Part 2Contracts for sale of land or businesses

Part 2—Contracts for sale of land or businesses 4—Forms A form set out in Schedule 1 must be completed in accordance with the instructions contained in the form and, if a form indicates that a particular document is to be attached to the form, that document must be so attached. 5—Qualified accountant For the purposes of paragraph (a) of the definition of qualified accountant in section 3 of the Act, the required qualification in accounting is membership of— (a) CPA Australia; or (b) Chartered Accountants Australia and New Zealand; or (c) the Institute of Public Accountants; or (d) the Association of Taxation and Management Accountants; or (e) the National Tax and Accountants' Association Limited as a Fellow. 6—Cooling-off—form of certificate of legal practitioner as to independent advice For the purposes of section 5(7)(b) of the Act, the form of certificate set out in Form 3 Part A is approved for use by a legal practitioner certifying as to the giving of independent legal advice to a purchaser before the purchaser enters into a contract for the sale of land or a small business. 7—Sale of land—instalment agreements Pursuant to section 6(4)(b) of the Act, section 6 of the Act does not apply in relation to a contract for the sale of land by the Minister for Infrastructure and Transport, or by the Urban Renewal Authority with respect to sale deferred purchase arrangements under the Industrial and Commercial Premises Scheme. 8—Sale of land—form of vendor's statement For the purposes of section 7(1) of the Act, a statement is in the required form if it comprises— (a) Form 1 Parts A, B and C; and (b) the following headings and items of the table of particulars set out in Division 1 of the Schedule of Form 1: (i) heading "1. General" and items 1.1, 1.2, 1.3 and 1.4; (ii) heading "5. Development Act 1993 (repealed)" and item 5.1; (iii) heading "6. Repealed Act conditions" and item 6.1; (iv) heading "29. Planning, Development and Infrastructure Act 2016" and items 29.1 and 29.2; and (c) such other items in that table as contain prescribed encumbrances or charges that affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale (and the headings to those items); and (d) if the vendor acquired a relevant interest in the land within 12 months before the date of the contract of sale—that part of Division 2 of the Schedule of Form 1 headed "Particulars of transactions in last 12 months"; and (e) such other parts of Division 2 of the Schedule of Form 1 as contain the matters that affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale; and (f) if the land subject to the sale is a community lot under the Community Titles Act 1996 or a unit under the Strata Titles Act 1988—the notice in Division 3 of the Schedule of Form 1. 9—Sale of land—particulars required, prescribed encumbrances and prescribed matters For the purposes of section 7(1)(b) of the Act— (a) the particulars required to be set out in the vendor's statement are the particulars required by the Schedule of Form 1; and (b) the encumbrances specified in Division 1 of the Schedule of Form 1 are prescribed encumbrances; and (c) the matters specified in Division 2 of the Schedule of Form 1 are prescribed matters to the extent that they affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale. 10—Sale of small business—form of vendor's statement For the purposes of section 8(1) of the Act, a statement is in the required form if it comprises— (a) Form 2 Parts A, B, C and D; and (b) Form 2 Schedule 1; and (c) if land is sold under a contract for the sale of a small business— (i) Part 1 of the table of particulars set out in Form 2 Schedule 2 Division 1; and (ii) such items in Part 2 of that table as contain prescribed encumbrances or charges that affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale; and (iii) if the vendor acquired a relevant interest in the land within 12 months before the date of the contract of sale—that part of Form 2 Schedule 2 Division 2 headed "Particulars of transactions in last 12 months"; and (iv) such other parts of Form 2 Schedule 2 Division 2 as contain the matters that affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale; and (v) if the land subject to the sale is a community lot under the Community Titles Act 1996 or a unit under the Strata Titles Act 1988—the notice in Form 2 Schedule 2 Division 3; and (d) if the matters set out under the heading "Particulars relating to environment protection" in Form 2 Schedule 2 Division 2 affect, presently or prospectively, the business subject to the sale—the parts of that Division that contain those matters; and (e) if— (i) the business the subject of the sale involves the keeping or handling of livestock, the handling of livestock products or the handling of property in connection with such an activity; and (ii) the matters set out under the heading "Particulars relating to Livestock Act 1997" in Form 2 Schedule 2 Division 2 affect, presently or prospectively, that business, the parts of that Division that contain those matters. 11—Sale of small business—prescribed particulars For the purposes of section 8(1)(b) of the Act, the prescribed particulars are— (a) the particulars set out in Form 2 Schedule 1; and (b) if the matters set out under the heading "Particulars relating to environment protection" in Form 2 Schedule 2 Division 2 affect, presently or prospectively, the business subject to the sale—the particulars set out in that form relating to those matters; and (c) if— (i) the business the subject of the sale involves the keeping or handling of livestock, the handling of livestock products or the handling of property in connection with such an activity; and (ii) the matters set out under the heading "Particulars relating to Livestock Act 1997" in Form 2 Schedule 2 Division 2 affect, presently or prospectively, that business, the particulars set out in that form relating to those matters. 12—Sale of small business—form of accountant's certificate For the purposes of section 8(2) of the Act, the certificate to be signed by or on behalf of a qualified accountant must be in the form set out in Form 2 Part D. 13—Sale of land—prescribed inquiries (1) For the purposes of section 9(1)(a) and (2)(a) of the Act, the following inquiries in relation to land subject to a sale are prescribed: (a) to inquire of the vendor as to what mortgages, charges, prescribed encumbrances and prescribed matters affect, presently or prospectively, title to, or the possession or enjoyment of, the land; (b) to search any title kept at the Lands Titles Registration Office on which is entered any interest that affects, presently or prospectively, title to, or the possession or enjoyment of, the land and to obtain particulars of any such interest; (c) to request the vendor to produce any document in the possession of the vendor relating to any mortgage, charge or prescribed encumbrance to which the land is subject, or relating to any prescribed matter that affects, presently or prospectively, title to, or the possession or enjoyment of, the land and to inspect any document so produced; (d) if a document referred to in paragraph (c) is no longer in the possession of the vendor, to take all practicable measures to inspect the original or a copy of such a document; (e) to inquire from the vendor and the council as to the existence of insurance under Part 5 Division 3 of the Building Work Contractors Act 1995 (or the repealed Builders Licensing Act 1986) in relation to any building work on the land; (f) to inquire— (i) in relation to a charge or prescribed encumbrance specified in column 1 of table 1 in Schedule 3, of the bodies specified in column 2 opposite, whether or not the council, a statutory authority or a prescribed body has the benefit of such a charge or prescribed encumbrance over the land; and (ii) in relation to a matter specified in column 1 of table 2 in Schedule 3, of the bodies specified in column 2 opposite, whether or not the matter affects, presently or prospectively, title to, or the possession or enjoyment of, the land; (g) to seek, from the vendor and the bodies specified in column 2 of the tables set out in Schedule 3, the particulars and documentary material required by the relevant part of the prescribed form of all mortgages, charges, prescribed encumbrances and prescribed matters in relation to which inquiries are made in accordance with paragraphs (a), (e) and (f); (h) if a community lot (including a strata lot) or a development lot under the Community Titles Act 1996 or a unit under the Strata Titles Act 1988 is being sold, to seek from the vendor and the community or strata corporation (or, where specified, the Lands Titles Registration Office) the particulars and documentary material required by the relevant part of the prescribed form in relation to the lot or unit. (2) In subregulation (1), a reference to the relevant part of the prescribed form is a reference to— (a) in the case of the sale of land not under a contract for the sale of a business—the Schedule of Form 1; or (b) in the case of the sale of land under a contract for the sale of a small business—Form 2 Schedule 2. 14—Sale of land—form of agent's certificate For the purposes of section 9(1)(b) and (2)(b) of the Act, the certificate signed by the agent must— (a) if land is being sold but not under a contract for the sale of a business—be in the form set out in Form 1 Part D; or (b) if land is being sold under a contract for the sale of a small business—be in the form set out in Form 2 Part E. 15—Sale of land—provision of information etc by councils, statutory authorities and prescribed bodies (1) For the purposes of section 12(1), (2) and (3) of the Act, a council, statutory authority or prescribed body must provide such particulars and documentary material as regulation 13 requires to be sought from that body. (2) For the purposes of section 12(2) of the Act, an administrative unit of the Public Service is a prescribed body. (3) For the purposes of section 12(3) of the Act, an application must be accompanied by— (a) the appropriate prescribed fee; and (b) the following documents: (i) in the case of an application relating to land in respect of which a certificate of title has been issued under the Real Property Act 1886—a copy of the certificate of title; (ii) in the case of an application relating to land subject to a lease granted by the Crown under an Act—a copy of the lease; (iii) in any other case—a copy of a document of title that sufficiently identifies the land in relation to which the application is made. 16—Prescribed notice to be given to purchaser For the purposes of section 13A of the Act, the prescribed notice must be printed or typewritten in not smaller than 12‑point type and in the form, and contain the information, set out in Schedule 2. 17—Defences For the purposes of section 16 of the Act— (a) the persons and bodies to which inquiries to obtain information are required to be made are as follows: (i) for information relating to a mortgage, charge or prescribed encumbrance specified in column 1 of table 1 set out in Schedule 3—the persons and bodies specified in column 2 opposite; (ii) for information relating to a matter specified in column 1 of table 2 set out in Schedule 3—the persons and bodies specified in column 2 opposite; (iii) for information relating to a community lot (including a strata lot), a development lot or a community corporation under the Community Titles Act 1996 or a unit or strata corporation under the Strata Titles Act 1988—the community or strata corporation (or, where Division 2 of the Schedule of Form 1 or Form 2 Schedule 2 Division 2 indicates that the information may be obtained from the community or strata corporation or the Lands Titles Registration Office—the community or strata corporation or the Lands Titles Registration Office); and (b) the certificate signed by the legal practitioner must be in the form set out in Form 3 Part A; and (c) the instrument of waiver signed by the purchaser must be in the form set out in Form 3 Part B. 18—Authority to act as agent (1) For the purposes of section 20(1)(c)(ii) of the Act, the prescribed number of days is 90. (2) For the purposes of section 20(1)(e) of the Act, a sales agency agreement must comply with the following: (a) the agreement must be printed or typewritten in not smaller than 10‑point type, however, variations to the sales agency agreement may be handwritten provided they are legible; (b) the agreement must specify— (i) the land that is the subject of the agreement (whether by street address or description sufficient to identify the land); and (ii) the full names of the vendor and agent; and (iii) the agent's registration number; and (iv) the chattels that are included in or excluded from sale; and (v) details of the circumstances in which the agent will be entitled to receive commission or fees for the sale of the land, including circumstances in which the sale may not be attributable to the agent, or may not be directly or completely attributable to the agent; (c) the agreement must contain a term by which the agent warrants that the agent will comply with all the agent's obligations under the Act and these regulations and will act in the vendor's best interests. (3) Auctioneers are exempt from the requirements of section 20(1) and (3) of the Act insofar as they act on behalf of a vendor or purchaser in the sale of land or a business only by performing the functions of an auctioneer, including having or exercising an auctioneer's authority to sign a contract for the sale of land or a business on behalf of the vendor or purchaser after the fall of the hammer to the highest bidder at an auction. (4) An agent is exempt from the requirements of section 20(1) and (3) of the Act insofar as the agent acts, in the sale of land or a business, on behalf of— (a) the South Australian Housing Trust; or (b) the Public Trustee; or (c) the Urban Renewal Authority. (5) An agent is exempt from the requirement of section 20(1)(c)(ii) of the Act to specify the duration of a sales agency agreement insofar as— (a) the agent acts, in the sale of the land that is the subject of the agreement, on behalf of a vendor who carries on the business of a developer of land; and (b) the land or part of the land has been subdivided by the vendor. (6) For the purposes of section 20(6a)(b)(i)(B) of the Act, the prescribed number of days is 90. (7) For the purposes of section 20(6a)(b)(ii) of the Act, the prescribed number of days is 180. 19—Requirements relating to offers to purchase residential land For the purposes of section 21(1)(a) and (2)(a) of the Act, an offer for residential land must contain the following details: (a) the offer must, if it is in the form of a contract of sale document, include the following statement at the head of the document printed or typewritten in not smaller than 12‑point bold type: Notice to purchaser: This is a contract for the sale of residential land. You may be bound by the terms of this contract if it is signed by both you and the vendor. You should seek independent legal advice if you are unsure about the terms contained in this contract. It is advisable to check section 5 of the Land and Business (Sale and Conveyancing) Act 1994 regarding any cooling‑off rights that you may have and how to exercise them.; (b) the offer must, in any other case— (i) be headed "NOTICE OF OFFER TO PURCHASE RESIDENTIAL LAND" printed or typewritten in upper case type not smaller than 14‑point followed by the following statement printed or typewritten in not smaller than 12‑point bold type: Note: This is not a contract of sale document. Both the purchaser and vendor must sign a contract of sale document before this offer becomes legally binding. An offer may be withdrawn at any time before signing a contract of sale document. If you do enter into a contract of sale, it is advisable to check section 5 of the Land and Business (Sale and Conveyancing) Act 1994 regarding any cooling‑off rights that you may have and how to exercise them.; and (ii) include the following details, printed or typewritten in not smaller than 12‑point type: (A) the full name of the offeror; (B) the land that is the subject of the offer (whether by street address or description sufficient to identify the land); (C) the amount of the offer; (D) any conditions to which the offer is subject (for example, finance, sale of another property or satisfactory building or land inspection report); (E) the proposed date of settlement or length of time between the signing of the contract of sale and settlement. 20—Representations as to likely selling price in marketing residential land Section 24A(1)(c) of the Act does not apply in relation to statements made in marketing land for sale by auction. 21—Financial and investment advice For the purposes of section 24B of the Act, an agent or sales representative who provides financial or investment advice to a person in connection with the sale or purchase of land or a business must— (a) in the case of oral advice—immediately before giving the advice, give the person warning of the matters set out in Schedule 4 orally, prefaced by the words "I am legally required to give you this warning"; or (b) in the case of written advice—at the same time as giving the advice or as soon as reasonably practicable after giving the advice, give the person a notice in the form set out in Schedule 4, printed or typewritten in not smaller than 12‑point type. 22—Agent to disclose certain benefits connected with sale or purchase For the purposes of section 24C(2) of the Act, the disclosure must be in the form set out in Schedule 5 printed or typewritten in not smaller than 12‑point type. 23—Agent to supply valuation in prescribed circumstances (1) For the purposes of section 24E of the Act, the prescribed circumstances in relation to the sale of land by an agent are circumstances in which— (a) the agent or a sales representative or another person employed by the agent has made unsolicited contact (other than by advertisement or mail) with the owner of the land; and (b) as a result of that contact, the agent has been authorised to sell the land on behalf of the owner; and (c) negotiations by the agent or sales representative for the sale of the land commence or are to commence with any person without prior advertising of the land by the agent for sale to the public. (2) An application for the approval of the Commissioner under section 24E(1) of the Act must be made to the Commissioner in the form approved by the Commissioner. 24—Agent not to act for both purchaser and vendor of land or business Auctioneers are exempt from the application of section 24F of the Act insofar as they act on behalf of both a vendor and purchaser in the sale of land or a business only by performing the functions of an auctioneer, including having or exercising an auctioneer's authority to sign a contract for the sale of land or a business on behalf of the vendor or purchaser after the fall of the hammer to the highest bidder at an auction. 25—Restriction on obtaining beneficial interest in selling or appraising property (1) For the purposes of section 24G(5) of the Act— (a) the Commissioner may approve the obtaining by the agent or sales representative of a beneficial interest in the land or business on application by the agent or sales representative to the Commissioner in the form approved by the Commissioner; and (b) the Commissioner may require the applicant to provide the Commissioner with specified information to enable the Commissioner to determine the application, verified, if the Commissioner so requires, by statutory declaration; and (c) the Commissioner may refuse the application— (i) if the applicant has not provided the information required by the application or the Commissioner; or (ii) if, in the opinion of the Commissioner— (A) the information provided by the applicant is inaccurate, incomplete or calculated to mislead; or (B) the agent or sales representative is not acting in the best interests of the vendor; or (C) the vendor is likely to suffer detriment as a result of the transaction; or (iii) if, in the case of a beneficial interest in land (whether to be obtained by the agent or sales representative in their own right or by an associate of the agent or sales representative)— (A) a formal written valuation of the land has not been carried out; or (B) such a valuation has been carried out but— • the person who carried out the valuation was not authorised to carry on business as a land valuer under the Land Valuers Act 1994; or • the person who carried out the valuation was not approved by the Commissioner; or • the cost of the valuation was not borne by the agent, sales representative or associate (as the case may be) who obtained the beneficial interest; or (C) the vendor has not been given a copy of the land valuer's report. (2) For the purposes of paragraph (a)(vii) of the definition of associate in section 24G(11) of the Act, a relationship between the agent or sales representative and a person is prescribed if the agent or sales representative will, to the knowledge of the agent or sales representative, receive a benefit from the other person in connection with a transaction or dealing relating to the land or business subsequent to the agent or sales representative successfully negotiating the sale of the land or business for the vendor. (3) An agent is exempt from the requirements of section 24G(1) and (9) of the Act in relation to the obtaining of a beneficial interest in land or a business that the agent is authorised to sell if— (a) the beneficial interest is obtained as a result of the sale of the land or business; and (4) A sales representative employed by an agent is exempt from the requirements of section 24G(2) of the Act in relation to the obtaining of a beneficial interest in land or a business that the agent is authorised to sell if— (a) the beneficial interest is obtained as a result of the sale of the land or business; and (5) An agent is exempt from the requirements of section 24G(3) of the Act in relation to the obtaining of a beneficial interest in land or a business that the agent appraises if— (a) the beneficial interest is obtained as a result of the sale of the land or business following the appraisal; and (6) A sales representative is exempt from the requirements of section 24G(3) of the Act in relation to the obtaining of a beneficial interest in land or a business that the sales representative appraises if— (a) the beneficial interest is obtained as a result of the sale of the land or business following the appraisal; and (7) A public auction of land or a business satisfies the requirements of this subregulation if details of the auction have been advertised, at least once per week over a period of at least 2 consecutive weeks immediately before the auction, in a newspaper circulating generally throughout the State or the area in which the land or business is situated or on a website the primary function of which is to advertise real estate sales. (8) For the purposes of section 24G(10b) of the Act, the form prescribed for a certificate referred to in that section is the form determined by the Commissioner. 26—Standard conditions of auction for residential land For the purposes of section 24I(1) of the Act, the conditions set out in Schedule 6 are prescribed. 27—Preliminary actions and records required for auctions of residential land (1) For the purposes of section 24J(1)(c), (e) and (j) of the Act— (a) the following details relating to an auction must be included in the auction record before the commencement of the auction: (i) the street address of the land or a description of the land sufficient to identify it; (ii) the full name of the vendor, the responsible agent and the auctioneer; (iii) the date and time of the auction; (iv) for the bidders register— (A) the full name and address of each person intending to bid at the auction (subject to the requirements of paragraph (c)); and (B) a general description of the proof of identity produced by the person in accordance with paragraph (c) and the signature of the agent verifying that the agent has sighted it; and (C) if the intending bidder is proposing to bid on behalf of another person, the full name and address of the other person and a statement that the intending bidder is proposing to bid on behalf of that person; and (b) the following details relating to bidding or subsequent events must be entered in the auction record: (i) for the bidders register if the auction is interrupted in order to register a further person as an intending bidder in the register— (A) the full name and address of the person (subject to the requirements of paragraph (c)); and (B) a general description of the proof of identity produced by the person in accordance with paragraph (c) and the signature of the agent verifying that the agent has sighted it; and (C) if the intending bidder is proposing to bid on behalf of another person, the full name and address of the other person and a statement that the intending bidder is proposing to bid on behalf of that person; (ii) if the land is sold at the auction— (A) the full name and address of the purchaser; and (B) the amount for which the land was sold; (iii) if the land is passed in at the auction but the auctioneer, on the same day, conducts further negotiations for the sale of the land with a person by whom, or on whose behalf, a bid for the land was made at the auction (whether or not resulting in a sale)— (A) the full name and address of that person; and (B) the amounts offered by that person for the land during those negotiations; and (C) in the case of a resulting sale of the land on that day to that person—the amount for which the land was sold; and (c) details of an intending bidder must not be entered in the bidders register unless— (i) the intending bidder has produced to the agent proof of their identity in the form of a drivers licence, passport, credit or debit card or gas, electricity or telephone account or similar document or card issued to the person; and (ii) if the intending bidder is proposing to bid on behalf of another person, the bidder has— (A) provided to the agent a written authority to so act signed by the other person; and (B) produced to the agent proof of the other person's identity in the form of a drivers licence, passport, credit or debit card or gas, electricity or telephone account or similar document or card issued to the other person, or, in the case of a body corporate, the certificate of the body's incorporation. (2) For the purposes of subregulation (1)(c)(ii), an authority or proof of identity may be an original document or a photocopy, facsimile copy or electronically scanned copy of the original document. (3) There are exemptions from the application of section 24J(3) of the Act as follows: (a) the responsible agent or, if a different person, the auctioneer is exempt insofar as the agent or auctioneer— (i) discloses or makes use of information in the auction record relating to a person accepted by the auctioneer as having made the highest bid above the reserve price for a purpose connected with the auction or sale of the land on behalf of the vendor; or (ii) discloses to the vendor the name of a person registered in the bidders register (whether as a bidder or a person on whose behalf bids may be made); or (iii) discloses or makes use of information in the auction record as permitted by section 24J(3) of the Act; (b) the vendor is exempt insofar as the vendor discloses or makes use of information in the auction record disclosed to the vendor under this regulation; (c) a person who has the auction record or has had access to it is exempt insofar as the person does anything with respect to the record, or information in it, for the purposes of the administration or enforcement of the Act or as required or authorised by a court or tribunal constituted by law. 28—Collusive practices at auctions of land or businesses For the purposes of section 24L(3) of the Act, notice of the material parts of that section must be— (a) in the form set out in Schedule 7, printed or typewritten in not smaller than 12‑point type; and (b) made available for perusal by members of the public at the place at which the auction is to be conducted for at least 30 minutes before the auction is due to commence.