Purchase of land Essay

In Australia, buying property is a delicate procedure

because buyers must show legal documentation proving their ownership. However, a central register that is used to determine ownership exists for every parcel of property in the country. A sizeable portion of land in Australia is held by the British, according to documentation from the national survey of foreign-owned farm property. This procedure aimed to calculate the proportion of domestic investors to total international investors in the nation. By virtue of the property Acquisition Act of 1997, any investor in the nation may purchase a plot of property. In some instances, mysterious actions are witnessed in the country as the government may wish to acquire private land or property under frightening processes. It is then considered an activity that leaves many investors with a limited interest in the acquisition of land in some locations in the country. The state may wish to attain this land for infrastructural practices, or agriculture leaving the initial settler with an option of seeking land in a different location. This paper will critically analyze how the Australian Consumer Law is affecting the purchase of land and the law that governs.

Sale of Land Process

The attainment of the property in the country will only commence when the interested party has created a contract of sale. Similarly, the document must contain copies of the title, drainage, and the current zone certificate that is issued by the local council. However, if the developer wished to purchase land that contains a swimming pool, the seller will present documents containing;

Copy of a valid certificate of compliance

Valid occupation certificate that dated three years of ownership and evidence that the pool is registered.

A valid certificate of noncompliance.

Instances of failure to attach any of the stated documents to the sales contract, the buyer is entitled to rescind the sales contract in two weeks of exchange unless the act of settlement has occurred. Any developer will have to contact the Land and Property Information NSW since they are concerned with an aspect of conveyancing laws. Additionally, an individual may sell property or land through private treaties or auction.

Private Treaty

When a person sells the property through a private deal, they will then have to set a price that will be offered to the purchaser. It then provides an opportunity for negotiation with the seller willing to offer a higher price to the market, and the customer may also offer lower price compared to the initial price.

Implementation of the private treaty process provides various benefits like; having greater control over the sale, consideration of the most appropriate offers, ability to extend time, and the purchase can make a tender on the property even when they haven’t seen the item.

On the other hand, selling the property through auctioning limits the purchaser from identifying the actual price set for the item. The highest bidder will then have the opportunity of attaining the piece of land/ property. It is, however, the most typical process of selling the property but an individual will have to get familiar with the process before presenting the items.

Effect of Australian Consumer Law

According to Justin Malbon,1 the ACL is an essential part of the deregulatory reforms of the COAG in delivering a seamless national economy. However, the Australian Consumer Law and Fair Trading Act of the year 2012 helps in promoting and encouraging fair trading practices and a competitive and equitable market. Improving uniformity with the consumer laws of other jurisdiction through the interpretation and the application of the Australian Consumer Law in Victoria consistently with those laws.

ACL Regulations

The ACL regulations give practical effects of the ACL provisions dealing with; prescribed requirements for asserting a right of payment. Agreements that are not unsolicited with the client’s transactions. Requirements for warranties against defects and the repair notices. Lastly, there is a need for reporting requirements for goods associated with death, illness, or any serious injuries. The ultimate goal is to protect the client from attaining land that will later raise ownership issues. The attainment of the land will also involve the presence of properties representative that will offer practices of scrutiny of these documents before the process of purchase. However, the purchaser will then have to file a law suit in case of any misunderstandings arising from the acquisition of land.

Misrepresentation

Rightful documents will often reduce chances of misunderstandings between parties after the purchase of land.

Furthermore, Corones2 identifies that the concept of misrepresentation will often occur when the involved parties make false representations orally or in writing. Additionally, the context of the image is one of the fats that should be done by the other contracting party which includes the contract. Nevertheless, instances of misrepresentation offer some limits o rescission most significantly if restitution is not possible, the right to rescind will be lost. An individual should not get into a misleading or deceptive contract.3

It is considered unlawful for a business to make statements in a trade that is misleading. Foreigners are likely to be faced with aspects of repossession if offered a piece of land containing false documents. However, strict laws are put in place creating a limitation to foreigners that wish to buy property in the country. In most cases, a merger with a local trader or citizen is made to have the ideal process that should be followed before they acquire land in the country. Nevertheless, failing to disclose relevant documents, promises, predictions, and opinions to the NSW is termed as deceptive or misleading.4 According to findings by Morandin and Smith,5 a misrepresentation incident can hardly call for a contract not to come into being or rendered void. The contract is voidable, and the principal response of the ACL to the misinformation indicates that,

“Since the representer's pronouncement was based on false understandings, the client should then be permitted to resile from the contract. Additionally, the rescission is then described as the usual remedy for a misrepresentation. In the long run, the involved parties can then be linked to an act of reversal and restored to their initial status of the business. The primary goal is to reduce the chances of complete loss from a single party and the other considered as the benefited from the transaction.

Reference

to a misleading conduct case held in the supreme court of Victoria

The case between Futuretronics International Pty Ltd V Gadzhis can be used as one of the success cases that have demonstrated the concept of misrepresentation. The Fair Trading Act of 1985 concerning the dummy buildings at a real-estate auction referred to an Australian Law Journal by French J which his honor made an identification of 386 rulings concerning aspect of deception conduct as at August 1988.

In such instances, the decision whether there was an act of deception and if there is sufficient connection between that conduct and the plaintiff’s loss and damage should be ordered. The court, however, does not apply such actions of any rigid formula. In some instances, his honor may provide an aspect of rejection to the contention of the agent under apportioning provisions. There ought to be limited allotting of any indemnities found as between the negotiator on the one hand and the salesperson on the other. The involved parties are supposed to share the losses involved in the trading activity. Additionally, it was also contended that the customer had affianced in what was indistinguishable to “influential carelessness” by not following the actual procedures about the commercial settings of the occupant. It then led to the act of His Honour rejecting those disagreements on the foundation that the applicable reason of action was not comprehensive on or after the 26th of July 2004 and hence part VIA TPA did not apply to the present case

If the jury made a ruling based on a particular party in the agreement, it would demonstrate an aspect of bias from the bench. Issues raised by both parties had to be considered and evaluated, thus creating a point of intersection where the jury will offer justice to the involved parties. A misrepresentation may also end up in an aspect of refunding the entire sum of money that was paid to the owner if the purchaser had an intent of gaining additional benefit from the proprietor in comparison to the offered prices. It then provides an act of equity and provision of sufficient information to the owners in the process of acquiring land.

Unfair Contract Terms

According to the findings by Latimer 2010,6 the unjust treaty terms laws for consumer goods and services are obligated by both Commonwealth and state and territory consumer protection agencies. The primary target is to have a business transaction in a given region conducted under prescribed guidelines other than the use of bias to attain benefits in business. The ACL further offers a provision that unfair terms in a contract may be considered as void. The party presenting such aspect on an agreement is then liable to punishments for creating an inconvenience to the other party. A consumer contract is interpreted as one for the supply of goods and services to an individual for the concept of personal or household use.7

The court will often consider a contract unfair if;

The agreement may cause a significant imbalance amongst the involved parties’ rights and obligations arising under the contract. Secondly, if the contract is not reasonably necessary to offer protection to the legitimate interests of the party that would be beneficial in the term. Lastly, the contract will be considered unfair when it causes a detriment to a party if it was relied on.

Alternatively, though supervisors will request the various companies to work by eliminating terms reflected to be prejudicial, it is not the obligation of any supervisor to recommend contract standings or to pronounce unconditionally that they are detrimental. It is the mandate of the court to determine if a particular term included in a contract is a standard form and will ignite satisfaction to a consumer when agreeing with another party.

Similarly, the court of law to which a prosecution action may be taken by a supervisory body or a customer may differ based on which organization takes an act of the problem, or where the client and corporate are located. Nevertheless, some state and territory consumer defense regulations also permit certain actions to be taken in a tribunal rather than a Federal Court. It is to demonstrate the level of expertise in a jurisdiction that will be attained in a tribunal other than in the federal courts. Additionally, the authorities provided in the tribunal will create a limited aspect of an appeal from either of the involved parties.

Do the clients have an opportunity of taking action?

The ACL and the ASIC Acts both offer a various set of possibilities for customers to inaugurate private arrangements to implement their privileges or to recover loss or damage sustained for explicit breaches of each Act. It an aspect that offers any foreigner in the nation to attain the desired service that wants from their investments. Unfair treatment will significantly affect the goals of their business thus creating an aspect of losses from the activities that are being initiated in the region.

Under the ACL and the ASIC Act, any of the involved parties in a contract has an opportunity of making an application to the court for an announcement that the conditions provided in the agreement are unfair. It then creates a vacuum of altering the first regulations that were being documented in the contract. In the long run, the involved parties should demonstrate an aspect of comfort with the contract that is to be signed before any transaction. However, instances where the courts find that the regulations presented in the contract seem to be unfair, it then has the mandate to make a pronouncement that the term is invalid. Eventually, only a court can determine whether a term provided in the contract is unfair. In some instances, unfair contract term disagreements may be capable of being resolved through external dispute resolution arrangements. It then creates an aspect of understanding to the parties before any transaction is being made.

The vast majority of customer’s connotations in the world offer support for a free choice of remedies and offered rejection to the addition of a notification duty, rising multiple arguments that buyers would be probable to be unreasonably underprivileged of their remedies. On the reverse of the encumbrance of evidence, they offer support for a period longer than 5 months (principally 2 years). Essentially all these bodies are in the indulgence of a lengthier legal guarantee period (some of them suggest of 7 years), particularly for hard-wearing goods, and hardly provide support to the concept of any synchronization of prescription phases. Nearly none of the organizations are in support of the inclusion of rules on damages in the proposal. It then offers an opportunity to conduct business best on their comfort and the milestones that have been set by these firms before the commencement of any business in the region thus maximization of proceeds from their actions.

Conclusion

ACL came into force on the 1st of January 2011. It is the period that all consumer in the country attained similar rights in conducting business and acquisition of property. The paper has offered critical analysis on how the Australian Consumer Law is affecting the purchase of land and the law that governs. Requirements for warranties against defects and the repair notices. Lastly, there is a need for reporting requirements for goods associated with death, illness, or any serious injuries. The ultimate goal is to protect the client from attaining land that will later raise ownership issues. The attainment of the land will also involve the presence of properties representative that will offer practices of scrutiny of these documents before the process of purchase. Similarly, misrepresentation is often considered unlawful for a business to make statements in a trade that is misleading. Foreigners are likely to be faced with aspects of repossession if offered a piece of land containing false documents. However, strict laws are put in place creating a limitation to foreigners that wish to buy land in the country. Additionally, the ACL further offers a provision that unfair terms in a contract may be considered as void. The party presenting such aspect on an agreement is then liable to punishments for creating an inconvenience to the other party. The ACL and the ASIC Acts both offer a various set of opportunities for customers to inaugurate private arrangements to implement their privileges or to recover loss or damage sustained for apparent breaches of each Act. The agreement may cause a significant imbalance amongst the involved parties’ rights and obligations arising under the contract. Secondly, if the contract is not reasonably necessary to offer protection to the legitimate interests of the party that would be beneficial in the term. Lastly, the contract will be considered unfair when it causes a detriment to a party if it was relied on.

Bibliography

Bruce, Alex. Consumer protection law in Australia. Chatswood: LexisNexis Butterworths, 2010.

Coorey, Adrian. Australian consumer law. Chatswood: LexisNexis Butterworths, 2014.

Corones, S G. The Australian consumer law. Rozelle: Lawbook Co., 2012.

Justin Malbon, Luke Nottage. Consumer Law & Policy in Australia & New Zealand. New York: Federation Press, 2013.

Latimer, Paul Stephen. Australian business law 2012. North Ryde: CCH Australia, 2010.

Marques, Claudia Lima, and Dan Wei. Consumer law and socioeconomic development: national and international dimensions. New York: Springer, 2017.

Morandin, Nicole, and Joshua Smith. Australian Competition and Consumer Legislation 2011. Sydney: CCH Australia, 2011.