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REIQ Journal : June 2008
18 INDUSTRY PRACTICE Annette Greenhow, Solicitor to the REIQ (3E) A PAMDA licensee or employee prepares or completes a property contract or other document – (a) By inserting information in a blank space, or crossing or leaving out an alternative included, in the property contract or other document; or (b) By inserting a term into, or altering a term of, the property contract or other document if – (i) the insertion or alteration – (A) Is authorised by a party to the proposed property contract or other document as an insertion or alteration; or (B) Is given in writing to the licensee or employee by a party to the proposed property contract or other document as an insertion or alteration; or (C) Was previously prepared by an Australian legal practitioner, whether or not in connection with the property contract or other document; and Note for subparagraph (C) The provision allows the use of a precedent. (ii) the licensee or employee does not change the insertion or alteration except in relation to – (A) Changing a detail about the transaction that is the subject of the property contract or other document; or (B) Crossing or leaving out an alternative, or changing the grammatical form of words, of the insertion or alteration. Summary The section sets out the scope of the licensee’s role in preparing or completing a property contract and other documents. Take for example the standard REIQ house and residential land contract. Information will need to be inserted in the blank spaces in the reference schedule. Alternatives will need to be crossed out or selected. A special condition may need to be inserted in the standard contract. Take the commonly used special condition of “subject to the sale of the buyer’s property”. The licensee may have a precedent of a standard special condition that has been prepared previously by an Australian legal practitioner. It is permissible for the licensee to insert that special condition in the contract and change the special condition to include appropriate details such as the particular address of the property that needs to be sold and the date by which the condition must be satisfied. The essence of legal practice has been defined to mean: ”…the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person.“ It is with this definition in mind that a licensee must be careful in determining the extent of the licensee’s permitted activities under the LPA 2007, what activities remain the province of a qualified legal practitioner, and the skill care and diligence to know the difference. To help members comply with the amended provisions of the LPA 2007, the REIQ is currently working with legal professionals to prepare a suite of commonly used special terms and conditions for use in contracts. The Institute will update members further when these terms and conditions are available on Realworks. REIQ Journal June 2008