PROPERTY LAW ACT 1974 - SECT 75 Right to require conveyance

PROPERTY LAW ACT 1974 - SECT 75

75 Right to require conveyance

(1) A purchaser who is not in default under an instalment contract may at any time after an amount equal to one-third of the purchase price has been paid serve upon the vendor a notice in writing requiring the vendor to convey the land to the purchaser conditionally upon the purchaser at the same time executing a mortgage in favour of the vendor or such other person as the vendor may specify to secure payment of all money which would afterwards but for the execution of such mortgage have become payable by the purchaser under the instalment contract.

(2) A vendor who is not in default under an instalment contract may at any time after an amount equal to one-third of the purchase price has been paid serve upon a purchaser a notice in writing requiring the purchaser to accept conveyance of the land from the vendor conditionally upon the purchaser at the same time executing a mortgage, or (if it is reasonable to so require) mortgages, in favour of the vendor or such other person or persons as the vendor may specify to secure payment of all money which would afterwards but for the execution of such mortgage or mortgages have become payable by the purchaser under the instalment contract.

(3) A vendor who requires a purchaser to accept a conveyance under subsection (2) shall be obliged to advance to the purchaser—

(a) an amount equal to the transfer duty imposed under the Duties Act 2001 on the conveyance; and

(b) an amount equal to legal costs payable by the purchaser of preparation, execution and registration of conveyance of the land to the purchaser;

but such obligation shall be conditional upon the purchaser agreeing to the amount so advanced being added to the principal sum secured by the mortgage or by such 1 of the mortgages as is specified by the vendor.

(4) A mortgage executed under this section shall—

(a) contain all such terms and all such powers and covenants on the part of the mortgagor as may be agreed by the vendor and the purchaser and shall accord with and provide for observance of all obligations of the purchaser under the instalment contract; and

(b) in the case of subsection (1) , but subject to subsection (7) —be prepared and registered at the expense of the purchaser; and

(c) in the case of subsection (2) , but subject to subsection (7) —be prepared and registered at the expense of the vendor.

(5) Transfer duty under the Duties Act 2001 and the legal costs of preparation, execution and registration of conveyance of the land to the purchaser shall be payable by the party or parties in the same way as if such land were being conveyed to the purchaser in consequence of payment in full of the purchase price or other performance by the purchaser of the contract.

(6) In the event of the vendor and the purchaser failing to agree upon the terms, covenants and powers, or any of them, to be contained in the mortgage or whether it is reasonable on the part of the vendor to require the purchaser to execute more than 1 mortgage, the mortgage and any such term, covenant or power to be contained in the mortgage shall be settled, or the number of mortgages and the land to be made subject to such mortgages determined, by an independent practising solicitor or conveyancer appointed by the president of the Law Society on the application to the solicitor or conveyancer of the vendor and the purchaser or either of them, and the mortgage so settled and the number so determined shall be deemed to have been agreed upon by both the vendor and the purchaser.

(7) The reasonable costs of settling a mortgage under subsection (6) shall be borne by the vendor and the purchaser in such proportions (if any) as in the circumstances the president of the Law Society thinks fit, and such costs shall be recoverable by the solicitor or conveyancer in those proportions (if any) from the vendor and the purchaser in any court of competent jurisdiction.

(8) A person liable for costs because of subsection (7) shall be entitled to require those costs to be taxed under the Costs Act 1867 .

(9) Where a notice in writing under this section has been served upon a vendor by a purchaser or upon a purchaser by a vendor, and such vendor or, as the case may be, purchaser without lawful excuse fails to convey or to accept a conveyance of the land or to execute any instrument requisite for giving effect to this section, such vendor or purchaser—

(a) shall be deemed to have broken a condition of the contract, and the purchaser or, as the case may be, vendor shall be entitled to all civil remedies accordingly; and

(b) the party so failing shall be guilty of an offence under this Act.

Penalty—

Maximum penalty—9 penalty units.

(10) In any contract entered into after the commencement of this Act, a reference to the Contracts of Sale of Land Act 1933 , section 9 shall be construed as a reference to this section.