Although the fundamental principle in the conveyancing process, i.e the procedure involved in documenting and transacting the buying and selling of real estate, is caveat emptor, i.e let the buyer beware, that doesn’t mean a purchaser (buyer) must take all the risk, it just means the purchaser must take care. Neither does it mean that a vendor (seller) has no responsibility for, or a duty of, appropriate disclosure of matters pertaining to the property he is selling.
In Australia the common law imposes on a vendor a very limited duty of disclosure of what are known as “latent” title defects, i.e those defects which cannot be discovered by a reasonable inspection of the title deed for the property or the property itself.
In Victoria the duty of disclosure has been expanded by legislation which affects sales of real estate made upon commercial terms. That legislation not only precludes unconscionable conduct by a Vendor or his agents but also prohibits misleading and deceptive conduct. As a result any incorrect information given in the course of trade or commerce (in connection with your sale) could be deemed misleading and deceptive conduct. This includes remaining silent on a pertinent issue.
A vendor’s obligation and duty of disclosure was substantially extended to enhance consumer protection by the introduction of Section 32 of the Sale of Land Act in 1983. The relevant provisions of Section 32 have been amended and amplified a number of times since and most recently in October 2014.
Broadly, the Section 32 requirements oblige a vendor to disclose numerous matters in and attach certain documents which affect the property being sold to, a Section 32 Vendors Statement. A failure to provide a Section 32 Vendors Statement to a purchaser before a purchaser signs a contract to buy, or the failure to disclose sufficient information or the provision of incorrect information can result in any Contract of Sale signed by a purchaser based on that insufficient or defective information being avoided by the purchaser at any time up until settlement.
If you would like us to represent you in connection with the conveyancing process associated with your sale and in order to ensure you are able to comply with your disclosure obligations simply complete and return the Vendor’s Checklist and we will be in touch with you.