Out with the old

Obsolete and antiquated property laws that originated in Victorian times will be reviewed under a new project by the Victorian Law Reform Commission.

Pamela O’Connor, Associate Professor of Law at Monash University, has been appointed as a part-time commissioner to oversee the first stage of the project. 

The first stage is a review of the Property Law Act 1958, and the operation of easements and covenants to simplify and update the law. The second stage will involve more detailed consideration of the policy issues underpinning  the Torrens system and the Transfer of Land Act 1958.

Chair of the Commission Neil Rees said the overall aim of the review was to modernise an antiquated set of laws by removing obsolete provisions and simplifying remaining provisions.

He said the Property Law Act is a collection of provisions enacted at various times and currently runs to just under 300 provisions on a disparate range of subjects.

Many provisions were carried forward from the consolidation of laws in 1958 and some predate the  introduction of the Torrens System of land registration 150 years ago.

In relation to easements and covenants the review aims to provide greater certainty for people buying land that is subject to an easement or covenant.

Under current law people purchasing property can not be confident that important information—such as a covenant restricting the use of the land or an easement allowing access to or use of the land by another—is listed on the title of the property.

The Commission has begun preliminary consultation and will conduct wide-ranging consultations with relevant government departments and agencies, local government, property peak bodies, town planners and the legal profession.

The Commission will also have regard to similar reviews in other jurisdictions including the Tasmanian Law Reform Commission’s recent Issues Paper on easements and the English Law Commission’s current review of easements, covenants and profits à prendre. The Commission will also draw on a 1992 report of the  Law Reform Commission of Victoria which tackled similar issues.

In conducting the review, the Commission is to have regard to—

  • the aims of the Attorney-General’s Justice Statement 2, in particular to simplify and modernise the law, and reduce the costs associated with the justice system;
  • relevant, contemporaneous reviews or policies in the field in other jurisdictions, both within Australia and internationally;
  • opportunities for harmonisation with laws of other Australian jurisdictions;
  • developments in technology, including the availability of electronic conveyancing;
  • the scope for reducing the administrative and/or compliance burden imposed on business and the not for profit sector, in line with the Government’s Reducing the Regulatory Burden initiative; and
  • social and demographic trends and new approaches to planning and sustainable land use and risk in Victoria.

The Commission expects to release two consultation papers in the first half of 2010, one dealing with the Property Law Act 1958 and a separate paper on easements and covenants. The final report will be delivered in two stages: the Property Law Act 1958 review is due to the Attorney-General by 30 September 2010 and the Final Report regarding easements and covenants is due by 17 December 2010.

For the full terms of reference visit www.lawreform.vic.gov.au

This article was produced by the Commission and appeared in the February 2010 issue of the Law Institute Journal.

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