South Australia
Land and Business (Sale and Conveyancing) Regulations 1995
under the Land and Business (Sale and Conveyancing) Act 1994

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Interpretation
Part 2—Contracts for sale of land or businesses
4	Forms
5	Qualified accountant
6	Cooling-off—form of certificate of legal practitioner as to independent advice
6A	Instalment contracts
7	Sale of land—form of vendor's statement
8	Sale of land—particulars required, prescribed encumbrances and prescribed matters
9	Sale of small business—form of vendor's statement
10	Sale of small business—prescribed particulars
11	Sale of small business—form of accountant's certificate
12	Sale of land—prescribed inquiries
13	Sale of land—form of agent's certificate
14	Auctioneer to make statements available
15	Sale of land—provision of information etc by councils and statutory authorities
16	Defences
Part 3—Dual representation
17	Circumstances in which conveyancer may act for both parties
18	Conveyancer must cease to act if conflict of interest arises
19	Meaning of conflict of interest
Schedule 1—Contracts for sale of land or businesses—forms
Schedule 2—Contracts for sale of land or businesses—bodies to whom inquiries are to be made
Schedule 3—Contracts for sale of land or businesses—fees
Schedule 4—Dual representation—forms
Schedule 5—Transitional provisions
1	Section 90 statements prepared before commencement of Act
2	Section 91 statements prepared before commencement of Act
Legislative history
Appendix—Divisional penalties and expiation fees

Part 1—Preliminary
1—Short title
These regulations may be cited as the Land and Business (Sale and Conveyancing) Regulations 1995.
2—Commencement
These regulations will come into operation on the day on which the Land and Business (Sale and Conveyancing) Act 1994 comes into operation.
3—Interpretation
	(1)	In these regulations, unless the contrary intention appears—
Act means the Land and Business (Sale and Conveyancing) Act 1994;
council, in relation to land being sold, means the council in whose area the land is situated.
	(2)	In these regulations, a reference to a form of a particular number is a reference to the form of that number set out in Schedule 1.
Note—
For definition of divisional penalties (and divisional expiation fees) see Appendix.

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)	the Australian Society of Certified Practising Accountants; or
	(b)	the Institute of Chartered Accountants in Australia; or
	(c)	the National Institute of Accountants; or
	(d)	the Association of Taxation and Management Accountants.
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 Part A of Form 3 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.
6A—Instalment contracts
Pursuant to subsection (4)(b) of section 6 of the Act, that section does not apply in relation to a contract for the sale of land by the Minister for State Development, or by the Land Management Corporation with respect to sale deferred purchase arrangements under the Industrial Premises Development Scheme.
7—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)	Parts A, B and C of Form 1; and
	(b)	such parts of the table of particulars set out in Division 1 of the Schedule of Form 1 as contain mortgages (item 1) and prescribed encumbrances items 2 to 7 (inclusive); and
	(c)	such other parts of that table as contain the prescribed encumbrances and charges (items 8 to 57 inclusive) that affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale; and
	(d)	if the vendor obtained title to 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.
8—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;
	(b)	the encumbrances specified in Division 1 of the Schedule of Form 1 are prescribed encumbrances;
	(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.
9—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)	Parts A, B, C and D of Form 2; and
	(b)	Schedule 1 of Form 2; and
	(c)	if land is sold under a contract for the sale of a small business—
	(i)	such parts of the table of particulars set out in Form 2 Schedule 2 Division 1 as contain mortgages (item 1) and prescribed encumbrances items 2 to 7 (inclusive); and
	(ii)	such other parts of that table as contain prescribed encumbrances and charges (items 8 to 57 inclusive) that affect, presently or prospectively, title to, or the possession or enjoyment of, the land subject to the sale; and
	(iii)	if the vendor obtained title to 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
	(d)	if the matters set out under the heading "Particulars relating to environment protection" or the heading "Particulars relating to the Stock Act 1990" 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.
10—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)	the particulars set out in Form 2 Schedule 2 Division 2 under the headings "Particulars relating to environment protection" and "Particulars relating to the Stock Act 1990" to the extent that the matters set out under those headings affect, presently or prospectively, the business the subject of the sale.
11—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 Part D of Form 2.
12—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; and
	(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; and
	(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; and
	(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; and
	(e)	to inquire from the vendor and the council as to the existence of insurance under Division 3 of Part 5 of the Building Work Contractors Act 1995 (or the repealed Builders Licensing Act 1986) in relation to any building work on the land; and
	(f)	if the agent or vendor has reason to believe that—
	(i)	the council or a statutory authority has the benefit of any charge or prescribed encumbrance over the land; or
	(ii)	the council or a statutory authority may be able to provide information as to whether a prescribed matter affects, presently or prospectively, title to, or the possession or enjoyment of, the land,
to inquire—
	(iii)	in relation to a charge or prescribed encumbrance specified in column 1 of table 1 set out in Schedule 2, of the bodies specified in column 2 opposite, whether the council or statutory authority has the benefit of such a prescribed encumbrance over the land; and
	(iv)	in relation to a matter specified in column 1 of table 2 set out in Schedule 2, of the bodies specified in column 2 opposite, whether the matter affects, presently or prospectively, title to, or the possession or enjoyment of, the land; and
	(g)	to seek, from the vendor and the bodies specified in column 2 of the tables set out in Schedule 2, 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); and
	(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 the particulars and documentary material required by the relevant part of the prescribed form in relation to the community 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;
	(b)	in the case of the sale of land under a contract for the sale of a small business—Schedule 2 of Form 2.
13—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 or some person acting on the agent's behalf 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 Part D of Form 1;
	(b)	if land is being sold under a contract for the sale of a small business—be in the form set out in Part E of Form 2.
14—Auctioneer to make statements available
For the purposes of section 11(b) of the Act, an auctioneer must cause public advertisement of the times and places at which a vendor's statement may be inspected to be included (in the form set out in Form 4)—
	(a)	in each public notice of the sale of the land or small business; or
	(b)	if the sale is notified in a newspaper, magazine or other publication, to be displayed prominently, in the advertisement or block of advertisements containing the notice of the sale.
15—Sale of land—provision of information etc by councils and statutory authorities
	(1)	For the purposes of section 12(1), (2) and (3) of the Act, a council or statutory authority must provide such particulars and documentary material as regulation 12 requires to be sought from that body.
	(2)	For the purposes of section 12(3) of the Act, an application must be accompanied by—
	(a)	the appropriate fee set out in Schedule 3; 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 original certificate of title or duplicate 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—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 2—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 2—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;
	(b)	the certificate signed by the legal practitioner must be in the form set out in Part A of Form 3;
	(c)	the instrument of waiver signed by the purchaser must be in the form set out in Part B of Form 3.

Part 3—Dual representation
17—Circumstances in which conveyancer may act for both parties
	(1)	For the purposes of section 30 of the Act, a conveyancer is authorised to act for both the transferor and transferee, or the grantor and grantee, of property or rights under a transaction if—
	(a)	the transferor and transferee or the grantor and grantee (in this Part referred to as both parties)—
	(i)	are related to one another by blood, adoption or marriage; or
	(ii)	are putative spouses (whether or not a declaration has been made under the Family Relationships Act 1975 in relation to the parties); or
	(iii)	are bodies corporate that are related to each other for the purposes of the Corporations Act 2001 of the Commonwealth; or
	(iv)	are a proprietary company and a person who is a shareholder or director of that company; or
	(v)	are registered as the proprietors of the relevant land as tenants in common or joint tenants with one another; or
	(vi)	carry on business in partnership with each other; or
	(b)	the conveyancer has obtained from both parties a written acknowledgment, or general authority, in the form set out in Schedule 4.
	(2)	However, a conveyancer is not authorised to act for both parties to a transaction if the conveyancer is subject to a conflict of interest in relation to the transaction.
18—Conveyancer must cease to act if conflict of interest arises
	(1)	If, in the course of acting for both parties to a transaction, the conveyancer becomes subject to a conflict of interest in relation to the transaction, the conveyancer must notify both parties in writing and cease to act in the matter.
Penalty: Division 7 fine.
	(2)	However, if both parties agree in writing that the conveyancer may continue to act for one of them, the conveyancer may continue to act for that party.
19—Meaning of conflict of interest
For the purposes of this Part, a conveyancer is subject to a conflict of interest in relation to a transaction if—
	(a)	the duties owed by the conveyancer to one party to the transaction conflict with the duties owed by the conveyancer to the other party to the transaction (for example, if the conveyancer is obliged, in fulfilling his or her duty to one party, to withhold information or advice from the other party that, by reason of the conveyancer's duty to that other party, he or she should not withhold); or
	(b)	the conveyancer has a personal or pecuniary interest in the transaction arising otherwise than from the conveyancer's services as a conveyancer in respect of the transaction.

Schedule 1—Contracts for sale of land or businesses—forms

Schedule 2—Contracts for sale of land or businesses—bodies to whom inquiries are to be made

Table 1—Mortgages, charges and prescribed encumbrances
Column 1
Mortgage, charge or prescribed encumbrance Item number on forms 1 and 2	Column 2
Body to which inquiry is to be made	
1, 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 31, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58.	Department for Environment, Heritage and Aboriginal Affairs	
23, 25, 28, 30, 33.	The council	
5, 6, 7, 8, 9, 10, 24, 26, 27, 29, 32, 34, 36.	The council and Department for Environment, Heritage and Aboriginal Affairs	

Table 2—Matters affecting land
Column 1
Matter	Column 2
Body to whom inquiry is to be made	
Building indemnity insurance	The council	
Water allocation for irrigation purposes	Department for Environment, Heritage and Aboriginal Affairs	
Proclamations and orders under the Stock Act 1990:
Proclamation under section 14(2) or 25(2) of the Act
Order under section 21(2)(b) to (j), (l) or (n) of the Act in relation to the land or a building on the land	Department for Environment, Heritage and Aboriginal Affairs
or
Department of Primary Industries and Resources	
Particulars relating to environment protection (items 2(3), 3, 4 and 5 under that heading)	Department for Environment, Heritage and Aboriginal Affairs	

Schedule 3—Contracts for sale of land or businesses—fees

1—Fees payable to councils			
	For particulars and documentary material to be provided by a council—		
		(a)	for particulars—		
		(i)	in relation to one strata unit	$20.00	
		(ii)	in relation to two strata units on the same strata plan	$40.00	
		(iii)	in relation to three or more strata units on the same strata plan	$60.00	
		(iv)	for each certificate of title to land under the Real Property Act 1886 in respect of which particulars are to be provided		
		(A)	if the applicant requests that the particulars be provided within 24 hours after receipt of the request	$30.00	
		(B)	in any other case	$20.00	
		(b)	for documentary material—the actual cost incurred by the council in producing a copy of the document.		
2—Fees payable to statutory authorities			
	For particulars and documentary material to be provided by a statutory authority (other than where particulars are to provided in a Section 7 Statement)—		
		(a)	for particulars—		
		(i)	in relation to one strata unit	$15.00	
		(ii)	in relation to two strata units on the same strata plan	$28.00	
		(iii)	in relation to three or more strata units on the same strata plan	$43.00	
		(iv)	in any other case—in relation to each certificate of title to land under the Real Property Act 1886 in respect of which particulars are to be provided	$15.00	
		(b)	for documentary material—the actual cost incurred by the statutory authority in producing a copy of the document.		
3—Interpretation			
	In this Schedule—		
	Section 7 Statement, in relation to a certificate of title to land, means the statement produced by the Department for Environment, Heritage and Aboriginal Affairs that contains a search copy of the certificate of title and the information relating to the land provided by the Department for the purposes of a vendor's statement under the Act;		
	strata unit includes a community lot and strata plan includes a community plan.		
Note—
The fees payable to a strata corporation for the provision of information are fixed by regulations under the Strata Titles Act 1988.			

Schedule 4—Dual representation—forms

Schedule 5—Transitional provisions
1—Section 90 statements prepared before commencement of Act
A statement under section 90 of the Land Agents, Brokers and Valuers Act 1973 prepared not more than two months before the commencement of the Land and Business (Sale and Conveyancing) Act 1994 will be taken to comply with these regulations if the statement complies with the Land Agents, Brokers and Valuers Act 1973 and the Land Agents, Brokers and Valuers Regulations 1986 as in force immediately before that commencement and is accurate as at the date of service on the purchaser.
2—Section 91 statements prepared before commencement of Act
A statement under section 91 of the Land Agents, Brokers and Valuers Act 1973 prepared not more than one month before the commencement of the Land and Business (Sale and Conveyancing) Act 1994 will be taken to comply with these regulations if the statement complies with the Land Agents, Brokers and Valuers Act 1973 and the Land Agents, Brokers and Valuers Regulations 1986 as in force immediately before that commencement and is accurate as at the date of service on the purchaser.

Legislative history
Notes
	•	Variations of this version that are uncommenced are not incorporated into the text.
	•	Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
	•	Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.
	•	For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.
Principal regulations and variations
New entries appear in bold.
Year	No	Reference	Commencement	
1995	35	Gazette 27.4.1995 p1577	1.6.1995: r 2	
1995	43	Gazette 4.5.1995 p1721	4.5.1995: r 2	
1995	162	Gazette 27.7.1995 p312	27.7.1995: r 2	
1995	216	Gazette 23.11.1995 p1461	1.12.1995: r 2	
1996	225	Gazette 10.10.1996 p1346	4.11.1996: r 2	
1997	21	Gazette 27.2.1997 p1070	1.3.1997: r 2	
1998	155	Gazette 2.7.1998 p26	2.11.1998: r 2	
1999	143	Gazette 1.7.1999 p55	1.7.1999: r 2	
1999	200	Gazette 30.9.1999 p1395	30.9.1999: r 2	
2001	150	Gazette 28.6.2001 p2480	15.7.2001: r 2	
2002	156	Gazette 8.8.2002 p3035	8.10.2002: r 2	
2003	210	Gazette 23.10.2003 p3883	1.12.2003: r 2	
2007	51	Gazette 26.4.2007 p1410	1.6.2007: r 2	
Provisions varied
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision	How varied	Commencement	
r 5	varied by 225/1996 r 3	4.11.1996	
r 6A	inserted by 162/1995 r 3	27.7.1995	
	varied by 21/1997 r 3	1.3.1997	
	varied by 210/2003 r 4	1.12.2003	
r 7	varied by 155/1998 r 3	2.11.1998	
r 9	varied by 155/1998 r 4	2.11.1998	
r 12			
r 12(1)	varied by 225/1996 r 4	4.11.1996	
	varied by 156/2002 r 3	8.10.2002	
r 15			
r 15(1)	varied by 225/1996 r 5	4.11.1996	
r 16	varied by 225/1996 r 6	4.11.1996	
r 17			
r 17(1)	varied by 150/2001 r 3	15.7.2001	
Sch 1			
Form 1			
Contents list	varied by 43/1995 r 3(a)	4.5.1995	
Pt A	varied by 43/1995 r 3(b)	4.5.1995	
Pt D	heading varied by 43/1995 r 3(c)	4.5.1995	
Sch			
Div 1—Table of Particulars			
Item 4	varied by 225/1996 r 7(a)	4.11.1996	
Item 48	varied by 225/1996 r 7(b)	4.11.1996	
	substituted by 155/1998 r 5(a)	2.11.1998	
Items 49—57	inserted by 155/1998 r 5(a)	2.11.1998	
Item 58	inserted by 200/1999 r 3(a)	30.9.1999	
Div 2			
Particulars relating to a community lot (including a strata lot)	inserted by 225/1996 r 7(c)	4.11.1996	
Particulars of building indemnity insurance	varied by 156/2002 r 4(a)—(c)	8.10.2002	
Particulars relating to a development lot	inserted by 225/1996 r 7(c)	4.11.1996	
Particulars relating to environment protection	varied by 216/1995 r 3(a)	1.12.1995	
	varied by 225/1996 r 7(d)	4.11.1996	
	substituted by 155/1998 r 5(b)	2.11.1998	
Form 2			
Contents list	varied by 43/1995 r 3(d)	4.5.1995	
Pt A	varied by 43/1995 r 3(e)	4.5.1995	
Pt E	 heading varied by 43/1995 r 3(f)	4.5.1995	
Sch 1			
Div 1			
Trading statement for last 3 financial years	varied by 143/1999 r 3 (Sch cl 12)	1.7.1999	
Sch 2			
Div 1—Table of Particulars			
Item 4	varied by 225/1996 r 7(e)	4.11.1996	
Item 48	varied by 225/1996 r 7(f)	4.11.1996	
	substituted by 155/1998 r 5(c)	2.11.1998	
Items 49—57	inserted by 155/1998 r 5(c)	2.11.1998	
Item 58	inserted by 200/1999 r 3(b)	30.9.1999	
Div 2	varied by 216/1995 r 3(b)	1.12.1995	
Particulars of building indemnity insurance	varied by 156/2002 r 4(d)—(f)	8.10.2002	
Particulars relating to a community lot (including a strata lot)	inserted by 225/1996 r 7(g)	4.11.1996	
Particulars relating to environment protection	varied by 216/1995 r 3(b)	1.12.1995	
	varied by 225/1996 r 7(h)	4.11.1996	
	substituted by 155/1998 r 5(d)	2.11.1998	
Sch 2			
Table 1	varied by 155/1998 r 6(a), (b)	2.11.1998	
	varied by 200/1999 r 4	30.9.1999	
Table 2	varied by 216/1995 r 4	1.12.1995	
	varied by 155/1998 r 6(c)—(f)	2.11.1998	
Sch 3			
cl 2	varied by 155/1998 r 7(a), (b)	2.11.1998	
cl 3			
DENR Statement	deleted by 155/1998 r 7(c)	2.11.1998	
Section 7 Statement	inserted by 155/1998 r 7(c)	2.11.1998	
strata unit	inserted by 155/1998 r 7(c)	2.11.1998	
Historical versions
Reprint No 1—4.11.1996		
Reprint No 2—1.3.1997		
Reprint No 3—2.11.1998		
Reprint No 4—1.7.1999		
Reprint No 5—30.9.1999		
Reprint No 6—15.7.2001		
Reprint No 7—8.10.2002		

Appendix—Divisional penalties and expiation fees
At the date of publication of this version divisional penalties and expiation fees are, as provided by section 28A of the Acts Interpretation Act 1915, as follows:

Division	Maximum imprisonment	Maximum fine	Expiation fee	
1	15 years	$60 000	—	
2	10 years	$40 000	—	
3	7 years	$30 000	—	
4	4 years	$15 000	—	
5	2 years	$8 000	—	
6	1 year	$4 000	$300	
7	6 months	$2 000	$200	
8	3 months	$1 000	$150	
9	–	$500	$100	
10	–	$200	$75	
11	–	$100	$50	
12	–	$50	$25	
Note: This appendix is provided for convenience of reference only.