PROPERTY LAW ACT 1974 - SECT 238 Other statutory conditions of sale

PROPERTY LAW ACT 1974 - SECT 238

238 Other statutory conditions of sale

(1) A purchaser of any property shall not—

(a) require the production, or any abstract or copy, of any deed, will, or other document, dated or made before the time prescribed by law, or stipulated, for the commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; or

(b) require any information, or make any requisition, objection, or inquiry, with respect to any such deed, will, or document, or the title prior to that time, even though any such deed, will, or other document, or that prior title, is recited, agreed to be produced, or noticed;

and the purchaser shall assume, unless the contrary appears, that the recitals contained in the abstracted instruments, of any deed, will, or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected, if and as required, by fine, recovery, acknowledgment, enrolment, or otherwise.

(1A) However, subsection (1) shall not deprive a purchaser of the right to require the production, or an abstract or copy of—

(a) any power of attorney under which any abstracted document is executed; or

(b) any document creating or disposing of an interest, power or obligation which is not shown to have ceased or expired, and subject to which any part of the property is disposed of by an abstracted document; or

(c) any document creating any limitation or trust by reference to which any part of the property is disposed of by an abstracted document.

(2) Where land sold is held by lease (other than an under-lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted, and, on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase.

(3) Where land is held by under-lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease were duly granted, and, on production of the receipt for the last payment due for rent under the under-lease before the date of actual completion of the purchase, the purchaser shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date.

(4) On a sale of any property, the following expenses shall be borne by the purchaser where the purchaser requires them to be incurred for the purpose of verifying the abstract or any other purpose—

(a) the expenses of the production and inspection of all records, proceedings of courts, deeds, wills, probates, letters of administration, and other documents, not in the possession of the vendor or the vendor’s mortgagee or trustee, and the expenses of all journeys incidental to such production or inspection;

(b) the expenses of searching for, procuring, making, verifying, and producing all certificates, declarations, evidences, and information not in the possession of the vendor or the vendor’s mortgagee or trustee, and all attested, stamped, office, or other copies or abstracts of, or extracts from, the documents referred to in paragraph (a) , not in the possession of the vendor or the vendor’s mortgagee or trustee;

and where the vendor or the vendor’s mortgagee or trustee retains possession of any document, the expenses of making any copy of the document, attested or unattested, which a purchaser requires to be delivered to the purchaser, shall be borne by that purchaser.

(5) On a sale of any property in parcels, a purchaser of 2 or more parcels held wholly or partly under the same title, shall not have a right to more than 1 abstract of the common title, except at the purchaser’s own expense.

(6) Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, or statutory declarations, 20 years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions.

(7) The inability of a vendor to furnish a purchaser with an acknowledgment of the vendor’s right to production and delivery of copies of documents of title or with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.

(8) Such acknowledgments of the right of production or covenants for production and such undertakings or covenants for safe custody of documents as the purchaser can and does require shall be furnished or made at the purchaser’s expense, and the vendor shall bear the expense of perusal and execution on behalf of and by the vendor, and on behalf of and by necessary parties other than the purchaser.

(9) A vendor shall be entitled to retain documents of title where—

(a) the vendor retains any part of the land to which the documents relate; or

(b) the document consists of a trust instrument or other instrument creating a trust which is still subsisting, or an instrument relating to the appointment or discharge of a trustee of a subsisting trust.

(10) This section applies to contracts for sale made after the commencement of this Act, and applies to contracts for exchange in like manner as to contracts for sale.

(11) This section applies subject to any stipulation or contrary intention expressed in the contract.

(12) Nothing in this section shall be construed as binding a purchaser to complete the purchase in any case where, on a contract made independently of this section, and containing stipulations similar to this section, or any of them, specific performance of the contract would not be enforced against the purchaser by the court.