Prescribed Documents

What are prescribed documents?  

These are documents that must be included in a Contract of Sale in NSW according to The Conveyancing (Sale of Land) Regulation 2010 under Schedule 1 Prescribed Documents.

The documents are prepared by the Vendor’s Conveyancer/Solicitor to inform the potential buyer of relevant information about the property the buyer needs to be aware of.

List of prescribed documents

1. Section 149 (2) Certificate – (Council zoning of land residential or commercial etc.)
2. Service Drainage Diagram – (Location of services)
3. Title & Title notations – (Owners & restrictions on Land use)
4. Plan or Deposit or Strata Plan – (Location of Lot)

Are attached prescribed documents compulsory? 

YES in New South Wales it is compulsory for the agent to have a copy of the Schedule 1 Prescribed Documents with the Contract of Sale BEFORE they can market the property in accordance with the Conveyancing (Sale of Land) Regulation 2010 (NSW).

Why are they needed?

To protect the Purchaser.

What happens if the prescribed documents are not attached?  

The Conveyancing Act and Conveyancing (Sale of Land) Regulations provide that if the Prescribed Documents are not included in the sale of land contract, the buyer may rescind (pull out of) the contract for the seller’s failure to attach to the contract the documents prescribed at any time within 14 days after the making of the contract, unless the contract has been completed.

Although under the general law and the Conveyancing (Sale of Land) Regulation 2010 (NSW) there are significant disclosure requirements on vendors in that vendors need to disclose “prescribed documents”, a purchaser should, after exchange, make enquiries to determine whether any of the “prescribed warranties” have been breached – e.g. unapproved Council Structures or Boundary disputes.

If prescribed documents or standard conditions are missing: 

NOTE: if a Contract of Sale is exchanged in haste sometimes by Sales Agents – and any of the Prescribed Documents are missing – the Purchaser can rescind the Contract within 14 days of exchange of Contracts (under the Conveyancing Sale of Land Act).

And if Standard Conditions are not present the Purchaser can rescind the Contract anytime up to Settlement – been established by case law.

Under review

Currently (as at August/September 2016) the NSW Office of the Registrar General are conducting a Review of the Conveyancing (Sale of Land) Regulation 2010 and the Conveyancing Process in New South Wales.

Among the issues under review are documents and it has already been suggested in the Review that the following documents should be made additional compulsory attachments to be included in the contract for sale of land:

A. Pest and Building Inspection Reports

B. Strata Record inspection Report

C. Sewerage Location diagram

Garth Brown’s Comments

Common questions we receive from a Purchaser about Prescribed Documents and other non-mandatory documents are …

“Why didn’t the Vendor include a ‘Land Identification Survey Certificate’ or a ‘Council Building Certificate’? Why do I have to spend all this money?’ shouldn’t they be included in the Contract of Sale? 

Good questions and the answer is simple, those documents are NOT Prescribed Documents and therefore are not required by the Vendor to include under the Regulation.

The Land Identification Survey Certificate and a Building Certificate are both valuable documents that identify approved boundaries and unapproved Council structures, if these are not sighted and attached to confirm authenticity there can be serious problems after Settlement, that is why, considering the small outlay for these important documents compared with the cost of buying a property plus the Stamp Duty, we always recommend the Purchaser include them for peace of mind.

And as a prudent Conveyancing Practice we also automatically Title Insure every Purchaser to protect their property interests in the long term.