by Peter Mericka B.A., LL.B Real Estate Lawyer and Qualified Practising Conveyancer Victoria Lawyers Real Estate
To conclude the year, we will finish off with something for all real estate professionals to consider.
I have also set some homework for those who wish to make a contribution.
“Dumb & Dumber”What follows is a set of facts. Read through them carefully, and form your own conclusions.
This is dumb:
- In Victoria anyone can be a conveyancer, and no licence, insurance or qualifications are required.
- In Victoria conveyancers are not allowed to give legal advice to their clients.
- In Victoria conveyancers are not allowed to perform legal work.
- In Victoria anyone who effects or negotiates the sale or purchase of real estate on behalf of another person is an “estate agent” under the definition provided at Section 4 of the Estate Agents Act 1980, and must comply with that Act unless they are exempt.
- In Victoria a lawyer who effects or negotiates the sale or purchase of real estate is exempt from the provisions of the Estate Agents Act 1980.
- In Victoria an estate agent who “fills up” a standard form contract or a contract prepared by a lawyer is performing legal work, and commits a criminal offence unless they are exempt.
- In Victoria estate agents who “fill up” blank contract documents are exempt from prosecution under 2.2.2 of the Legal Profession Act 2004, because of an exemption at Section 53A of the Estate Agents Act 1980.
- In Victoria conveyancers do not have an exemption similar to that provided to estate agents under Section 53A of the Estate Agents Act 1980, and they commit a criminal offence if they “fill up” a standard form contract or a contract prepared by a lawyer.
- If a conveyancer negotiates the sale of real estate on behalf of a vendor or a purchaser, the conveyancer commits a criminal offence by acting as an estate agent without a licence, as conveyancers have no exemption similar to that applicable to lawyers.
- The estate agent, who is an “estate agent” under the Estate Agents Act 1980 and who is not permitted to draft terms and conditions in a real estate contract, asks the conveyancer who has no licence, qualifications or insurance to prepare a contract for a real estate sale on behalf of the vendor client.
- The conveyancer, who has no licence, qualification or insurance, prepares the Section 32 Vendor Statement and the Contract of Sale for the vendor client.
- If the estate agent or the vendor have any legal questions about the Section 32 Vendor Statement or the Contract of Sale prepared by the conveyancer, the conveyancer cannot answer them because she is not a lawyer.
- While the estate agent, is permitted (through an exemption under Section 53A of the Estate Agents Act) to fill in the blank Contract of Sale prepared by a lawyer, he is not permitted to use one prepared by the unqualified conveyancer.
- The unqualified conveyancer is not permitted to complete the Contract of Sale she has prepared, because she is not exempted under Section 53A, and she does not hold an estate agent’s licence.
- Lawyers are the only conveyancers in Victoria who are qualified to perform all aspects of a conveyancing transaction, including the giving of legal advice and the performance of legal work, and yet they are excluded from membership of the Australian Institute of Conveyancers (Victorian Division).
- Lawyers are “estate agents” by definition under the Estate Agents Act 1980, and are the only professionals permitted to negotiate the final terms and conditions of a real estate sale contract, and yet the REIV argues that a lawyer is not sufficiently qualified to hold an estate agent’s licence.
- Consumer Affairs Victoria is aware that estate agents are not as qualified as lawyers in selling real estate, but argue that an estate agent’s licence is necessary if a lawyer wants to display photographs of properties for sale.