Does the s.149 certificate attached to the Contract have to be current?
Good question! The short answer is Yes, but its best explained by looking at the law behind this. You would have now read that the Conveyancing Act and Conveyancing (Sale of Land) Regulations provide that there are certain documents that must be included in all contracts for the sale of residential land. The Conveyancing Act and Conveyancing (Sale of Land) Regulations also provide that every contract for sale of land will include certain terms and certain warranties.
One of these warranties given by a seller is that the s.149 zoning certificate attached to the contract specifies the true status of the land in relation to the matters required to be disclosed in the certificate. If the s.149 certificate was ordered 12 months ago and at that time the land was permitted to be used as a duplex, and then months later Council resolved that the land was for large houses only, then you as the seller have breached your warranty that the s.149 certificate specifies the true status of the land- unless an up to date certificate was obtained.
Unlike the consequence for failing to attach the prescribed documents to the contract (in which case the buyer can simply pull out) a breach of the warranty does not automatically mean that the buyer can pull out. Instead, the Conveyancing (Sale of Land) Regulation says that the buyer must first prove that (a) the seller did not disclose the change to the buyer, (b) the buyer was unaware of the change in the s.149 from his own enquiries and (c) the matter is such that the buyer would not have entered into the contract had they been aware of the true circumstances.
If we take the example above (the change in permitted use from duplex to house only), if the buyer was not looking to build a duplex then it would be much more difficult for that buyer to pull out of the contract based on a breach of the warranty than if the buyer was a builder or developer looking to knock down the house and erect a duplex.
Given the minefield of legal repercussions for failing to include the correct or up to date certificates and searches in the contract its best to ensure that the contract is prepared by a solicitor or conveyancer aware of the risks and any changes in the law so that you receive the best advice. Prime Conveyancing is staffed by property solicitors, not conveyancers and our costs to act for you on your sale (or purchase!) are fixed so there are no surprises and you know what the fees are before we start work.
Even better than our fixed fixed Conveyancing is the fact that we offer Zero dollar contract preparation, meaning that you pay nothing for Prime Conveyancing to prepare the contract in accordance with the Conveyancing Act and Conveyancing (Sale of Land) Regulations – including all of the required certificates, and send same to the real estate agent.
Prime Conveyancing will only invoice you when the property is sold (when you get the cash we get the paid) or if you decide to take the property off the market (and then we will only invoice you a small fee), so why not contact us now or Get a Quote Now by clicking here!