settlement the vendor must serve on the purchaser a statement in the form prescribed by regulation setting
out:
• the rights of the purchaser under section 5 (in relation to cooling off periods);
• details of all mortgages, charges and prescribed encumbrances affecting the land;
• if the vendor has obtained title within the last 12 months, all transactions involving transfer of title in that period; and
• any prescribed matters.

For the purposes of vendor disclosure, this last point is of the most operative effect, as the forms prescribed by the regulations are of a very detailed nature, essentially requiring the vendor to disclose any matter affecting, presently or prospectively, title to, or possession or enjoyment of the land.

Where a vendor makes a defective statement in relation to one of these matters that prejudices the purchaser, the purchaser may apply to the court for an order declaring the contract void and/or awarding damages or making any other order that is just in the circumstances. Furthermore, failing to comply with these disclosure requirements constitutes an offence punishable by a fine of up to $2,500. It is a defence in criminal or civil proceedings if:
• the alleged contravention was unintentional and did not result from negligence;
• the alleged contravention was due to reliance on information received from a person or body whom the vendor was required to obtain the information from under the regulations; or
• the purchaser waived compliance with the matter in question after obtaining legal advice on the issue.

The Act also specifically provides that it does not affect the existence of any other civil remedies.

Source Tasmania Law Reform Report

ACT Vendor Disclosure

In the Australian Capital Territory the newly introduced Civil Law (Sale of Residential Property)Act 2003 came into effect on 1 July 2004. This legislation seeks to balance the rights of the seller and buyer. The legislation introduces comprehensive reforms to counter gazumping, a five-day cooling-off period and compulsory vendor disclosure. The vendor disclosure is by way of the vendor making the following documents available to all prospective purchasers throughout the time that an offer can be made:
• a copy of the Crown Lease;
• a copy of the current edition of the certificate of title;
• a copy of any encumbrance that is shown on the certificate of title (for example, a restrictive covenant or an easement);
• a statement about any encumbrance that does not appear on the title;
• a copy of the lease conveyancing inquiry documents for the property;
• for a unit, a copy of the units plan, and the current edition of the certificate of title for the common property;
• the building conveyancing inquiry documents;
• the energy efficiency rating statement;
• a building inspection report from an inspection carried out not earlier than 3 months before the day the property was first advertised for sale or listed by an agent; and
• a pest inspection report.
It is an offence if a seller does not make the required documents available for inspection by a prospective buyer.

The following conditions must also be included in all contracts for the sale of residential property:
• the property is sold free of encumbrances;
• the buyer is entitled to vacant possession;
• that there are no unapproved structures, except as disclosed in the contract;
• that the buyer may not make any requisitions on the title to the property;
• that there are no unsatisfied judgements, orders or writs affecting the property; and
• that the required documents form part of the contract.
On completion of a contract for the sale of residential property, the seller is entitled to reimbursement from the buyer for the cost of obtaining a building inspection report and a pest inspection report.

If the buyer becomes aware of an error in the description of the property before completion of the contract the buyer may –
i) if the error is material, rescind the contract, or complete the contract and claim damages; and
ii) if the error is not material – complete the contract and claim damages.

Source: Tasmanian Law Reform Report

Victorian Disclosure

Vendor disclosure is required in Victoria by s 32 of the Sale of Land Act 1962. Under the Victorian legislative regime the vendor must disclose the following in a signed statement:
• for any land upon which a residence is erected, any information concerning building permits within the last 7 years given with respect to any building on the land;
• particulars of any charge imposed under any Act;
• a description of any easement, covenant or similar restriction affecting the land;
• details of any planning instruments and the zoning of the land;
• a warning to the purchaser concerning permitted user; namely, where a planning instrument prohibits the construction of a dwelling on land outside the metropolitan area;
• details of any rates and taxes charged on the land;
• particulars of any notices, order declarations, reports or recommendations of a public authority or government department or an approved proposal affecting the land of which the vendor might reasonably be expected to have knowledge; this includes notices of intention to acquire;
• basic information about the following services: gas, electricity, water, sewerage and telephone;
namely, whether the service is connected, and if so the name of the authority supplying the service. If a connected water or sewerage supply is below the standard level, particulars as to the level supplied.
Furthermore, a warning must be supplied to the effect that the purchaser should check with appropriate authorities about the availability and cost of connecting any unconnected service;
• if there is no road access to the property, a statement to this effect;
• particulars of any current land use restriction notice that affects the land due to contamination;
• a copy of the certificate of title or other evidence of title to the land;
• if the vendor is not the registered proprietor or owner, evidence of their right or power to sell; and
• if the land is subject to a subdivision, certain information must be disclosed concerning the subdivision.

Where a vendor supplies false information or fails to supply all the information required the purchaser may rescind a contract entered into on the basis of that information63 at any point before completion or becoming entitled to possession or rents and profits. However, the purchaser may not rescind the contract if the court is satisfied that the vendor has acted honestly and reasonably and ought fairly to be excused for the contravention and that the purchaser is substantially in as good a position as if the relevant disclosure had been made. The burden of proof lies with the vendor.

NSW Vendor Disclosure

Broadly speaking there are two requirements of vendor disclosure under the NSW legislative regime:

First, certain documents must be annexed to the contract of sale before the purchaser signs it:
• a certificate disclosing the planning status of the land, issued pursuant to s 149 of the Environmental Planning and Assessment Act 1979;
• a copy of the folio of the register comprising the title;
• a copy of any registered plan;
• a sewerage diagram;
• copies of all deeds, dealings and other instruments lodged or registered in the Land Tiles Office relating to: easements, profits a prendre, restrictions on the use of the land and positive covenants that affect the land; and
• additional documents that must be disclosed for Crown land and strata lots.
Failure to annex the prescribed documents does not render the contract void. Rather, the purchaser can rescind within 14 days of entry into the contract, unless the contract has been completed. This remedy is available regardless of whether the purchaser can show that the failure amounted to conduct that misled or deceived
them.

Secondly, the vendor is deemed to make a prescribed warranty to the effect that:
• except as disclosed in the contract, the land is not subject to an ‘adverse affectation’;
• the land does not contain a sewer vested in a public sewerage authority;
• the planning certificate annexed to the contract specifies the true planning status of the land; and
• there is no matter in relation to any building or structure on the land that would justify the making of any upgrading or demolition order, or if there is such a matter, a building certificate has been issued.

If this warranty is breached the purchaser may rescind the contract at any time before completion provided that the purchaser was unaware of the matter which ought to have been disclosed when the contract was made and the purchaser would not have entered into the contract if they had been aware of the matter. The purchaser loses their right to rescission if they elect to affirm the contract.

Source Tas Law Reform Paper on Vendor Disclosure p.13

Vendor Disclosure

Vendor disclosure refers to the practice of the vendor (seller) of property disclosing information about the property to the purchaser, or potential purchaser. This may be done by making a disclosure statement, giving certain undertakings (for example in the contract of sale) and/or providing certain documents.

Australian States do not have uniform leglislation for the duty of disclosure.

The current matrix would appear to be (NSW, Vic, SA and the ACT) have enacted legislation affording more protection to buyers by requiring vendors to disclose certain information about their property prior to Contract.

In other Australian jurisdictions (WA,QLD, and the NT) the standard form contract used in property sales has been developed to encourage vendor disclosure.

Tasmania is the last State that still relies on the common law principle of caveat emptor.
The principle of caveat emptor (or buyer beware) is premised on the ability of the purchaser to discover by inspection any defects in the property being purchased. In accordance with this principle, at common law, a purchaser has the right to rescind a contract for the sale of property only if:
• the vendor has failed to disclose defects with the title of the property; and
• those defects are not discoverable by a normal inspection of the property.

This state of affairs reminds me to pull out my old copy of Voumard and debate the distinctions between a a defect in title that would allow rescission, as against something that only goes to a defect in the quality of the title (and therefore does not permit the purchaser to rescind the contract)

Summary: The current law in Tasmania requires vendors of residential property to disclose little information to purchasers about the property. The common law principle of caveat emptor has the effect of requiring only that matters constituting a defect in title be disclosed – matters affecting the quality of the title need not be disclosed. Case law demonstrates that the distinction between these two categories is not always obvious.

Source Tasmania Law Reform Institute Final Report No 5 Sep 2004 on Vendor Disclosure

NECS - First Meeting of National Committee

November 2005

As the next step in establishing the National Governance Arrangements, a National Steering Committee has been formed and held its inaugural meeting in Sydney late last month.
The Committee is made up of government, industry and profession representatives and its task is to arrive at the policy and strategy decisions necessary to make electronic conveyancing a reality across Australia.
Present at the first meeting were:

• Michael Ockwell, Registrar-General, representing the ACT Department of Justice and Community Safety
  
• Des Mooney, Deputy Director General, representing the NSW Department of Lands
  
• Greg Shanahan, Deputy CEO, representing the NT Department of Justice
  
• Neil Lawson, Executive Director, representing the Queensland Department of Natural Resources and Mines
  
• Jeff Reeve, Manager Finance, representing the Tasmania Department of Primary Industries, Water & Environment
  
• Genevieve Overell, Deputy Secretary, representing the Victoria Department of Sustainability and Environment
  
• Grahame Searle, Chief Executive, representing the WA Department of Land Information
  
• Nikki Kempson, NSW Office of State Revenue
  
• Paul Broderick, CEO Victoria State Revenue Office
  
• Bruce Treloar, Westpac Banking Corporation, nominated by the Australian Bankers’ Association
  
• Sean Cash, Chief Operating Officer, ANZ Banking Group, nominated by the Australian Bankers’ Association
  
• Brian Parker, Chief Operations Officer, Espreon, nominated by the Information Brokers.
  
• John Corcoran, Member, Law Council of Australia
  
• John McIntyre, President, Law Society of NSW
  
• Jill Ludwell, CEO, Victorian Division Australian Institute of Conveyancers
  

You can make representations to the Committee via the National Office info@necs.gov.au or through Lands ecnsw@lands.nsw.gov.au
Source: Electronic Conveyancing in NSW - Newsletter No. 12

247digital - typogenerator

Electronic Transactions Act - British Columbia

Electronic Transactions Act BC

Section 2 deals with Application and Exceptions

2(4) This Act does not apply to

1. wills,
   
2. trusts created by wills,
   
3. powers of attorney, to the extent that they concern the financial affairs or personal care of an individual,
   
4. documents that create or transfer interests in land and that require registration to be effective against third parties
   

Presumably you can exchange contracts for the sale of land electronically but not sign a Transfer electronically under the Act. British Columbia has electronic transfers under their Land Registry system so that must be specifically dealt with under that legislation.

free plug for the 3 Netconnect data card

Mobile computing is becoming more common. Personally I find the service good but at times frustrating when in the middle of Melbourne CBD it cant find the network. A backup strategy is to subscribe to wireless hotspot providers.

worlds first wireless digital conveyancing file

Despite the rest of the world still struggling with preparing paper contracts and vendor statements, Hayton Kosky has created the first digital conveyancing file, using a wireless laptop with a 3 NetConnect data card, for the sale of client property at 3/27 Victor Road Bentleigh East Victoria. The property profile was created at 12.32p 09-Dec-2005. Title searches were ordered via GXS at 12.37 09-Dec-05. The vendor client who resides in Queensland and the estate agent were emailed so they can track the progress of the sales documentation through to completion.



The sales documentation will be completed next week on receipt of the balance of the property certificates. This is as close as you can get to a paperless file. This file also demonstrates that you can perform all these functions remotely and without using any desktop software.

Apologies for the crap foto

Getting combat ready for the digital office

From early 2006 the Digital Conveyancing User Group will be presenting a monthly series of e-forums and online discussion groups on becoming combat ready for the digital office and electronic / digital conveyancing.

Sample topics covered

• Scanning & Scanners
  
• Digital faxes – fax to email
  
• Transmitting everything in PDF
  
• Standardisation of Real Estate Contracts
  
• Digital Contracts & Vendor Statements
  
• Hosting a web site
  
• E-marketing
  
• Building Business through networking
  
• National Electronic Conveyancing System
  
• Electronic Conveyancing Systems in NZ and Canada
  
• Digital Archives
  

Don’t miss out.

Register now - membership form

Homes sales still falling - theage.com.au

Homes sales still falling - theage.com.au

RESIDENTIAL property transactions in Melbourne will show a decline for the fifth consecutive year, with sales to the end of November down more than 40,000 from the peak in 2001.

Property analyst Residex said residential sales so far this year totalled 54,799 ? and with only a month to go the number is unlikely to eclipse last year's 66,339 transactions.

Sales of units showed this year's biggest decline ? 16,050 compared with 20,583 last year. The figure is well short of the high in 2001 of 40,041.

So far this year, 38,749 homes have sold, compared with 45,756 for all of last year. Residential sales in 2001 totalled 98,269.

At the peak of the property market in 2003, the value of dwellings changing hands was a record $30.4 billion. The figure to the end of November is $23.4 billion and, according to Residex, the total for the year is likely to be down on last year's $25.4 billion of sales.

The figures are $10 billion lower than the data from the valuer-general because the Residex figures do not include all the Mornington Peninsula and outer areas of Melbourne.

While the low volume of sales this year has underpinned Melbourne's property prices, it has also resulted in a continued contraction in the real estate industry. The Real Estate Institute of Victoria has reported that 65 member offices closed this year, up on the 55 offices that ceased trading last year.

Despite the decline in the volume of sales, more vendors opted for auctions as a selling method, with dwellings sold under the hammer rising from 19,424 in 2004 to an estimated 21,118 this year.

The yearly clearance rate also picked up, from 56.8 per cent last year to an estimated 65.5 per cent this year, indicating growing strength in the inner-city market, where auctions tend to predominate.

Melbourne's median house price peaked at $380,000 in the December quarter of 2003. In the September quarter this year it was $360,000.

Electronic Conveyancing - UK

On 13 October 2003, the Land Registration Act 2002 (2002 Act) and Land Registration Rules 2003 (2003 Rules) came into force. The 2002 Act and 2003 Rules completely replace the statutory framework for land registration set out in the Land Registration Act 1925. The 2002 Act and 2003 Rules provide the cornerstone for electronic conveyancing by creating a legal framework for transferring and creating interests in registered land by electronic means. HM Land Registry (HMLR) is responsible for developing an electronic conveyancing system. Under the system it will be possible to execute formal documents electronically via a secure electronic communications network. Execution and registration of documents will be simultaneous and conveyancers will initiate the process. HMLR will control access to the network and what changes can be made to the register. HMLR hopes to create a fully functioning electronic system by 2007.

HM - Land Registry e-conveyancing site

Most important legal tech trend

Transmitting everything in PDF.

Erica Greathouse, IT Director, Castle, Cox & Nicholson based in Los Angeles. We represent and assist businesses, institutions and individuals in the real estate, finance and construction industries. We have 130 lawyers in Los Angeles, Irvine, Calif., and San Francisco. We employ about 280 people, with an IT staff of eight.

Law Technology News
December 1, 2005

not on a deadline

Push for e-transfers

EVERY day, an army of secretaries and lawyers dashes across the cities of Australia carrying documents and cheques.

Their task, which has changed little in the past century, is to carry out the important, but mundane work involved in changing the ownership of real estate.
But if Simon Libbis has his way, all those clerks, secretaries, conveyancers and lawyers will soon be doing things very differently.

Mr Libbis is the man at the centre of a joint project backed by business, the states, lawyers and conveyancers that is attempting to take conveyancing online.

Australian - 2 Dec 05 - Chris Merritt

Good story - but it ain't happening for 4 years

online financial property settlement system

Building an online property settlement system

SFE Austraclear is the central settlement facilitator between Land Exchange, Resrve Bank and financial institutions (FI).

Briefly:

SFE Austraclear receives the financial settlment data related to each Electronic Lodgement File (ELF) marked as ready for settlement. This is sent in batches by Land Exchange.

After validating each file (including the sender, file contents and associated digital certificates), Austraclear repackage it and calculate the aggregate position of each FI involved in the batch.

Once this is complete, Austraclear will send the financial details of each FI's aggregate position to the bank responsible for the ultimate settlement. Simultaneously they send the aggregate position batch of all FI's to the RBA for processing. Once authorised by the RBA, Austraclear advises Land Exchange that final and irrevocable settlement of the ELF's contained in the batch has been achieved and that the transfers can occur.

At this point RBA confirms settlement, the banks are able to post the cleared funds across their various customer and internal settlement bank accounts.

A full description is contained in the December 05 newsletter of Land Exchange