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Conveyancing is the process of transferring interests in land and property. In most cases it involves the following tasks:
drafting and consideration of the contract of sale;
reserving priority for document registration during the settlement period;
searching the title to the land to ensure that it is in correct order for transfer;
making enquiries of certain statutory authorities;
advising a purchaser on any outstanding charges on the property, restrictions on use, or encumbrances on the title;
advising on obligations when buying a stratum title unit, and whether to hold property as joint tenants or tenants-in-common;
preparing transfer, mortgage, assignment of lease and requisition documents;
liaising with banks to discharge mortgages if selling;
preparing settlement statements, apportioning rates and taxes, and attending settlement;
lodging documents for payment of stamp duty and registration; and
advising when settlement is completed, and notifying statutory authorities of change of ownership.
Conveyancing can also refer to transactions which do not involve the transfer of interests in land. For example, conveyancing can include the transfer of small businesses, including the transfer of goodwill, business names, and stock-in-trade.
The Conveyancing Act 2004 (the Act) and the Conveyancing Regulations 2005 (the Regulations) form the framework for the licensing of conveyancers in Tasmania.
Copies of the Act and Regulations are available from the Tasmanian legislation database http://www.thelaw.tas.gov.au/
The Act and Regulations commenced on 1 September 2005, and the Director Consumer Affairs and Fair Trading is the licensing authority.
Conveyancers must be licensed
A person who is not a legal practitioner must not undertake conveyancing work for fee or reward unless they are licensed under the Act.
It is an offence to carry on business as a conveyancer for a fee or reward without a licence. A maximum penalty of $20 000, and/or up to 2 years imprisonment may apply.
The Act does not provide for companies to be licensed and therefore any individual within a company who will be undertaking conveyancing work will need to hold a licence.
A person is ineligible to hold a licence if -
(a) he or she does not hold the prescribed qualifications and have the prescribed experience; or
(b) he or she is an undischarged bankrupt or a person who has made an arrangement with creditors that has not been carried out; or
(c) his or her licence has been suspended or cancelled under Part 4; or
(d) he or she is disqualified from acting as a legal practitioner under the Legal Profession Act 1993; or
(e) he or she holds a licence under the Property Agents and Land Transactions Act 2005; or
(f) he or she has, within the preceding period of 5 years, been convicted in Tasmania or elsewhere of an indictable offence and sentenced to -
(i) imprisonment for a term or terms in the aggregate of 3 years or more; or
(ii) a period of detention for 3 years or more under a restriction order made under section 75(1)(e) of the Sentencing Act 1997 or an equivalent order made in any jurisdiction outside Tasmania.
In addition, the Director may refuse to grant an application for a licence where he or she is satisfied that -
(a) the applicant is not a fit and proper person to hold a licence having regard to the report under section 7(b); or
(b) the applicant has been convicted of a prescribed offence; or
(c) if the applicant were the holder of a licence -
(i) there would be grounds for disciplinary action against the applicant; or
(ii) there would be grounds for suspension or cancellation of the licence.
Qualifications and Experience
The following requirements must be met in order to qualify for a licence:
(a) one of the following:
(i) Conveyancing Law and Practice Course, Macquarie University;
(ii) Advanced Diploma of Conveyancing, TAFE New South Wales Sydney Institute;
(iii) Associate Degree in Law (Paralegal Studies), Southern Cross University;
(iv) Bachelor of Business (Property), University of South Australia;
(v) Advanced Diploma of Conveyancing, Douglas Mawson Institute of TAFE;
(vi) Advanced Diploma of Financial Services (Conveyancing) FNS60304 delivered or assessed by a person registered by a training authority of a State or Territory to deliver training or conduct assessments and issue qualifications in accordance with the Australian Qualifications Framework within the meaning of the Vocational Education and Training Act 1994; and
(b) 2 years full-time practical experience, or the equivalent practical experience, in conveyancing work gained in a licensed conveyancers office, legal practitioners office or any business or government department where conveyancing work is regularly undertaken, which experience may be gained -
(i) before, during or after obtaining a qualification referred to in paragraph (a); and
(ii) wholly or partly in any other State or a Territory; and
(c) a course relating to Tasmanian local requirements, as the Director may from time to time determine.
Evidence of your qualifications and experience must be submitted with your licence application.
How to Apply
To apply for a conveyancing licence you need to complete the Application for a Conveyancing Licence Form.
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Please complete all relevant sections on the application form, supply the correct fee and provide all information requested, including documentation of your qualifications, evidence of professional indemnity insurance and a bankruptcy report (see below).
The completed form, accompanying documents and licence fee can be lodged at any Service Tasmania shop.
If these requirements and all of the necessary criteria are met, your licence will be granted within twenty (20) working days.
To maintain the currency of your licence, you must reapply every three years.
In order to process your application before your existing licence expires you will be required to reapply at least twenty (20) working days prior to the date of expiry of your licence.
Courtesy reminder letters and application forms will be mailed approximately 6 to 8 weeks prior to the expiry of your licence but you should not rely on these letters.
The Act requires you to advise the Director of any change of address within 14 days of moving. This also ensures that all documentation is sent to the correct address.
Refused Application
The Director may refuse your licence application if you do not meet the eligibility criteria.
If your application for a licence is refused you can appeal to the Magistrates Court (Administrative Appeals Division) for a review of the Director's decision.
Licence Conditions
Section 9 of the Act allows licences to be granted subject to conditions.
If your licence is subject to a condition you can apply to the Magistrates Court to have it changed at any time. However, the Director may refuse your application if you do not meet relevant criteria, current at the time of application.
All licence applications must be accompanied by a copy of your current bankruptcy report.
Copies of your bankruptcy report can be obtained from the following organisations:
Espreon
Phone: 1300 305 205Website: www.espreon.com
Australian Business Research
Phone: 1300 366 402Website: www.abr.com.au
Confirm
Phone: 1800 773 773Website: www.confirm.com.au
Insolvency and Trustee Service (ITSA)Phone: 03 6221 7777
Address: Level 4, 22-26 Elizabeth Street, Hobart, Tasmania.
You cannot operate in Tasmania using your interstate licence without first applying for Mutual Recognition.
Mutual Recognition is a scheme whereby individuals who hold a current registration/licence that authorises them to practice their occupation in one State or Territory of Australia can receive an equivalent registration in another State or Territory, provided the occupation is an equivalent registration occupation.
Mutual Recognition only applies to individuals who hold current registration in an equivalent occupation.
Trust Accounts
If you are the holder of a license under the Act you are required to deposit monies received on behalf of your clients into a trust account in accordance with Part 3 of the Conveyancing Act 2004.
Changes to Details
You must notify the Director in writing within 14 days of any changes to the details specified in your licence.
An Application to Amend Registered Details form is available.
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Licence Certificate
As a licensed conveyancer you will be issued with a licence certificate, which you must produce for inspection upon request by a police officer, the Director, an officer authorised under the Conveyancing Act 2004, or a person with whom you are dealing with as an agent, such as a consumer or client.
Professional Indemnity Insurance
Section 13 of the Act requires all conveyancers to be covered by a policy of professional indemnity insurance (PII) approved by the Director to a prescribed minimum amount.
The Conveyancing Regulations 2005 set the minimum amount of insurance required at $1million and require conveyancers to annually provide evidence that they are covered by an appropriate policy of PII.
The following insurers are approved for the purposes of the Act:
ACE Insurance Pty Ltd
Register on http://www.einsurance.com.au/
or
Call Peter Hille at Rowland House Insurance Brokers on 1800 642 747
Licensed conveyancers must provide an annual return to the Director by 30 September each year in accordance with Part 3 Division 5 of the Conveyancing Act 2004.
This report should contain the following:
the name and location of any trust account in which trust money has been deposited; and
the total amount of all contributions to the trust account; and
a statement of the balance of the trust account; and
a copy of the auditor's report prepared under section 30 (3).
Audits are to be carried out by a person who is a member of any of the following bodies:
The Business Names Act 1962 makes it compulsory to register a business name if business is being conducted under a name other than just the name of the proprietor (individual or body corporate). If you are advertising a name with an address in this State, you will be deemed to be carrying on business under that name and need to register the name.
An Application for Registration of a Business Name form is available from the Consumer Affairs website at www.consumer.tas.gov.au
Click here to view list of approved conveyancers
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