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CPPREP4003 - Access and interpret legislation in real estate (Release 1) Student Learner Guide © Real Estate Academy Australia Version 1.2 – July 2020 P a g e | 1 CPPREP4003 - Access and interpret legislation in real estate (Release 1) STUDENT LEARNER GUIDE RTO 32426 CPPREP4003 - Access and interpret legislation in real estate (Release 1) Student Learner Guide © Real Estate Academy Australia Version 1.2 – July 2020 P a g e | 2 What is Law? Law is a system of rules a society sets to maintain order and protect harm to persons and property. Law is ancient, with some scholars suggesting that formal law dates back to the Code of Hammurabi, written by an ancient Babylonian king around 1760 BC. It is highly probable that the Code of Hammurabi influenced other legal codes in the middle-eastern region. Many of these codes spread into neighbouring regions as trade routes and physical communications expanded. Gradually, the codes developed into legal systems which influenced European law, so the widely used common law system owes some credit to the Code of Hammurabi. Today, most countries have tens or hundreds of thousands of pages of law, including law of contract, law of property, law of trusts, law of tort, criminal law, constitutional law, administrative law, and international law. Each of these sets the rules for a distinct area of human activity. Without laws, there is lawlessness, which historically has led to a general breakdown in society, sometimes to the point of a near-standstill in the economy. Today, we live in a highly developed and civilised society. Consequently, the range of activities, and the complexity of life is such that the conduct of individuals and corporations requires regulation to create and maintain order. CPPREP4003 - Access and interpret legislation in real estate (Release 1) Student Learner Guide © Real Estate Academy Australia Version 1.2 – July 2020 P a g e | 3 The motivation to regulate behaviour comes from political, economic, social, moral and religious sources. The laws and regulations that provide the system that regulate people’s conduct in today’s society have developed over time, and have been based upon historical norms (Common Law) combined with developed legislation (Statute Law). The Legislative Framework (Three Sources of Law) Common Law Common law forms the basis of the legal system in England and other English speaking countries, especially those that were former British colonies. It is that which has evolved over the years as a result of judgements made in the various Common Law Courts of England over the years and for this reason it is also known as “Case Law” In primitive societies, traditional customs tend to govern tribal behaviour, and set the standards for the behavioural norms of that particular group of people, tribe or area, which effectively becomes the ‘common law’ for those people. Over time, as society has developed, the tribal customs have formulated, developed and evolved and been administrated by judges in determining the outcome of legal disputes. Therefore, Common Law was originally based on unwritten common or tribal customs - it was really the common sense of the community, formulated by our forefathers. The basis of Common law, as we now know it, was established in England by King Henry II in the 12th Century. He centralised administration of justice in England by sending judges on circuits throughout the country (circuit judges), which resulted in the gradual development of a common set of principles, applicable nationwide, and administered by the King’s Court. Gradually, 3 main court systems were established: • The Court of the Kings Bench, which heard matters in which the Crown was a party, including criminal prosecutions • The Court of Exchequer, which originally dealt with disputes involving the revenue and exchequer • The Court of Common Pleas, which dealt with litigation between individuals. These different courts established a system of law that could supersede or over-ride the judgments of local courts. Also, in civil matters between individuals, common law was used to compensate those people who had had wrongful acts, known as torts committed against them. Common law is law created and refined by judges, who have the authority and duty to make law by creating precedent. Judges will analyse, make decisions and recommendations about the cases currently before them by referring back to decisions made in previous cases that may have been heard recently, or sometimes decades previously. They will also take into account decisions made in other “Common Law” countries. Judges also compare the circumstances of their current case and relate it to previous cases when writing their opinions and decisions, or giving direction to juries (in civil matters). Their decisions then become the basis or ‘precedent’ for future cases to be heard by other judges in the future. In future cases, when parties disagree on what the law is, an idealised common law court looks to past precedents and decisions made by relevant courts in other jurisdictions. CPPREP4003 - Access and interpret legislation in real estate (Release 1) Student Learner Guide © Real Estate Academy Australia Version 1.2 – July 2020 P a g e | 4 If a similar case has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. The strength of the similarity among the cases strengthens the reasoning based on them. If, however, the court finds that the current case is fundamentally distinct from all previous cases, it will decide as a "matter of first impression". Thereafter, the new decision becomes the precedent, and will bind future court rulings. Decisions made in one court are binding on lower courts, but decisions made in lower courts may be overturned by higher courts (under the appeals system). The development of Commercial Law emerged in the 15th and 16th Centuries, followed by the principles of Tort and Contract Law. Until the 19th Century, Common Law, or Case law was the main source of law. Since the, Statute Law has become the dominant source of law as in a modern society there is a greater need for government intervention in the lives of individuals, and to regulate the conduct of society in general. Common law, because it is based upon historic court judgements, is slow to change, and has proven to be too slow to meet the needs of today’s society. Additionally, as it is judge made law, and based on previous historical events, situations or disputes, and is difficult to translate to other or more general circumstances of modern life and commercial transactions. Statute Law is generally aimed at the future, for active intervention in our lives. Statute law can amend or repeal the common law. However, sometimes the common law leads society for example, in Mabo. When this happens it is called “positive law”. Where there is conflict between common law and statute law, the common law is generally inferior, and statute law will prevail. But on the other hand, often statute law is open to interpretation in different ways, and in such situations, common law principles are applied and new common law develops as courts interpret and apply statutes. Contract Law Contract law encompasses any laws or regulations directed toward enforcing certain promises. We all make contracts almost every day. Whenever we buy a coffee, do the grocery shopping, fill the car up with petrol or purchase a ticket for public transport we are entering into a contract. We are often unaware we are contracting (or at least don't turn our minds to that fact) and in most cases it is unnecessary to do so; most contracts are made and performed instantly (or almost instantly) without any problems arising. However, should something go wrong (eg, one party fails to perform (eg, deliver goods) or goods delivered or services performed are defective in some way), it may become important to assess when and whether a valid contract was entered into, the nature of its terms and obligations and what, if any, remedies may be available in the event of a breach. This is how we buy and sell houses on a legally binding written contract. CPPREP4003 - Access and interpret legislation in real estate (Release 1) Student Learner Guide © Real Estate Academy Australia Version 1.2 – July 2020 P a g e | 5 In Australia contract law is primarily governed by the 'common law', but increasingly statutes are supplementing the common law of contract - most notably, but certainly not exclusively, in the area of consumer protection. Equity Law Equity is primarily concerned with “fairness” or natural justice. To some extent, it evolved out of church law and therefore has taken the high moral ground. It is founded on distinct principles but claiming superiority to the common law because of its superior sanctity inherent in those principles. Originally administered by the Court of Chancery it balanced administration of justice through the established courts. Equity looks at aspects such as ‘good faith’ and ‘conscience’ and has therefore been the key source of law in determining cases based on the rights of individuals, wills and trusts, and other fields. Equity and Common Law are similar in being both judge-made law. An example of how Equity and Common Law might differ is this: Example Bob goes onto John’s land and chops down a tree which overhangs his fence. John takes Bob to court and the case is dealt with under common law. However, if John had heard that Bob was planning to chop down his tree, he could apply to the court to prevent Bob from chopping down the tree. That case would be heard under the principles of equity. Statute Law Statutes are laws that have been enacted by a legislative