Conveyancing Regulations 2015

Conveyancing Regulations 2015

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 .

C. WARNER

Governor

By Her Excellency's Command,

DR VANESSA GOODWIN

Minister for Justice

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Conveyancing Regulations 2015 .

2.   Commencement

These regulations take effect on 31 August 2015.

3.   Interpretation

In these regulations –

Act means the Conveyancing Act 2004 ;

rules of conduct means the rules of conduct set out in Schedule 1 .

PART 2 - Qualifications and Experience

4.   Qualifications and experience

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

(a) one of the following:

(i) Conveyancing – Law and Practice Course, Macquarie University;

(ii) Associate Degree in Law (Paralegal Studies), Southern Cross University;

(iii) Bachelor of Business (Property), University of South Australia;

(iv) Advanced Diploma of Financial Services (Conveyancing), Advanced Diploma of Conveyancing, or Diploma of Conveyancing, delivered and assessed by a person employed, or engaged, by a registered training organisation 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 Training and Workforce Development Act 2013 ; and

(b) a course, relating to Tasmanian local requirements for conveyancing work, as the Director may from time to time determine; and

(c) 2 years' full-time practical experience, or periods of part time practical experience that total 2 years, in conveyancing work gained in –

(i) a licensed conveyancer's office; or

(ii) a law practice within the meaning of the Legal Profession Act 2007 ; or

(iii) any business or government department or government agency where conveyancing work is regularly undertaken.

(2)  The practical experience specified in subregulation (1)(c)  –

(a) must be gained within the 3 years immediately preceding the day on which the application for a licence under section 6 of the Act is lodged with the Director; and

(b) may be gained wholly or partly in Tasmania or in any other State or a Territory.

PART 3 - Fees and Professional Indemnity Insurance

5.   Fee for application for licence

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

6.   Minimum amount of professional indemnity insurance cover

For the purpose of section 13(1) of the Act, the prescribed minimum amount of professional indemnity insurance cover is $2 000 000.

7.   Evidence of professional indemnity insurance

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

(a) at least once in each 12-month period; and

(b) at any other time as required by the Director.

Penalty:  Fine not exceeding 10 penalty units.

PART 4 - Regulation of Conveyancing

8.   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; or

(c) any business where his or her duties include the provision of mortgage finance.

Penalty:  Fine not exceeding 100 penalty units.

9.   Rules of conduct

(1)  For the purposes of the Act, the rules of conduct are set out in Schedule 1 .

(2)  A conveyancer must comply with the rules of conduct.

Penalty:  Fine not exceeding 100 penalty units.

SCHEDULE 1 - Rules of Conduct

Regulation 9

1.   Practice of conveyancing

(1) In undertaking work as a conveyancer, a conveyancer must at all times serve his or her clients to the best of his or her ability.

(2) A conveyancer must discharge his or her legal and professional obligations to each of his or her clients.

(3) A conveyancer may only undertake work which he or she is competent to perform and able to complete in a timely manner.

(4) A conveyancer must not accept instructions to undertake work for a client if the work is –

(a) beyond the scope of the Act; or

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

(c) illegal.

(5) 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.

2.   Costs

(1) A conveyancer must, on accepting instructions to undertake work for a client, provide full information to the client in writing about the expected costs of the work, including –

(a) an estimate of the total cost; and

(b) the method employed when calculating the actual costs of providing each conveyancing service within the work.

(2) A conveyancer must, as soon as practicable after completion of a matter, give a statement of account to the client stating the actual costs of providing each conveyancing service within the matter.

(3) If a relationship between a conveyancer and a client is terminated, the conveyancer –

(a) must give a statement of account to the client stating the actual costs of providing each conveyancing service within the part of the matter that has been completed; and

(b) may make arrangements to assist the client to pay the costs incurred.

3.   Confidentiality

A conveyancer must not divulge the identity of a client, or information relating to a client, except in a case where –

(a) the normal conduct of the conveyancer's business necessitates that the identity or information be divulged; or

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

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

4.   Acting for more than one party to a matter

(1) If a conveyancer proposes to act for more than one party to a matter, the conveyancer must –

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

(b) after notifying the parties under paragraph (a) and before acting for more than one of them, obtain written consent from each party for the conveyancer to act for more than one of them; and

(c) not proceed to act for more than one party, if the conveyancer would, in acting for more than one party, be obliged to act in a manner contrary to the interests of one or more of them.

(2) If the conveyancer ceases to act for one of the parties, the conveyancer must give written notice to each other party that he or she has ceased to act.

5.   Conflict of interest

(1) A conveyancer must –

(a) keep his or her clients fully informed of any developments relating to their matters; and

(b) avoid any situation where a conflict of interest may arise.

(2) If a conveyancer has an interest in a matter that may reasonably be regarded as conflicting with the interests of his or her client –

(a) the conveyancer must fully disclose to the client that interest; and

(b) unless the client otherwise instructs, the conveyancer must cease to act for the client.

6.   Termination

(1) A conveyancer must not terminate, or seek to terminate, a relationship with a 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 gives reasonable notice to the client and terminates the relationship with the client for just cause; or

(d) termination is required under these rules of conduct.

(2) If a client instructs another conveyancer, or a legal practitioner, to take over the conduct of a matter from the conveyancer who was originally instructed, the conveyancer originally instructed must –

(a) promptly transfer to the other conveyancer, or to the legal practitioner, all relevant documents to which the client is entitled; and

(b) provide to the other conveyancer, or to the legal practitioner, any information which is necessary for the proper conduct of the matter.

(3) Despite subclause (2) , if a client instructs another conveyancer or a legal practitioner –

(a) the conveyancer originally instructed may retain possession of the documents until his or her outstanding costs in respect of the matter are paid, or their payment is satisfactorily secured; and

(b) 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 matter.

(4) If a relationship between a conveyancer and a client is terminated, and no matter is ongoing, the conveyancer must –

(a) provide the client, on request, with any document to which he or she is entitled; and

(b) retain all documents relating to the client for up to 6 years, unless the client provides written instructions that the documents are to be dealt with in some other manner.

(5) Despite subclause (4) , a conveyancer is entitled to retain possession of any document relating to a non-ongoing matter until his or her outstanding costs in respect of the matter are paid, or their payment is satisfactorily secured.

7.   Dealings with other conveyancers and with legal practitioners

In dealing with another conveyancer, or a legal practitioner, 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 in order to provide the highest standard of service for the benefit of his or her 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.

8.   Duty upon transfer of conveyancing business

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

(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 each 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.

9.   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, if at the time of the undertaking, or agreement, he or she is aware that he or she may be unable to carry out that undertaking or agreement.

10.   Duty to maintain professional standards

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

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

(a) must take all reasonable steps to protect the integrity of the conveyancing 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 –

(i) it is necessary to do so in order to discharge his or her duty to a party to the matter in which he or she is acting; or

(ii) the conveyancer has the agreement of all parties to do so.

11.   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; and

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

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

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

12.   Sharing of premises

If a conveyancer –

(a) shares premises with another conveyancer, or another person not otherwise associated with the business of the conveyancer; or

(b) engages in any business other than the business of conveyancing –

the conveyancer must –

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

(d) 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

(e) ensure that the sharing of premises is not likely to lead to a contravention of the Act or these rules of conduct.

13.   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) If a branch office of a conveyancing business is operated, the conveyancer must –

(a) undertake personally, or supervise adequately, the work done and the services provided within the branch office; 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 26 August 2015

These regulations are administered in the Department of Justice.