Yes, but this is best explained by looking at the law behind it. Under the Conveyancing Act 1919 (the Act) and Conveyancing (Sale of Land) Regulations 2017 there are prescribed documents that must be included in all contracts for the sale of residential land in NSW. The Act also provides that every contract for sale of land be deemed to include certain terms, conditions and warranties. Among the many impiled warranties, the Vendor warrants (subject to disclosure in the contract) that the S10.7 Certificate attached to the contract sets out the current status of the land as required to be disclosed in the certificate. Therefore, if the S10.7 Certificate is more than 6 months old there is the possibility that changes may have occurred, such as changes to zoning or other affectations in respect to the land, If these changes are not disclosed, a Vendor may be in breach of the warranty that the S10.7 Certificate specifies the true status of the land as at the contract date. Unlike the consequences arising from a failure to attach a prescribed document to the contract, where a Purchaser can rescind within 14 days of the Contract date, a breach of a warranty does not automatically mean that a Purchaser can rescind the Contract. Rather, the Purchaser must first prove that:
- the Vendor did not disclose the change to the Purchaser;
- the Purchaser, after undertaking their own enquiries was unaware of the change in the S10.7 Certificate; and
- the Purchaser would not have entered into the contract had they been aware of the true circumstances.
Example. A S10.7 Certificate allows for duplexes to be built on the land and a change is made to the certificate to only allow a single dwelling to be built on the land. Under these circumstances if the Purchaser never intended to build duplexes on the land it would be difficult for the Purchaser to rescind the contract based on a breach of warranty. Given the legal repercussions for failing to attach the prescribed documents and up to date certificates and searches in the contract it is imperative that your contract is drawn up correctly by a lawyer or licensed conveyancer.
