A Conveyancing Contradiction

OPINION
by Peter Mericka B.A., LL.B
Real Estate Consumer Advocate
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Until the conveyancing “black market” officially ends, the Victorian conveyancing industry will continue to operate in the shadows, if Section 53A of the Estate Agents Act 1980 is to have any significance. According to Section 53A:

• An estate agent can complete a standard form contract or lawyer-prepared contract.
• This does not apply if the estate agent completes the contract for a fee other than the commission he or she is paid for selling a property.
• In such circumstances the estate agent will not be guilty of the criminal offence of “unqualified legal practice”.
• A person who is not an estate agent or a legal practitioner commits a criminal offence by completing a contract.

It is impossible, according to Section 53A, for a conveyancer to complete a contract for a client without committing a criminal offence.

What does the conveyancing industry make of Section 53A?

What do the regulators have to say about the ongoing criminal offences committed by those who ignore Section 53A?

Will the Victorian Government continue to ignore the clear implications of Section 53A? Perhaps Section 53A be repealed so that those implications do not spoil unfettered free-for-all currently enjoyed by Victoria’s unlicensed, unqualified, and unaccountable conveyancers?

How will the legislators deal with Section 53A when preparing the new licensing legislation?

We note that those conveyancers who will soon put their hands out for a Conveyancer’s Licence will probably commit the criminal offence implied in Section 53A, on a regular basis.

We wonder if the “grandfathering” provisions (by which existing conveyancers will automatically receive a Conveyancer’s Licence) to be included in the new legislation, will include an integrity component.

The notion that a conveyancer who gains accreditation through the “grandfathering” provisions can claim to be “professional” and “ethical” may well be another conveyancing contradiction!

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