Victorian Consolidated Legislation

Property Law Act 1958 - SECT 45

Other statutory conditions of sale

45. 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, notwithstanding that any such deed, will or other
        document, or that prior title, is recited, agreed to be produced, or
        noticed-

and he 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 acknowledgment, or otherwise: Provided that this subsection shall
not deprive a purchaser of the right to require the production, or an abstract
or copy of-

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

        (ii)   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

        (iii)  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, he 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 sold 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, he
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 he requires them to be incurred for the purpose of verifying
the abstract or any other purpose, that is to say-

   (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 possession of the vendor or
        his mortgagee or trustee, and the expenses of all journeys incidental
        to such production or inspection; and

   (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 his mortgagee or trustee, and
        all attested, stamped, office or other copies or abstracts of, or
        extracts from, any records or other documents aforesaid, not in the
        possession of the vendor or his mortgagee or trustee-

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

(5) On a sale of any property in lots, a purchaser of two or more lots, held
wholly or partly under the same title, shall not have a right to more than one
abstract of the common title, except at his own expense.

(6) Recitals, statements and descriptions of facts, matters and parties
contained in deeds, instruments, Acts of Parliament or statutory declarations,
twenty years old at the date of the contract, shall, unless and except so far
as they are proved to be inaccurate, or to be inconsistent with any statutory
record of any dealing, 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
his 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 his expense,
and the vendor shall bear the expense of perusal and execution on behalf of
and by himself, 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)  he retains any part of the land to which the documents relate; or

   (b)  the document is an 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 shall apply to contracts for sale made
before or after the commencement of this Act, and shall apply to contracts for
exchange in like manner as to contracts for sale, except that it shall apply
only to contracts for exchange made after such commencement:

Provided that this section shall apply subject to any stipulation or contrary
intention expressed in the contract.

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