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Marist Brothers Community Inc v The Shire of Harvey: Formalities Relating to Contracts for the Sale of Land

Honey, R. (1995) Marist Brothers Community Inc v The Shire of Harvey: Formalities Relating to Contracts for the Sale of Land. University of Western Australian Law Review, 25 (1). pp. 180-186.

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Abstract

It is generally accepted that contracts for the sale of land should be in writing. However, neither the statutory source of this requirement, nor the nature of the writing required, has been clear for some time. The confusion arises because Western Australia has two statutory provisions which might, on their face, apply to contracts for the sale of land. Section 4 of the Statute of Frauds 1676 requires that a contract for the sale of land be evidenced by 'some [written] memorandum or note' signed either by the person against whom it is sought to enforce the contract or by that person's agent. The other provision, section 34(l)(a) of the Property Law Act 1969 (WA), provides that:

[N]o Interest in land is capable of being created or disposed of except by writing signed by the person creating or conveying the interest, or by his agent thereunto lawfully authorised in writing....

Given that a specifically enforceable contract for the sale of land immediately creates an equitable interest in the purchaser, it is arguable that section 34(l)(a) of the Property Law Act was intended to apply to (and thus to override the Statute of Frauds in relation to) executory contracts for the sale of land.

Publication Type: Journal Article
Murdoch Affiliation: School of Law
Publisher: University of Western Australia, Law School
Copyright: The Author
Publishers Website: http://www.law.uwa.edu.au/research/uwalr
URI: http://researchrepository.murdoch.edu.au/id/eprint/24125
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