Conveyancing Regulations 2005

Conveyancing Regulations 2005

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Conveyancing Act 2004 .

W. J. E. COX

Governor

By His Excellency's Command,

JUDY JACKSON

Minister for Justice and Industrial Relations

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Conveyancing Regulations 2005 .

2.   Commencement

These regulations take effect on the day proclaimed under section 2 of the Conveyancing Act 2004 .

3.   Interpretation

In these regulations –

Act means the Conveyancing Act 2004 ;

rules of conduct means the rules of conduct prescribed in Part 5 .

4.   Objects of regulations

The main objects of these regulations are –

(a) to ensure that conveyancers comply at all times with the rules of conduct; and

(b) to provide that any contravention of those rules constitutes both an offence and grounds for disciplinary action.

PART 2 - Qualifications and Experience

5.   Qualifications and experience

For the purposes of section 5(1)(a) of the Act, the qualifications and experience required for conveyancing work are –

(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 conveyancer's office, legal practitioner's 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 Tasmania or 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.

PART 3 - Fees and professional indemnity insurance

6.   Fee for application for licence

For the purposes of section 6(2)(b) of the Act, the prescribed fee is 189 fee units.

7.   Minimum amount of professional indemnity insurance cover

For the purposes of section 13(1) of the Act, the minimum amount of professional indemnity insurance cover is $1 000 000.

8.   Evidence of professional indemnity insurance

A conveyancer must, annually and when so required by the Director, provide the Director with evidence that he or she is covered by professional indemnity insurance as required by section 13(1) of the Act.

Penalty:  Fine not exceeding 10 penalty units.

9.   Fee for inspection of register of conveyancers

For the purposes of section 44(3) of the Act, the prescribed fee is 11 fee units.

PART 4 - Regulation of conveyancing

10.   Prohibited businesses for conveyancers

A conveyancer must not carry on, or be employed in –

(a) a real estate agency; or

(b) the business of mortgage-broking –

and must not carry on, or be employed in, any business where his or her duties include the provision of mortgage finance.

Penalty:  Fine not exceeding 100 penalty units.

11.   Duty of conveyancers to comply with rules of conduct

A conveyancer must, in carrying on business as such, comply with the rules of conduct.

Penalty:  Fine not exceeding 100 penalty units.

PART 5 - Rules of Conduct

12.   Practice of conveyancing

(1)  A conveyancer must at all times serve clients to the best of his or her ability.

(2)  In acting for a client, a conveyancer must discharge his or her legal and professional obligations to the client.

(3)  A conveyancer must complete his or her work in a competent and timely manner.

(4)  A conveyancer may only undertake work which he or she is competent to perform and able to complete in a reasonable time.

(5)  A conveyancer must not accept instructions to perform work for a client if –

(a) the work is beyond the scope of the Act; or

(b) the work is not covered by a current policy of professional indemnity insurance; or

(c) the work is illegal.

(6)  A conveyancer must, on accepting instructions from a client to act, provide full information to the client about the expected costs of transactions including –

(a) an estimate of the total cost; and

(b) the method of calculating costs.

(7)  A conveyancer must, as soon as practicable after completion of the matter in which he or she was instructed to act, give a statement of account to the client stating the actual costs of providing each service.

(8)  A conveyancer must keep clients fully informed of developments relating to their matters and avoid situations where a conflict of interest may arise.

(9)  A conveyancer must protect the confidentiality of clients and information relating to clients except in a case where –

(a) communications are required for the normal conduct of the conveyancer's business; or

(b) the conveyancer is instructed by a client to divulge information; or

(c) the conveyancer is permitted or required by law to divulge information.

(10)  A conveyancer must not terminate or seek to terminate the relationship with the client unless –

(a) the conveyancer and the client have agreed to terminate the relationship; or

(b) the conveyancer is discharged by the client; or

(c) the conveyancer terminates the relationship with the client for just cause and on reasonable notice to the client.

(11)  A conveyancer must make arrangements for the transfer of documents if any conveyancing work is not completed, including arrangements requiring –

(a) a client to pay costs incurred for conveyancing work completed; and

(b) the conveyancer to retain documents relating to each client for up to 6 years unless the client provides written instructions that the documents are to be dealt with in some other manner; and

(c) the conveyancer to provide a client, on request, with any documents to which he or she is entitled, unless the conveyancer is entitled to a lien over the documents for costs due to him or her by the client.

(12)  If a conveyancer proposes to act for more than one party to a transaction –

(a) each of the parties is to be advised in writing that, if he or she consents to the conveyancer acting for more than one party, the conveyancer may be prevented from providing to the parties information or advice to which they would otherwise be entitled; and

(b) the conveyancer must before so acting obtain written consent from each party; and

(c) the conveyancer must –

(i) cease to act for all parties if the conveyancer would, on failing to do so, be obliged to act in a manner contrary to the interests of one or more of them; and

(ii) give written notice to each of them that he or she has ceased to act.

(13)  Where a conveyancer has an interest in a matter that may conflict with the interests of his or her client –

(a) the conveyancer must fully disclose to the client any interest that he or she has in any transaction, including any matter which may reasonably be regarded as a conflict of interest on the part of the conveyancer; and

(b) unless the client otherwise instructs, the conveyancer must cease to act for the client if he or she has an interest in the transaction that is adverse to the interests of the client.

13.   Dealings with other conveyancers and with legal practitioners

In dealing with other conveyancers and with legal practitioners, a conveyancer –

(a) must take all reasonable care to maintain the integrity and reputation of the conveyancing profession; and

(b) must make every effort to open and maintain regular and effective communication with other conveyancers and with legal practitioners in order to bring about the highest standard of service for the benefit of clients; and

(c) must not disparage another conveyancer or a legal practitioner; and

(d) must cooperate and comply with reasonable requests made by another conveyancer or a legal practitioner, in a timely and competent manner; and

(e) must not give an undertaking to, or enter into an agreement with, another conveyancer or a legal practitioner that he or she is unable to carry out.

14.   Duty on transfer of conveyancing business

A conveyancer who proposes to transfer his or her business to another conveyancer or a legal practitioner must –

(a) notify each client of the proposed transfer of the business and the intention to transfer the client’s documents as part of the business unless contrary instructions are received from the client; and

(b) advise the client of the balance of trust money held by the conveyancer on his or her behalf and the intention to transfer control of that money as part of the business unless contrary instructions are received from the client.

15.   Instructions for another conveyancer or legal practitioner

(1)  If a client instructs another conveyancer or a legal practitioner to take over the conduct of the client’s business from the conveyancer who was originally instructed –

(a) the conveyancer originally instructed must promptly transfer to the other conveyancer or the legal practitioner all relevant documents to which the client is entitled and provide any information which is necessary for the proper conduct of the client’s business; and

(b) where the client has terminated the relationship, the conveyancer originally instructed may retain possession of the documents until his or her costs are paid, or their payment is satisfactorily secured; and

(c) the other conveyancer or the legal practitioner must use his or her best endeavours to secure payment of the costs of the conveyancer originally instructed on completion of the relevant business.

(2)  A conveyancer must not seek to replace another conveyancer or a legal practitioner who has been engaged to act for a client in a particular matter.

16.   Duty to act with honesty, fairness, courtesy and professionalism

(1)  In dealing with other conveyancers, members of other professions and members of the community, a conveyancer must act with honesty, fairness, courtesy and professionalism.

(2)  A conveyancer must cooperate with and assist, wherever possible, others involved in the conveyancing process such as legal practitioners, finance providers, State Service officers and State Service employees, real estate agents and members of other professions.

(3)  A conveyancer communicating with another person on behalf of a client must act honestly and not engage in conduct designed to mislead, deceive or intimidate the other person.

(4)  A conveyancer must not give undertakings to, or enter into agreements with, a third party that he or she is unable to carry out.

17.   Duty to maintain professional standards

(1)  A conveyancer must conduct his or her business in a professional manner in accordance with legal requirements and acceptable professional standards.

(2)  In conducting his or her business, a conveyancer –

(a) must take all possible steps to protect the integrity of the profession and avoid any activity that may bring him or her or the profession into disrepute; and

(b) must not contact a person for whom a legal practitioner or another conveyancer is acting unless it is necessary to do so in order to discharge his or her duty to a party to the transaction in which he or she is acting.

18.   Advertising

In advertising his or her business, a conveyancer must ensure that the advertisements –

(a) do not contain information that the conveyancer knows to be false; or

(b) are not misleading or deceptive or likely to mislead or deceive; or

(c) do not make or imply a comparison with another conveyancer; or

(d) are not vulgar, sensational or of a nature that is likely to bring the conveyancer or the conveyancing profession into disrepute.

19.   Sharing of premises

Where a conveyancer shares premises with another conveyancer or a person not otherwise associated with the conveyancer’s business or engages in any business other than the business of conveyancing, the conveyancer must –

(a) maintain all records and accounts relating to his or her clients securely, confidentially and separately; and

(b) ensure that the business of the other person or the other business of the conveyancer is kept separate from the conveyancing business as far as practicable; and

(c) ensure that the sharing of premises is not likely to lead to a contravention of the Act or the rules of conduct; and

(d) avoid any situation where a conflict of interest may arise and disclose any potential conflict of interest to his or her clients.

20.   Attendance at place of business

(1)  A conveyancer must be in charge of his or her place of business and spend substantial time at that place during its normal business hours.

(2)  Where a branch office of a conveyancing business is operated, the conveyancer must –

(a) undertake personally, or supervise adequately, the work done and the conveyancing services provided; and

(b) ensure that all work undertaken and all communications received are given prompt attention; and

(c) ensure that there is displayed in a prominent position in that branch office for inspection by members of the public a notice that –

(i) states the details of another office of the business at which a conveyancer may be contacted; and

(ii) if a conveyancer is not in attendance, states when a conveyancer will next be in attendance.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 31 August 2005

These regulations are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the regulation)

(a) fees for applications for a licence to practise as a conveyancer and for inspection of the register of conveyancers; and

(b) the minimum amount of professional indemnity insurance cover required for conveyancers; and

(c) rules of conduct for conveyancers to maintain professional standards and, in particular, as to sharing of premises and attendance at places of business.