Identification of land, improvements and goods in contracts

Authored by Dr Stephen Pallavicini, Lead Property Lawyer, Marie Boustani, Property Lawyer, Woolworths Group Ltd and Sara Hatcher, Consulting Principal, Keypoint Law (NSW); Lisa Gaddie, Partner, Lander & Rogers (Vic); Luckbir Singh, Partner, MacDonnells Law and Simon LaBlack, Director, LaBlack Lawyers (Qld); Gary Thomas, Special Counsel, Anthony Davis, Director, McWilliams Lawyers and Katie Loughridge, Former Australian Government Solicitor Office (WA); Philip Page, Retired Partner, Mellor Olsson, and Constantine Costi, Principal, Costi & Co Commercial Lawyers (SA); Tim Tierney, Principal and Sebastian Thomas-Wilson, Principal, Tierney Law (Tas); Tony Morgan, Partner, Andrew Giles, Partner and Cooper Hood, Associate, HWL Ebsworth; Lyn Bennett, Consultant, Minter Ellison and Leon Loganathan, Managing Partner, Ward Keller (NT); Christine Murray, Managing Partner and Stephanie Lynch, Partner, Meyer Vandenberg Lawyers and Duncan Webber, Partner, Moray & Agnew (ACT). Updated by the LexisNexis Legal Writer team.

The sale of land ultimately involves passing title from the vendor to the purchaser. However, it is important that the parties, and the resulting contract, are clear on what is physically being transferred. This includes accurately identifying the land and its boundaries, any height or depth limitations, and what fixtures, other improvements, goods or chattels are transferring or being removed. Title should also pass without any undisclosed encumbrances or claims by a third party.

This guidance note highlights some key items to consider when preparing contracts of sale. For more detailed guidance on what constitutes land refer to the Topics: Property law fundamentals and Title to land in Practical Guidance Property.

What is the subject matter being sold or purchased?

Contracts of sale should accurately and unambiguously identify the land and other items (if applicable) being sold.

Accurately identifying and describing the land being sold

In all jurisdictions, the usual practice is for a vendor to include both the street address and the title particulars (ie the lot description by number and location and by reference to the relevant survey plan, plus the volume and folio numbers) of the land being sold in the contract for sale.

Title particulars are usually a necessity as they are usually the most accurate way of defining what land is being sold, and are ordinarily included in the transfer instrument to complete the transaction.

The street address stated in the contract for the sale of land can also be the relevant determinant for the parties to the contract for what is being sold.