Insights from the AIC NSW Kiama Education Day

The Australian Institute of Conveyancers (AIC) NSW recently hosted an enlightening Kiama Education Day, bringing together industry experts to discuss critical topics in conveyancing and property law. The event covered a range of subjects from plan reading and the complexities of easements and covenants, to managing strata defects and understanding the nuances of planning law. Each speaker provided valuable insights into their respective fields, highlighting the importance of staying updated with the latest developments and legal requirements in the ever-evolving landscape of conveyancing in New South Wales.

Read more about each speaker and their topic of discussion: 

Plan reading for conveyancers

Bob Harrison, registered surveyor, covered the issues involving Surveyors having to identify or re-establish a parcel of land boundary using modern survey methodology. He spoke about the various sources of historical and current plan/diagram information available to Surveyors in combination with the current SixMaps system used by NSW Government. He also highlighted the risk for property purchasers in not engaging a surveyor to do an identification survey to confirm the boundaries of a property. There have been several instances where a property has been built in a position which encroaches onto the adjoining property. This then led to the final subject on Delimitation plans which are plans produced when dealing with land that has never been accurately surveyed and registered at LRS NSW.

Easements and covenants

Chris Conolly, Partner at HWL Ebsworth Lawyers, spoke on the definition of an Easement and how it can affect a parcel of Land. An Easement gives an owner a right to cross or otherwise use someone else’s land for a specified purpose. Section 88B of the Conveyancing Act 1919 (NSW) contains details on the creation and release of Easements, profits a prendre and restrictions on use of land by plans.

There are several different types of Easements including Express Easements, Sec 88B Instruments, Transfer Granting Easement and Transfer including Easement. Electronic Lodgment is now required (subject to exemptions). A Transfer Granting Easement is Lodged using LRS NSW Form 01TG and must be Lodged as a Dealing with Exception and accompanied by a Lodgment Rules Exception Form. Chris highlighted the case of Westfield Management Ltd V Perpetual Trustee Co Ltd [2007] HCA45.

Chris next spoke about Covenants and how they can affect a property. A Covenant is a form of agreement that is registered on title that creates an obligation. The covenant may restrict the use of the land or specify that the owner must abide by a certain condition. Repair/maintenance Covenants were covered and Positive Covenants as a condition of an Easement had cases quoted including Aust-One Investments Pty Ltd v New World Investments Pty Ltd [2022] NSWSC 137.

Managing the risks of strata defects & the Home Building Act 1989 (NSW)

Garth Brown, Licensed Conveyancer, pointed out that there are a couple of avenues available to people in Strata Schemes when defects arise.

Under the Home Building Act 1989 (NSW), Statutory Warranties provide homeowners with a 2-year warranty period for minor defects and 6 years for major defects. A major defect is one that is likely to cause the building to be unsafe for use or uninhabitable.

Home Warranty Insurance, which in NSW it is now known as Home Building Compensation Cover (HBC), helps homeowners if their builder is unable to complete building work or fix defects because of insolvency, death, disappearance, or Licence Suspension.

Garth spoke about a proposed Decennial Liability Insurance for unit blocks over 3 storeys in which developers or builders take out an insurance policy which would cover owners for any serious building defects for up to 10 Years. There is talk that this form of insurance could possibly replace the 2% defects bond which developers currently deposit with the government.

Planning law for conveyancers

Steven Griffiths, Partner at Bartier Perry Lawyers, reviewed the sections 10.7(2) and (5) Planning Certificates and explained the general inclusions and exclusions associated with each certificate. These Certificates replaced the sections 149(2) and 149(5) Certificates. A current section 10.7 Certificate must be attached to all Contracts of Sale.

The introduction of the Environmental Planning and Assessment Act 1979 (NSW) had a major influence on planning administration for NSW as it created planning instruments, regulations, certificates, and enforcement actions for land.

Unauthorised works were covered and the implications/risks for both vendor and purchaser highlighted via several examples. Photos were displayed of terrace houses with enclosed verandas and bedrooms with no windows. A purchaser can now obtain a Building information Certificate from Council to ensure that what is being purchased is not going to be the subject of an action by council, particularly for remedial works.

Heritage Planning is covered by both: State Heritage – The State Heritage listings and specialist advice is available online and Local Heritage – Legislation and Environmental Planning Instruments relating to Local Heritage planning can also be sourced online. An NSW Planning Portal is also available which allows the tracking of DA progress.

This event underscored the dynamic nature of conveyancing and property law in NSW, offering attendees a wealth of knowledge and strategies to better serve their clients and navigate the complex property landscape. It also emphasised the critical role of ongoing education and adaptation in staying compliant and informed in a field that continuously evolves with legislative and technological changes. For conveyancers and legal professionals involved in property transactions, staying abreast of such educational opportunities is invaluable in ensuring high standards of practice and client service. InfoTrack similarly offers a range of educational CPD webinars and events, which you can access here.

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