Property Law

Top 10 Things to know about a Building Contract

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Building a house is a very exciting time! But can be scary, especially if you have not built a house before. To help you understand what's in store you should be aware of certain terms you and the builder will be bound to when you sign a Building Contract. As a Licensed Conveyancer I have reviewed hundreds of Building Contract documents for my clients, throughout my experience I have found the following list to be the top 10 things I get asked about. You might already have entered into a Building Contract or about to sign on with a builder, either way you should be aware of what's on this list. 

·        When does my Building Contract start?

Your building period starts on the date that the builder starts construction of your new home.  The builder must commence construction (usually) within 20 working days of obtaining the construction certificate.

·        When can I terminate my Building Contract?

It is difficult to get out of a building contract.  Builders have a period of time that they have under the building contract to complete the construction. Remembering this only starts at the time noted above. Further, despite the fixed term under the contract, the builder is entitled to extensions under the building contract, due to industry shut down periods, inclement weather, etc. there is not a lot or rights to terminate a building contract and they are very much limited to if the builder’s licence is cancelled or they suspend works with no just cause, going over the period of time to build (this is practically difficult as you don’t want an unfinished house and contracts don’t usually provide for a penalty) or if its is agreed mutually (this would more than likely be at a cost to you).

·        What happens to my Building Contract if my land is unregistered?

The building contract does not commence until the construction certificate is issued so the contract remains in place, however you need to be aware that the building contract will probably have a condition in it that enables the builder to increase their charges if the registration process takes longer than anticipated.  Always check how long the cost is fixed for, especially when buying unregistered.

·        How long is my Building Contract?

Building periods vary from builder to builder, there is no standard time frame.  This varies from builder to builder and is contained in the terms of the contract.  

·        Is my Building Contract price fixed?

It is very important to ensure that you obtain a fixed price building contract.  The price in the first few pages of your contract is not necessarily a fixed price or only fixed for a limited period of time.  You need to be certain that you are not going to be liable for site costs and many other hidden extras that can be within a building contract.

·        Can the time under my Building Contract be extended?

Yes, the builder can extend the contract due to inclement weather, industry shut down period, variations requested by you, delays in obtaining approvals just to name a few.

·        Can I vary my Building Contract after I have already entered into it?

Yes, you can, however you leave yourself open to being charged extra costs by the builder.  It is best to ensure that everything you are wanting in your building contract be negotiated before entering into it, this includes making sure your plans are correct.

·        Am I required to do anything once I have entered into a Building Contract?

Yes, there is a clause in a standard building contract that requires you to give the builder certain evidence (such as proof of ownership and proof of loan approval) within a time frame specified by the builder.  Under a standard contract, if no time frame is stipulated then the time frame is 15 working days.

·        What happens when my house is finished?

Once your home is complete, the builder will issue you with a certificate of practical completion and an invoice for the final progress drawdown.  It is important to note that most building contracts do not require the builder to provide an occupation certificate so you should ensure that your bank doesn’t require one.

·        What documents form the Building Contract?

The building contract should contain your tender, building specifications, home owners warranty, your house (building) plans, engineering plans, special conditions and the building contract itself. Without all of these documents you should not enter into your building contract.

For further information please don’t hesitate to contact:

Carina Novek
Property Manager
carina@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What happens when a Seller delays settlement?

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In accordance with the 2018 Contract for Sale, if either party is unable or unwilling to complete the contract by the date specified in the contract, then either party shall be entitled to serve the defaulting party with a Notice to Complete.

This Notice will give the defaulting party 14 days to complete the transaction.

Much different to buyers defaulting and being issued a Notice to Complete, if a seller does not complete the transaction by the due date, while the buyer is entitled to issue the seller with a Notice to Complete requiring them to complete the sale within 14 day, they are not entitled to charge the seller default interest.

Even though buyers are not entitled to charge penalty interest to the Vendor for not completing on the completion date, the Vendor is still required to complete the settlement within the 14 days set out in the Notice to Complete.

If the seller has still not completed the sale after the expiry of the Notice to Complete, the buyer is entitled to sue and claim damages.

For further information please don’t hesitate to contact:

Christine Johnsen
Licensed Conveyancer & JP
christine@couttslegal.com.au
02 4607 2105

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

NSW Court of Appeal revisits compulsory acquisition law

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On 6 September 2018, the NSW Court of Appeal (Bathurst CJ, Ward JA and Payne JA) delivered judgment in the case of Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196.

The case concerned the validity of a Proposed Acquisition Notice (PAN) that had been issued by the RMS for the compulsory acquisition of a property owned by Desane at Rozelle. The property was required as part of the proposed Rozelle Interchange associated with the Westconnex road project in Sydney.

The Court of Appeal (in a unanimous judgment) overturned the decision of the primary judge and found that the PAN was valid. Accordingly, the RMS was able to proceed with the acquisition of the property.

In its judgment, the Court of Appeal gave useful guidance as to the circumstances in which a PAN will be legally defective. The Court held that:

  • PANs are not required to strictly comply with the Approved Form under the Land Acquistion (Just Terms Compensation) Act 1991 (the Act) and that “substantial compliance” is sufficient;

  • similarly, PANs do not need to precisely adopt the language of the Act at the time of issue;

  • there is no requirement for a PAN to state the public purpose for the acquisition;

  • there was no improper purpose on the part of the RMS in relation to the acquisition of the property. The Court found that the critical time for assessing purpose is not when the PAN is issued, but at the time of acquisition. The Court overruled the finding of the trial judge that the RMS intended to acquire the property as open space and parkland - as this would only arise once construction of the underground interchange was complete. The Court adopted a liberal approach to the necessary “purpose” and found that that there was no need to identify the specific purpose with precision at the time the PAN was issued.

Lessons from the Case

The case provides important appellant guidance as to the circumstances in which a PAN may be legally invalid.

The overriding theme of the case is that Courts should adopt a measure of flexibility when the validity of a PAN is challenged. That said, Councils and government agencies still need to exercise great care in the preparation of PANs and the surrounding process to avoid subsequent legal challenges to a compulsory acquisition.

For further information please don’t hesitate to contact:

Justin Conomy
Special Counsel
justin@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

I’m a first home buyer purchasing unregistered land. What should I consider?

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The purchase of unregistered land by First Home Buyers is still one of the most common transactions I see come across my desk. Despite this, there is so much First Home Buyers don’t know about buying unregistered land. This is a must read for First Home Buyers looking to buy unregistered land.

First Home Buyers – it’s time to stop the confusion and get informed.

Transfer Duty (formerly called Stamp Duty)

Purchase price $350,000 or below?

Zero to pay – full exemption.

Purchase price between $350,000 and $450,000?

Discounts apply – the discounts work on a sliding scale depending on the purchase price. The closer the purchase price is to $350,000, the less you pay.

There is a calculator tool on the Revenue NSW website which allows you to calculate how much duty would be payable, depending on the purchase price of your block of land.

If the purchase price is over $350,000 then an element of transfer duty will be payable. This amount must be paid on the earlier of 3 months after the Contract date or settlement. Remember – settlement doesn’t occur until the land is registered. As such, in the majority of cases, you will be required to pay the transfer duty within 3 months of the Contract date. The Contract date is the date the Contracts are exchanged/entered into. I often find this is a common misconception among First Home Buyers. If I had a dollar for every time someone told me they thought that “apart from the deposit, nothing is payable until the land is registered”, I’d be hundreds of dollars richer.

Purchase price over $450,000?

Full transfer duty is payable – no discounts apply. Again, this becomes payable on the earlier of 3 months after the Contract date or settlement.

The above information only sets out the thresholds. It is important to note that there is criteria you must meet in order to be eligible.

First Home Owner Grant

In addition to the transfer duty exemptions or concessions above, as a First Home Buyer you may also be entitled to a $10,000 grant. The grant does not apply to the purchase of land but applies to the construction of a new home on the land. In order to be eligible, the total property value (including house and land) must be less than $750,000.

You may be able to apply through your bank when they’re arranging finance for the building contract or you can apply for it yourself when construction of the new home is completed.

Time frames for registration

Whilst you are provided with an anticipated date for registration, this date is approximate only and subject to change.

The Vendor doesn’t have control over registration of the land because there are a number of processes that need to be followed involving third parties. Before the land is registered, council must approve the plan of subdivision, construction works must be completed and the plan of subdivision must be lodged to Land Registry Services.

It is because of this and a number of other external factors like weather, that an exact time frame of when the land will register cannot be given.

Sunset Date

Generally speaking in a Contract for Sale of unregistered land, there is a ‘sunset date’. This is the latest date that the Vendor has to have the land registered by and is usually longer than the anticipated time frame for registration provided by the sales office.

This is important to consider because as a worst-case scenario you could be waiting until the sunset date. It’s only until the sunset date has passed, that you have any options under the Contract terms.

In most cases, if the sunset date has passed, you have the option to get out of the Contract, get your deposit back and apply for a refund of any transfer duty paid.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

*This information is current as at April 2019 and applies to First Home Buyers in NSW

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Noisy neighbours: where to start!

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Noise is a major instigator of disputes between neighbours. Whether it be a loud party with music blasting into the early hours of the morning each and every weekend, consistent yelling throughout the days or inconsiderate mowing of the lawn disrupting the sacred Sunday sleep in, noise disputes arise in an abundance of situations and can be difficult to approach.

Noise is legislated under the Protection of the Environment Operations Act 1997 and is defined to include both vibration and sound. The Act makes provision for “offensive noise” being noise that is harmful to a person outside of the premises emitting noise, or noise that interferes with the response or comfort of a person outside of the premises in an unreasonable manner. In order to determine whether noise falls into this definition, the nature, quality, character and level of noise is to be considered.

Despite some noises being specifically prohibited under Regulations that Police and Local Council govern, neighbours can be uncertain about how to approach noises that don’t easily fall into this category. So what do should you do?

1.     Raise your concerns with your Neighbour in a pleasant manner

Whilst one of the simplest options, it may be overlooked to have a pleasant conversation with your neighbour. Noise issues may be simply resolved and neighbours may then be made aware of the impact of their behaviours.

2.     Mediate

In the event that your neighbours don’t respond in the reasonable manner you hope for and the problem continues to persist, you can engage a mediator (being a neutral third party) to assist in resolving the dispute. This gives the neighbours an opportunity to talk with each other and clarify their position on the dispute, talk and be heard. The mediator then can help the neighbours develop options that may resolve the dispute, that perhaps parties had not yet considered.

3.     Consider a Noise Complaint

If the noise continues and your neighbour is unwilling to compromise or reduce their noise, a complaint can be made to Police or the Local Council.

Whilst this may be a person’s first consideration, it should be considered whether the noise and “offense” arising from the noise validates potentially deteriorating the relationship you have with your neighbour. It is essential to remember that whilst some activities can be noisy or annoying, neighbours will continue to reside near you and some things can be tolerated rather than inflaming a situation which could worsen.

4.     Apply for a Noise Order

As a matter of last recourse, a person is able to make an Application in the Local Court addressing the noise and seeking a binding, enforceable Order that the neighbour stop or control a certain type of noise. This is known as a noise abatement order. Essentially, the neighbour will be prohibited from breaking the Order and could face legal consequences for the breach.

If you require advice on how to approach a neighbourhood dispute, would like further information on mediation avenues, have queries about noise complaints or require representation to respond to a noise complaint, Coutts has the experience to assist you. To receive personalised advice on your particular issue, please contact (02) 4647 7577 to book an initial appointment with our Disputes Resolution Team.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What are Deposit Bonds?

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Deposit Bonds are becoming a common part of the conveyancing process. So it is important for vendors and purchasers alike to understand what Deposit Bonds are.

A Deposit Bond is a substitute for all or part of the usual cash deposit. The deposit is typically paid on exchange of Contracts in the conveyancing process. It almost like a form of insurance where the institution providing the deposit bond is saying the purchaser is good for the money.

The term of the deposit bond can be from 6 months to 48 months. Longer term deposit bonds are usual when purchasing off-the-plan property.

Where can you get a Deposit Bond from?

Deposit Bonds can be obtained through specific companies that only deal in deposit bonds, or through your banking institution.

In order to obtain a deposit bond you will need some documents to support your application. Documents such as the following a typically required:

  • Copy of your loan approval;

  • Evidence of funds to complete the purchase;

  • Signed and dated Contract for Sale (if selling existing property)

What is the cost of a Deposit Bond?

The cost varies between institutions and will vary depending on the value of the deposit bond and how long you need it in place for.

What is the benefit of a deposit bond versus cash deposit?

Greater flexibility at auction. You select your maximum bid amount and the deposit is then valid for up to 10% of that amount. You can then retain the same deposit bond for up to 6 months until you are successful at auction.

First home buyers. With high property prices first home buyers may not have access to 10% cash deposit but can get loan approval for excess of 5%. A deposit bond (possibly with the need for guarantor) is therefore an option to avoid committing to a cash deposit.

Buying off the plan. When buying off the plan, typically the vendor invests the deposit in a low interest earning account which you may only get half of the interest earnt on settlement. However, with a deposit bond you can leave your money where it is and still secure the perfect property.

For more information, please contact:

Kylie Fuentes
Licensed Conveyancer & JP
kylie@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

eConveyancing: the 1 July 2019 mandate

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Conveyancing is the legal process involved in buying or selling property. eConveyancing is the same process but completed electronically meaning the paperwork involved in a manual conveyance is substantially reduced. The transition to eConveyancing aims to transform NSW into the most efficient and secure place to buy and sell property. 

eConveyancing has been a long time coming and from 1 July 2019, mainstream property dealings can no longer be lodged in paper in NSW. This includes transfers, mortgages, discharge of mortgages, caveats, withdrawal of caveats and transmission applications.

Currently in NSW, over 85% of eligible conveyancing transactions are being completed electronically. This percentage is only set to increase as we reach the 1 July mandate.

So, how will this benefit you? So glad you asked.

You get your money faster. Funds are paid and cleared in your account instantly, on the day of settlement. There is no more waiting for cheques to be banked and for funds to then clear. With eConveyancing you have immediate access to funds from settlement.

Reduces costs. Some banks charge $10, even $15 per bank cheque required for settlement. With e-Conveyancing, funds are paid electronically, eliminating the need for bank cheques and additional expenses like bank cheque fees.

Safety first. e-Conveyancing is tightly regulated. Processes are in place to verify the identity of the parties and allow parties to electronically sign documents securely. For all those tech savvy people, the data is encrypted and the receiving computer checks the data to make sure it wasn’t changed in transit.

Less risk and more certainty. I was reading something not to long ago that reported 1 in 5 people surveyed experience delays to settlement. Delays to settlement can mean additional expenses and make for a stressful situation. With eConveyancing the risk of errors and delays is significantly reduced, giving you added certainty of a successful on-time settlement. This is achieved through electronic signing as well as better checks and balances through electronic channels. For example, there are no cheques drawn in eConveyancing, the funds are electronic. This eliminates the chances of cheques being drawn incorrectly resulting in a delay or even a cancellation to settlement.

Less paperwork. Sending documents in the post to be signed increases the risk of delays to settlement, particularly when documents are lost. With electronic signing, there are far less, if any, documents being posted.

Saves time. In order for settlement to occur, the Transfer must be signed. Electronic signing means you can avoid the hassle of printing, scanning and posting documents. You don’t need to make time to drop into the office to sign documents either. The Transfer is signed by your Solicitor or Conveyancer on your behalf, using their digital certificate.

Peace of mind. In the manual world documents required to transfer ownership to you are typically not lodged for days or sometimes weeks after settlement. With e-Conveyancing it is instant, giving you peace of mind. The change of ownership occurs on the day of settlement, with electronic lodgement to Land Registry Services. This also means Government authorities like Council and Water are advised of the change of ownership much sooner.

Moving forward, in order to complete your property transaction it is important that you ensure your Solicitor or Conveyancer is registered for eConveyancing.

At Coutts not only are we registered for eConveyancing as a firm, but each member of our property team has undergone extensive training and are certified with PEXA (Property Exchange Australia).

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Mediation – Know the basics

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Mediation is an alternative dispute resolution process which aims to resolve disputes in a cost effective and efficient manner. The mediation process allows those involved in a dispute to meet with an independent third party, known as a mediator and genuinely attempt to reach a resolution prior to court proceedings.

The mediator plays a crucial role in mediation, acting as a neutral person responsible for ensuring that parties have an opportunity to communicate their goals, issues and desires to reach a resolution across a wide range of disputes. The additional benefit is that all discussions within mediation are kept confidential.

Mediation has cemented itself as a successful step in resolving disputes across various areas of law including but not limited to family law matters such as property settlement and neighbourhood disputes.

Further, parties are able to participate in mediation in public formats, such as community justice centres or privately through mediation centres. Therefore, the timeline for when parties can meet to discuss their dispute may vary as per the avenue they select.

What are the benefits?

Mediation is known for the many benefits it offers to parties of a dispute. Such benefits include:

1.     Cost effectiveness: Mediation is more cost effective than Court proceedings;

2.     Informality: The informal nature of mediation allows people to feel more comfortable negotiating and discussing the issue at hand;

3.     Preservation of Relationships: If both parties are willing, mediation may also preserve the relationship of the parties in comparison to Court proceedings given the cooperative nature of mediation being less adversarial than Court;

4.     Time efficiency: The Court process is often time heavy and may take several weeks, month or even years to achieve a Court Order. As such, mediation gives the opportunity for a matter to be settled in a time effective manner;

5.     Varying Agreements: Often when a matter is brought before a court, a Court is limited in their ability to customise agreements and Orders. Mediation allows for both parties to customise and modify their agreement to best suit the circumstances of the parties.

What happens if it doesn’t work?

Often once a resolution is agreed upon by the parties, it can then be formalised in writing and upheld as an agreement, however if a resolution is not achieved, parties can commence Court proceedings, depending on the nature of the matter.  

If you are experiencing a dispute that you need assistance in resolving, please contact Coutts on (02) 4647 7577 to book an initial appointment so we may assess your legal options for dispute resolution.  

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

New laws give added protection for purchasers in NSW when purchasing off-the-plan

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At the end of last year, new laws came in to give purchasers in New South Wales added protection when purchasing off-the-plan properties.

 

A contract for a property being purchased off-the-plan is a contract for the sale of a residential property that has not been completed at the time the contract is entered into.

 

In an off-the-plan contract, there is a sunset clause. The sunset clause is a provision that provides for the contract to be cancelled if the property is not created by the sunset date. The sunset date will be noted in the contract and is the latest date by which the property must be created.

 

Mr Dominello, the Minister for Finance, Services and Property said it best in a recent Media Release when he said “While it works well in most cases, we’ve all heard the horror stories when things go wrong”.

 

In summary, the major amendments to the Conveyancing Act include:

  • Founding minimum disclosure standards

    Prior to entering into a contract, purchasers must be provided with a disclosure statement, which includes a copy of the proposed plan, proposed by-laws (list of rules) and schedule of finishes (list of the inclusions). Penalties will apply to the vendor if a disclosure statement is not provided.

  • Keeping developers accountable for delivering what they promised

    Purchasers must be given a copy of the final plan and a notice of any changes (if applicable), at least 21 days before they can be required to settle. Additionally, purchasers can cancel the contract or claim compensation if they are adversely affected by changes made, after which time they become entitled to a refund of the deposit paid.

  • Extending the cooling off period

    The cooling off period under a contract for the purchase of an off-the-plan property is extended from 5 to 10 business days after the contract is entered into.

  • Clarifying the powers of the Supreme Court

    The Supreme Court can award damages where the contract is cancelled by the vendor under a sunset clause. The Supreme Court can also make an order allowing the vendor to cancel the contract under a sunset clause, but only if the vendor proves to the court that the order is just and equitable in all the circumstances.

 

The changes are of significant importance when you consider that 12% of all residential property sales in NSW are off-the-plan sales.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

De facto relationships decoded

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The aftermath of a relationship breakdown is always difficult, when couples are required to divide their property and deal with the emotions mourning a relationship.  Most people are aware that married couples have rights under law upon the breakdown of their marriage, however it is also important to note that de facto relationships are also governed by Australian legislation and can also apply for property settlement to determine their financial relationship on a final basis.

 

What is a de facto relationship?

De Facto relationships are defined under section 4AA of the Family Law Act 1975 (Cth). A relationship is deemed a de facto relationship if two persons (not married or related by family) live together on a “genuine domestic basis”. Whilst this definition is quite broad, it allows a Court to determine whether a couple relationship exists with reference to circumstances such as but not limited to the duration of the relationship, financial dependence or lack thereof, whether there is a sexual relationship, if the couple live together and their mutual commitment to a shared life.

Further, this concept is inclusive of same-sex couples. 

How do I know if our relationship is eligible for a property settlement?

A de facto relationship is eligible for a property settlement in the following instances:

1.     Where the relationship period was at least two (2) years;

2.     Where there is a child or children of the relationship;

3.     If a party made substantial contributions (financial or non-financial) throughout the relationship and failure to make orders dividing property would be unjust for a party; or

4.     If the relationship was a registered relationship in accordance with state or territory requirements.

Do we need to formally divide our property?

There is no legal obligation for de facto or married couples to commence formal property settlement, however undertaking this settlement will ensure finality of the financial relationship between two parties and can assist in resolving property issues whilst a couple are still amicable. This finally determines ownership of property including motor vehicles, household contents, real estate, superannuation and shares. A written binding financial agreement or a legally-biding Consent Orders will document the way property is to be split between the parties.

Additionally, a time limit exists to make an application for financial orders, being two (2) years from the date of separation. If a person wishes to obtain orders outside this period, permission is then required to be sought from the Court to make orders.

Coutts are able to assist in preparing the necessary documents to formalise a property settlement for de facto relationships. Contact Coutts on (02) 4647 7577 to book in an initial appointment to received tailored advice to your present circumstances.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What does a Notice to Complete mean?

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You have been told you cannot settle on your Contract on the due settlement/completion date and you are going to be issued with a Notice to Complete. So, what does this mean for you?

Contracts in NSW will generally have an additional condition in the Contract stating if settlement/completion does not occur on the correct date then a Notice to Complete can be issued.

When you enter into a Contract to sell or purchase you will be provided with a settlement date also referred to as a completion date. This date is when you must settle/complete the Contract by.

A Notice to Complete can be issued on behalf of the Vendor or the Purchaser.

If, by the settlement/completion date, for some reason a party cannot settle/complete then the other party may issue a Notice to Complete.

There may be many reasons settlement cannot take place, such as the bank may not be ready, the funds for purchasing may not be available, or the property is not completely vacated. The Notice to Complete will provide an additional 14 days for settlement/completion to take place within. This is an assurance for the party ready to settle that an end date is in place and pressure is on the party that is not ready.

As a vendor who has issued a Notice to Complete on a Purchaser, it is at the end of those additional 14 days that you have the right to either extend the Notice to Complete period or terminate the Contract. Upon termination of the Contract you keep any deposit paid by the Purchaser and possibly sue for any financial loss/damages incurred due to the default by the Purchaser. You will then be entitled to place the property back on the market.

As a Purchaser who has issued a Notice to Complete on a Vendor, it is at the end of those 14 days that you have the right to terminate the Contract, get a refund of the deposit paid, possibly sue for any financial loss/damages you may have incurred and walk away from the matter.

For further information please don’t hesitate to contact:

Meagan Groom
Licensed Conveyancer & JP
meagan@couttslegal.com.au
02 4607 2102

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What happens if I can’t purchase a property that I’ve put down a holding deposit on?

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If Contracts have exchanged with a cooling off period, you have the option to get out of the Contract prior to the expiration of that cooling off period, for any reason.

 

In the instance you decide not to proceed with the purchase, you will forfeit the 0.25% deposit (the holding deposit which equates to a quarter of a per cent of the purchase price) to the Vendor. This is compensation to the Vendor for having the property off the market for you.

 

Working example. You entered a Contract to purchase a property for $800,000. You pay a 0.25% deposit of $2,000 to the Agent. Contracts were exchange on 1 November 2018 with a 5 day cooling off period. The cooling off period expires at 5pm on 8 November 2018. On 7 November 2018 you are advised that you will not be able to obtain the finance required to proceed with the purchase and instruct your Conveyancer to rescind the Contract. The Contract comes to an end and you forfeit your holding deposit to the Vendor.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What is a Title Search and What Can it Tell Me?

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Title searches are a requirement for many kinds of matters. However, In New South Wales, it is particularly important to attach a Title Search to a Contract of Sale as it is a requirement when selling your property. Information in this document is important for would be purchasers to have access to so that they can make informed decisions before they exchange contracts. But what is a Title Search?

 

A Title Search is quite simply a current copy of the Certificate of Title for any given property. The Certificate of Title is the official legal record for the ownership of the property and whilst there is quite often a physical paper title, with the move towards e-Conveyancing, the majority of titles are becoming electronic. In New South Wales title information is controlled by Land Registry Services. Completing a Title Search can provide a lot of information regarding a property, including:

 

Owners of the Property

A Title Search will always show you who the current owners of the property are. This can be an individual, multiple individuals or even a company. When multiple people own the property the Title Search will also provide information on how they own the property such as, as joint tenants or tenants in common. If they own the property as tenants in common, the Title Search will also so you how much of the property each individual owns for example 50/50 or 30/70. It is important to check the Title Search when purchasing a property so that you know the people selling it are entitled to do so.

 

Mortgages over the Property

The Title Search will show you whether or not there is a mortgage associated with the property or not. If there is a mortgage on the property, you will be able to find out from the Title Search who the mortgage is with. This is important because when you sell or purchase a property, it will need to be discharged. It is quite often the case that the mortgagee will hold the original Certificate of Title until the mortgage is paid in full.

 

Easements

Having an easement on a title means that another party or parties has the right to cross or otherwise use a portion of the land. For example, it is very common for water authorities to have service locations on properties that they need to be able to access in order to maintain their systems. It is important for property owners and purchasers to be aware of easements as there is often restrictions and a responsibility to respect them. Building illegally over an easement can have serious consequences.

 

Covenants

A covenant is a form of agreement that creates an obligation on the owner of the property. A covenant can be positive (which requires the property owner to do something) or negative (which restricts a property owner from doing a certain thing). Forms of covenants include but are not limited to what kind of fencing needs to surround the property (including colours), to maintain drainage systems or to not leave caravans or tents at the front of the property. It is common for new estates to have covenants to ensure a certain level of aesthetic appeal. It is important to know what covenants apply to a property as you will be required to adhere to them.

 

Caveats

A caveat is a sign that there is someone else who has an interest in that property other than the current owners or mortgagee. In New South Wales, to put a caveat on a property, the caveator must lodge an application with Land registry Services. It essentially serves as a warning to potential purchasers that there may be some unresolved issues in relation to the property or monies owed to the caveator. For example, if there are family law proceedings in relation to the property that have not finalised the owner of the property will not be able to sell it.

 

Leases

This is quite common if you are buying a commercial property with a leasee in the building. This is because any retail/commercial lease of more than three years is required to be registered on the Certificate of Title to protect the tenant’s interests. If you buy a property with a registered lease on it, you will be required to recognise the lease and become the new landlord.

For further information please don’t hesitate to contact:

Christine Johnsen
Conveyancing Assistant
christine@couttslegal.com.au
02 4607 2105

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What is Mine Subsidence?

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What is Mine Subsidence

This article explains in plain English what mine subsidence is and what are the issues when buying a property in a mine subsidence area.

What are mine subsidence districts?

Mine Subsidence Districts are areas that can potentially be affected by ground movement as a result of underground mining, particularly coal mining. Structures within these districts must adhere to building guidelines so they can withstand ground movement.

These controls are overseen and implemented by the Mine Subsidence Board. When buying a property, the purchaser is notified that they are buying in a Mine Subsidence District at the time of purchase.

 

Is mine subsidence high risk?

In general, mine subsidence is not high risk but there are always some risks when building in a mine subsidence area.

The risk increases if the property is built near, or on top of an old mine. Risks such as landslides increase within these areas. As long as your property is not in one of these areas then it is fine. Anywhere not near or on a landfill are treated as normal property.

To find out whether your property is at risk, contact a valuer. Local valuers know the area where you plan to purchase a property. They are also able to contact council about mine subsidence areas.

In general, if the valuer is unsure whether the area is a high or low risk, the banks automatically assume it is a high risk area.

 

Can I cover my house for mine subsidence damage?

Any surface improvements that the Mine Subsidence Board authorises are protected by the Mine Subsidence Act of 1961.

This means, that any damage to authorised improvements as a result of mine subsidence is covered by the Board, which is funded by a levy on the New South Wales mining industry.

If a building was constructed before the Mining Subsidence District was declared, or the building is outside of the district, then you are automatically covered for mine subsidence damage.

It can be difficult to get cover from insurers for certain properties in a mine subsidence district.

 

What is an MSB certificate?

A Mine Subsidence Board (MSB) certificate declares that you have met certain Board requirements.

Many banks will not lend money to purchase a home in a Mine Subsidence District unless a certificate has been obtained.

There are two main certificates available from the Mine Subsidence Board

  • Section 15B Certificate: A Section 15B Certificate relates to whether the Board requirements for improvements and subdivisions has been met. If these improvements meet Board requirements, then they are eligible for compensation if mine subsidence damage occurs.

  • Section 15C Certificate: A Section 15C Certificate identifies whether or not a claim has been previously paid, or is awaiting assessment of existing mine subsidence damage to a property.

What areas are affected by mine subsidence?

Any areas that are mining towns or have older mines within the area can be affected by mine subsidence. Areas within NSW include (but not an exclusive list, please see further legal advice if you want to find out where you are buying is affected):

  • Appin

  • Bargo

  • Camden (parts of Camden Local Government Area)

  • East Maitland

  • Hue Hue

  • Killingworth / Wallsend

  • Lake Macquarie & extension

  • Lithgow

  • Mitchells flat

  • Muswellbrook

  • Newcastle

  • Patrick Plains

  • South Campbelltown

  • Swansea North Entrance & Extension

  • West Lake

  • Wilton

  • Mandalong

  • Wyong

  • Picton

  • Tomalpin

  • Some parts of Newcastle City Central

For further information please don’t hesitate to contact:

Adriana Care
Managing Partner
adriana@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Which Side Of The Fence Does Liability Stand?

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Residential fencing disputes can be difficult to approach. Home owners have conflicting interests in maintaining a friendly relationship with their neighbours, whilst trying to protect their lifestyle and their homes. Therefore, when fences are required to be repaired or rebuilt, home owners can face challenges in finding a resolution that satisfies both themselves and their neighbours, particularly in relation to costs and materials to be used.

In New South Wales, the Dividing Fences Act 1991 (NSW) regulates how costs of dividing fences are to be apportioned, confirms how to determine what a “sufficient dividing fence” might be for adjoining lands or common boundaries and details the process and implementation of fencing work. The use of the term “sufficient” allows for consideration of particular circumstances, including but not limited to, the present fencing, the use or intended use of each parcel of land, other fences used within the area, local government fencing regulations, concerns of privacy.

The general principle applying to costs under legislation is that if a sufficient fence does not exist, adjoining owners are liable to contribute to the costs associated with carrying work for a sufficient dividing fence. This principle, however, will not apply in instances of negligent or deliberate acts which require restoration work to fences.

Whilst legislation empowers the Local Court or the Civil and Administrative Tribunal to make final determinations of “sufficient dividing fences”, home owners should be aware of the alternative cost-effective and efficient avenues they could pursue to resolve disputes, instead of seeking judicial assistance, which could further damage the relationship a home owner has with their neighbours.

When facing fencing disputes, the first step should always be consulting your neighbour and trying to reach a reasonable agreement together. Although disputes can be challenging, it is important to recognise that an inconsiderate approach to a dispute may have an irreparable effect upon a relationship with adjoining neighbours and could result in living in a less than ideal environment.

In the event that a conversation is ineffective in reaching a resolution, neighbours may attempt private or community-based mediation to deal with the issue in a cost-effective manner. Alternatively, a fencing notice can also be issued detailing proposed work and enclosing quotes obtained. Further, if the notice is futile, then the Local Court or New South Wales Civil and Administrative Tribunal could be considered to obtain an order for required fencing work. 

Coutts are able to assist in all areas of fencing disputes. If you wish to discuss your fencing concerns, need assistance determining what constitutes a sufficient dividing fence, or would like to assess your next steps please call (02) 4647 7577 to book an appointment with our disputes team.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

The A to Z of Property Law

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Selling or purchasing a property can be an extremely stressful process for both the vendor and purchaser. On top of that, the language used by industry professionals without any further explanation can at times make the process more convoluted and confusing.

Coutts understands this, and also understands that at times you may not want, or have the time to, request further clarification of the words being thrown around by industry professionals. To assist in these situations, we have prepared ‘the A to Z of Property Law’ which provides a short description of words most commonly used in the conveyancing transaction.

A is for…

 

Adverse possession - the exclusive, continual use of someone else’s property without their permission which after a period set down by law, will legally become yours.

 

Agent – conveyancers and property lawyers will commonly use the word ‘agent’ to describe the real estate agent involved in the conveyancing process. This is the real estate agent appointed by property owners to market and negotiate a sale on the vendor’s behalf.

 

B is for…

 

Building Restrictions – these are limits imposed by developers in off-the-plan contracts or vacant land contracts, which enforce certain aesthetic and functional restrictions on the construction of residences. These restrictions can range from the colour of the building, the type of fencing permitted, the materials permitted and the size of the driveway.

 

Broker – an organisation, or individual, who is hired by others to arrange mortgage contracts between lenders and borrowers. Brokers can financially advise purchasers on potential incoming mortgagees and the loan agreements. Their role is separate to the role of a conveyancer, with a broker being the individual responsible for assisting in obtaining final loan approval.

 

C is for…

 

Caveat - A document which can be lodged on the title of a property, with the person who lodged the caveat claiming an interest in the land. Caveats commonly prevent the selling of a property, unless the person who lodged the caveat (the “caveator”) agrees to remove the caveat – this usually occurs when the caveator is paid the sum of money being claimed in the caveat.

 

Chattels - tangible goods in a property which are capable of being removed. Chattels are not automatically included with properties when they are sold, and as such, vendors or purchasers are required to specifically list them as an “inclusion” (for example, pot plants or furniture).

 

Cooling off period – when buying residential property in NSW, there is a five business-day cooling off period after the exchange of contracts. The cooling off period starts as soon as contracts are exchanged and finishes at 5:00pm on the fifth business day after exchange. The cooling off period allows purchasers to withdraw from a contract if they do not receive finance or are not happy with the results of pest and building reports. Only purchasers are entitled to withdraw from the contract in the cooling off period and if they do so, they forfeit 0.25% of the purchase price to the vendor.

 

D is for…

 

Deed - a legal document which formalises an agreement between two or more parties and can at times relate to a property. A deed can be entered into at the same time as a Contract of Sale. For properties in new developments (such as Bingara George or Harrington Grove), a Deed of Covenant is usually entered into between the purchaser’s and the developer, which creates a legal promise to the developer (by the purchaser) that they will meet the building restrictions that apply to the land.

 

Development approval – written approval from the relevant council that grants council consent to commence the development of the property. Development approval is required for certain sized decks, renovations, construction of residences and knock-down and rebuilds.

 

Discharge of mortgage – this is the document provided by the bank once the mortgage listed on the title is completely paid back. Once the discharge of mortgage is registered on title, the mortgage is removed from the title and the property will be owned “unencumbered”. 

 

E is for…

 

Easement – these are legal rights that can be listed on the title and plans of properties, which give one person the legal right to the easement (the “benefit” of the easement), with the other having to abide by the easement (the “burden” of the easement). Easements are lodged on title and are commonly lodged on properties where the legal ownership of land would affect the access to another’s e.g. if you owned an alleyway attached to your house and your neighbour could only access their property through the alleyway, an easement may be lodged on the property for “access”. Other common easements are easements for drainage or easement for sewer.

 

Exchange – this is the date that the contract is dated and is when a legally binding relationship is formed. In order for exchange to occur, both parties have to agree on the contract terms and sign a copy of the contract. 

 

F is for…

 

Fixtures - tangible goods in a property which are permanently attached to the property and cannot be removed. These will automatically be included in a sale, for example an oven, rangehood, or air conditioner.

 

G is for…

 

Guarantor – a nominated person who is legally responsible for paying back the entire loan if the borrower cannot (or will not) make the repayments. The guarantor guarantees the payment of the loan and is often required when lenders are not willing to give a loan to a person on their own. This is most commonly used for first home buyers and for company borrowers.  

 

H is for…

 

Home Owners Warranty – home owners warranty insurance (now known as home building compensation cover) is compulsory insurance that has been regulated in order to protect homeowners from incompetent builders. Home building compensation is required for any building contract that is $20,000.00 or more. Future owners of property are covered for six years in the case of major defects, and two years in the case of other losses. This insurance can only be claimed if the building is unable to complete the works because they are insolvent, have died or disappeared, or had their licence suspended.

 

I is for…

 

Indemnity – contracts for sale or loan documents may contain ‘indemnities’ from the purchaser or the borrower to the other party to the contract. An indemnity is a legal word that creates a contractual promise to compensate the other for any loss suffered or damage incurred.

 

Insurance – lenders will often require evidence of insurance taken out over a property before they will allow the settlement to occur. In NSW, insurance is required to be effective from the settlement date.

 

J is for…

 

Joint tenants - when buying property with two or more people, you can nominate whether you would like to purchase the property as joint tenants, or, as tenants in common. Joint tenant ownership means that the property is owned jointly with the other purchaser, with both owning 100% of the property together (and not 50% each). In the event that one owner passes away, the other owners will automatically obtain the deceased share of the property, regardless of what is in the deceased will.

 

K is for…

 

Keys – keys to the property will be available to the purchaser’s once settlement has occurred. As a vendor, you should ensure that the keys are delivered to the marketing agent’s office prior to settlement. As a purchaser, keys can be collected from the agent’s office once settlement has occurred.

 

L is for…

 

Land tax – this is an extra tax that is levied by the government and applies to properties owned that are not a primary place of residence. Land tax is charged if the combined value of land owned (not including any buildings on the land) is over the threshold of $629,000.00 (this is the NSW threshold for 2018). You do not have to pay land tax on your principle place of residence (see P).

 

Lessee – this is the tenant of a property, who is leasing it from a lessor.

 

Lessor – this is the owner of a property who leases it to a tenant. This is also known as a landlord.

 

Licence agreement – this is a legal agreement that can be arranged between a purchaser and a vendor which allows the purchaser to move into the property before settlement. Under a licence agreement, the purchaser may be required to pay a weekly fee to the seller, similar to rent, and is usually responsible for the legal fees in preparing the document of the seller.

 

M is for…

 

Mortgagee – this is the financial lender who has agreed to provide you funds to purchase property.

 

Mortgagor – this is the property owner who has agreed to mortgage the property as security for a loan.  

 

N is for…

 

Notice to complete - In NSW, many contracts for sale include a provision that allows for a “notice to complete” to be issued if a party to the contract is in default (e.g. they are late in settling). Notice to completes’ are issued by the non-defaulting party’s representative and gives the defaulting party 14 days to rectify the default. If the default has not been rectified by the due date, the non-defaulting party then has the option to terminate the contract and keep the deposit paid.

 

O is for…

 

Occupation certificate - A certificate arranged by the builders of a property, which allows a person to occupy the building. This certificate verifies that the certifying authority (whether it is the relevant council or a private certifier) is satisfied that the building is suitable for occupation as it meets the requirements of the Building Code of Australia and relevant development consent. For off the plan purchases, settlement usually occurs 14 days from the date the purchaser received the occupation certificate.

 

Off-the-plan purchase – this is when a purchaser enters into a contract to purchase a property that has not yet been built. Off-the-plan purchases encompass the land and the building in one contract, and as a result of this, the contract length can be several years.

 

This differs greatly from house and land packages, where there are two separate contracts for the land purchase and the build. In these situations, the land purchase is required to be settled before the build commences.

 

P is for…

 

Proprietor – the legal owner of a property e.g. if you are the proprietor of the land, you are the owner on title.

 

Principal place of residence – this is your main residence. Your principal place of residence is exempt from capital gains tax and from land tax.

 

Plans – these are the plans of subdivision that demonstrate the size of the land, whether the land is benefited or burdened by easements or the like, and displays the other lots included in that plan of subdivision. In NSW, plans can be a deposited plan, strata plan, or community title plan.

 

Q is for…

 

Quid Pro Quo – in order for a contract to be valid, there must be quid pro quo or consideration exchanging hands. This means that you do something in order to receive something. In terms of property law, the paying of money to receive the property satisfies the Latin principle of quid pro quo.

 

Quite enjoyment – when you own or lease a property, you have a right to the quite enjoyment of the property, to the exclusion of all others.

 

 

R is for…

 

Rescission – this occurs when purchasers wish to withdraw from the contract during the cooling off period. The effect of a rescission is that the contract is revoked and is no longer enforceable.  A purchaser must rescind a contract prior to the expiration of the cooling off period for the rescission to be valid.

 

S is for…

 

Settlement – this is the word that is used by industry professionals to describe the date and time that ownership passes from the vendor to the purchaser. In order for this to occur, the purchase monies, ownership documentation and transfer of ownership documentation are all required to be at the same place, at the same time. This signifies the end of the contract and is where the property is officially sold/purchased.

 

Section 66W certificate – a section 66W certificate is a certificate prepared and signed by the purchaser’s conveyancer or lawyer and waives the benefit of a cooling off period. This means that, once the contracts are exchanged, both the purchaser and vendor are locked into the contract. If contracts are being exchanged this way, it is important that purchasers have obtained their formal loan approval and satisfactory pest and building reports prior to the exchange.

 

Stamp Duty – stamp duty (which is now known as transfer duty in NSW) is a tax levied by all states on the purchase of properties (or the transfer of land). This tax is regulated by state government and some concessions and exemptions apply to particular circumstances (e.g. first home buyers). Stamp duty must be paid on or prior to settlement in NSW.

 

T is for…

 

Tenants in common - when buying property with two or more people, you can nominate whether you would like to purchase the property as joint tenants, or, as tenants in common. Tenants in common means that each purchaser would own a portion of the property that is specified in the transfer of land e.g. 50/50 split, 99/1 split etc. In the event that one owner passes away, the deceased share of the property will form part of their estate, which is then passed down in accordance with their will.

 

Transfer of land – this is the legal document that is lodged at the land titles office to formally transfer the ownership of the land from the vendor to the purchase. This document is required to be signed by the vendors prior to settlement.

 

U is for…

 

Unconditional – this is a word that is often used by industry professionals to describe a contract that is no longer subject to any conditions. An example of this is once the cooling off period has expired, or, an exchange occurred on a section 66W certificate. This means that both parties are locked into the contract and will be proceeding with the purchase/sale.

 

V is for…

 

Vacant Possession – if this is marked on the contract for sale, the vendor is promising to sell the property with no one living in it at the time of settlement. This means that the vendor is required to vacate the premises by the settlement date, enabling the purchasers to move in once settlement has occurred. The alternative to this is selling with an existing tenant, meaning, the property is being sold with a lease agreement attached to the contract for sale.

 

Vendor – this is the seller of a property. This is the person who is legally entitled to the sell the property and is usually listed on the title as the owner.

 

W is for…

 

Waive - If there is a condition in the contract that has been included for your advantage, you may wish to waive the benefit of that condition. In this instance the condition will no longer stand, and the contract may become unconditional. This is common in contracts that are subject to finance approval, or due diligence deadlines.

 

X is for…

 

eXtra careful – if you have any doubts or concerns about your property sale or purchase, it is vital that you consult the relevant industry profession to obtain expert advice. 

 

Y is for…

 

Yard – as a vendor, if you have specified that you will be selling the property with vacant possession, it is important that all rubbish and items are removed from the yard prior to settlement. If this does not occur, the purchaser may argue that vacant possession has not been provided and as a result may also attempt to delay settlement until it is provided. 

 

Z is for…

 

Zoning – this refers to the rules and regulations that are dictated by local or municipal levels of government. The zoning of a property specifies what type of development can and can’t be done on that property, and, what type of development requires developmental consent.

If you have any questions or for further information contact:

Allyce Silm
Lawyer
allyce@couttslegal.com.au
02 4607 2119

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

We're Friends ... Do I Really Need A Property Settlement With My Ex?

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I’ve separated from my partner, but we’re still friends. Do I really need a property settlement?

 

Separating from your partner is difficult enough without having to navigate the complex legal framework surrounding separation and divorce.

Many couples can reach their own agreement as to how to divide property, and they may think this is the end of the story. However, there remains questions such as what happens if one party reneges on your deal, wins the lottery, or receives a large inheritance? In the event of any of the above, the agreement is not enforceable, and there would nothing to prevent a party from making a claim on the other’s assets.

Coutts understands the balance between achieving a fair settlement and maintaining amicability between the parties. We provide personal and tailored advice as to whether an agreement reached between parties is just and equitable within the scope of the Family Law Act. We often represent one party in the matter and liaise with the other unrepresented party to finalise an agreement, so that only one set of legal fees are incurred.

At Coutts, we generally recommend finalising your agreement by Consent Orders. This document confirms your agreement in writing, is signed by both parties, and is then sent to the Court to make binding Court Orders. Consent Orders finalise your financial relationship, so that no further claims can be brought. You do not need to attend Court for this process, and as a result your agreement is now enforceable should any problems arise in the future. Additionally, Consent Orders provide an exemption to paying Stamp Duty if you wish to transfer a property into yours or your ex-partner’s sole name. In the majority of cases, the cost of Consent Orders is far less than the eventual cost of Stamp Duty.

Whether you are already in agreement as to how to divide your property, or need a little help working it out, please contact Coutts to book in an initial appointment so we can talk you through the process.

 

For further information please don’t hesitate to contact:

Emma Harrison
Lawyer
emma@couttslegal.com.au
02 4607 2147

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

GUEST BLOG: How using Afterpay and other 'buy now, pay later' schemes affect your mortgage application

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What does "Afterpay" really mean for me in the long run.

With the Royal Commission and tightening of lending policies, we are going to see a very different lending landscape in Australia.  Unfortunately a lot of people including our first home buyers are not aware of how all these new products where you buy now and pay later, may actually mean they will pay later by losing their opportunity to have the Australian dream of buying a home one day... I have invited Andrew Evans of Mortgage Guy to explain what buying products with "afterpay" really means for their credit rating....  I will be inviting our close working partner advisors to share their intel with our readers over the next couple of months.

Introduction written by Adriana Care, Managing Partner, Coutts


Ever seen that must-have-now item that you don’t have the cash for right now? What if it was four equal instalments? Interest free payment app, Afterpay[AE1] , is taking the retail space by storm because it allows shoppers to get what they want now and worry about paying for it later.

Afterpay has seen dramatic growth over the last few years with more and more retailers coming on board. With even Jetstar joining the party for domestic flights[AE2] , it’s getting easier than ever to buy now and pay later.

But what are the down sides? According to this article on ABC News, Afterpay made over $28 million in late fees [AE3] from when its customers miss a payment. Make sure you don’t contribute by paying on time.

However, now that you’ve got your eye set on that amazing home, Afterpay might have some unexpected impacts.


Your credit file

Everyone who applies for the ever-necessary home loan will have their credit file checked by the home loan lender they apply to. The lender will look for black marks such as defaults and more recently repayment information on your existing financial commitments[AE4] .

All this information is used to determine a credit score – a magic number that decides whether the lender will loan you money, or not.

Will Afterpay appear on your credit file and affect your credit score? Probably not, but it is certainly possible. Currently, Afterpay does not appear to do credit enquiries which means it shouldn’t affect your score every time you use the service.

However, the Afterpay T&C’s [AE5] do give them permission to put credit enquiries on your file and to report “negative activity … (including late payments, missed payments, defaults or chargebacks)” to the credit reporting agencies. If you end up behind on your payments you could find yourself in the credit score badlands. As a mortgage broker, I have seen loans declined purely based on having too many enquiries on their credit file.

The best thing you can do if you must use Afterpay is not over use the service and keep an eye on your credit file [AE6] which you can do for free, once per year.


Your expenses

The other potential impact from using Afterpay is on your living expenses. Living expenses is a huge focus [AE7] now and it’s all about ensuring lenders have an accurate idea of how much you’re spending of day to day costs plus of course, splurging on smashed avocado on toast[AE8] .

The home loan lenders are still figuring out how they handle Afterpay. They can’t treat it like a credit card because it only lasts four payments. Many have settled on including it in your living expenses. With most banks requiring bank statements on all accounts (and some up to 4 months!) they are going to see your Afterpay payments and want to take it into account. A heavy Afterpay user with lots of large payments (like for domestic flights) is going to have an undesired impact on their borrowing power.


What about how it looks

The other intangible downside is that it just doesn’t look great to a home loan credit officer. Some home loan credit assessors perceive Buy now, Pay later services with negative connotations. When you’re trying to buy that dream home the last thing you want is for that 75” flat screen that you Afterpay’d to cause a decline.


So, what should you do?

I have plenty of customers using Afterpay and still getting home loans. However, I have also seen extra focus put on deals with these payment services. A bad credit score is something to be avoided.

The key to everything is moderation. Here are my top tips for being able to get that house:

  1. Don’t be lured into purchasing something you can’t afford. Even if it has a payment plan.

  2. Only use the Buy now, Pay later services when you need to and ensure you can pay it off comfortably without incurring late fees. Or better, use a service I call Save now, Buy later – it’s free!

  3. If you’re in trouble, the worst thing you can do it ignore it. Be open and talk to the lender – you will have a very different conversation that if they have to chase you up. There are also financial counselors available to help[AE9] .

Article written by Andrew Evans, Broker for Mortgage Guy

If you are planning on buying or selling a home, we can assist with all your conveyancing needs. For information and advice on mortgages, our team can pass on your details to Andrew Evans.

Adriana Care
Managing Partner
adriana@couttslegal.com.au
1300 268 887

References:

 [AE1] https://www.afterpay.com/en-AU/how-it-works

 [AE2] https://www.jetstar.com/au/en/afterpay

 [AE3] https://www.abc.net.au/news/2018-08-24/afterpay-late-fees-24pc-income-asic-loophole-credit/10156902

 [AE4] https://www.canstar.com.au/credit-score/what-is-positive-credit-reporting/

 [AE5] https://www.afterpay.com/en-AU/terms-of-service

 [AE6] https://www.mycreditfile.com.au/products-services/my-credit-file

 [AE7] https://www.smh.com.au/business/banking-and-finance/apra-pressures-banks-over-customers-living-expenses-claims-20180530-p4ziet.html

 [AE8] https://www.news.com.au/finance/money/costs/avocado-toast-mortgages-have-gone-global/news-story/0e691bfafc89e2d1511a7cbdfd074e9c

 [AE9] https://www.financialcounsellingaustralia.org.au/Home

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

ABCs of Retail Leasing!

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Whether you are a Landlord or Tenant there are some terms that it is good to have a refresher on from time to time, especially with the changes introduced to the Retail Leases Act in 2017.

Below is an overview of the basic terms and concepts you may come across in retail leasing.

In the beginning… negotiations…

Retail Tenancy Guide

When negotiating a lease with a Landlord they are required to provide a copy of this Retail Tenant’s Guide to prospective Tenants for their information. Click here for more info.

 

What is a ‘retail shop’ under the Act

The definition of ‘retail shop’ under the Act has been further clarified with the recent amendments. As such, the Act now notes that a retail lease is required for a shop selling and supplying goods and services where the shop is less than 1,000 sqm and is used for a retail business.

This definition excludes ATMs, vending machines, internet booths, children’s rides, telephone boxes and storage areas (not within the shop).

 

Disclosure Statements

Lessor’s Disclosure Statement

The Landlord is required to provide a Lessor’s Disclosure Statement at least 7 days prior to the commencement of the Lease.

The Disclosure Statement set out important details regarding the shop and the lease. If the shop is within a shopping centre than additional information is required.

Lessee’s Disclosure Statement

Once the Lessor’s Disclosure Statement has been received by the Tenant, the Tenant has 7 days to respond by providing the Lessee’s Disclosure Statement. The Lessee’s Disclosure Statement must state if:

• you have received the Lessor’s Disclosure Statement;

• you have a draft lease;

• you have obtained professional advice regarding the Tenant’s lease obligations; and

• whether the Landlord has made any other verbal agreements or representations to you and any relevant details. All agreements reached during negotiations must be set out in the Disclosure Statement. If not, the Tenant must notify the Landlord immediately and request a new Disclosure Statement.

 

The forms of the Lessor and Lessee Disclosure Statements can be obtained from the NSW Small Business Commissioner here.

 

Condition Report

It is advisable that prior to taking possession of the shop that the Landlord and Tenant undertake an inspection of the shop and complete a report regarding the condition of premises. This allows both parties to understand what the expectation is when the lease ends regarding the condition the premises should be left in. The NSW Small Business Commissioner provides an example report if the Landlord does not have a standard form.

 

Permitted Use

The permitted use sets out the type of business the Tenant can operate from the shop. If the Tenant intends to use the shop for another use then the Landlord’s and Council’s consent will need to be obtained.

 

Minimum 5 year term

As of 1 July 2017 there is no longer a minimum 5 year term under a retail lease or a need to waive the Tenant’s right to minimum 5 year term.

Despite the term of the lease, the Landlord is required to provide a fully executed lease to the Tenant within 3 months of receipt from the Tenant.

 

Option to Renew

During the initial negotiations of the lease, the Landlord may offer or the Tenant may request that there be option to renew the lease at the end of the initial term.

If there is an option to renew under the lease, then a set period of time is stated during which the Tenant must notify the Landlord in writing of their intention to take up the option.

 

Outgoings

Outgoings are expenses relating to the shop that are in addition to the rent. The details of any outgoings that have been agreed between the parties should be set out in the Lessor’s Disclosure Statement.

The Landlord’s obligations in relation to outgoings is that estimates are to be provided prior to the end of the financial year, with audited statements to be provided within the first 3 months of the new financial year.

If the Landlord does not meet their obligations following a request for the information, then the Tenant cannot withhold payment of the outgoings until the required information is received.

 

Rent Review Methods

Rent can only be increased once every 12 months and typically occurs on the anniversary of the commencing date of the lease. There are several methods of rent review as set out below:

CPI

This is a percentage increase based on the rate of inflation. While the Landlord is required to give notice of the increase, by signing the lease you have agreed to the increase on this basis.  

Fixed Percentage

This is a set percentage as agreed between the Landlord and Tenant during negotiations of the lease. As above, if the Landlord fails to give notice of the increase you have agreed by signing the lease and are committed to paying the increased amount of rent going forward from the date as set out in the lease.

Market Rent

A rent review by market rent is most common upon the exercise of option to renew. This can be negotiated by the Tenant prior to commencement of the option to renew after requesting for an early determination of market rent.

The Landlord and Tenant can reach an agreement on the market rent, or they can appoint a valuer to determine the rent payable. If the parties cannot agree on a valuer, they can request that the NSW Small Business Commissioner appoint a specialist valuer.

 

Lease Incentives

Lease incentives are something that shopping centre Landlord’s may offer to encourage a new Tenant to take a lease.

Rent Free Period

A rent free period usually occurs at the beginning of the lease term. This type of incentive is typically given to allow the Tenant to set themselves up and commence trading. Rent free periods can be for a period of 1 to 3 months.

Fitout Period

A fitout period also typically occurs at the beginning of the lease term, it may also occur prior to the lease commencing. It allows the Tenant time to install and set up the shop with the necessary fixtures and fittings without trying to operate a business or account for lost potential income while increased expenses are being incurred. During a fitout period a rent free period will typically apply.

 

Landlord’s works

The Landlord may be required to undertake works, known as ‘Landlord’s works’ to prepare the shop for the new Tenant prior to the Tenant undertaking their fitout works. If this occurs then the Landlord may require the Tenant to contribute to some of these costs. These costs should be agreed prior to entering into the lease and be set out in the Lessor’s Disclosure Statement.

Any works undertaken by the Landlord will typically remain the property of the Landlord following the end of the lease, unless previously agreed between the parties.

 

What is required from the Tenant prior to the commencing date?

In addition to providing the Landlord with a signed lease and relevant registration fees (if requested), the Tenant must provide a Certificate of Currency satisfactory to the Landlord, along with a Bank Guarantee or cheque for the Retail Bond. Details of these items are set out below.

 

Insurance and Certificate of Currency

It is common practice among Landlords to require the Tenant to take out insurance policies for public liability, and in retail spaces plate glass. Under the lease the requirements of the Landlord will be set out to include the level of cover, generally speaking this is $20,000,000 for public liability and that the Landlord should be noted as an interested party. An example of this is a requirement that the insurance policy will not lapse without the landlord being given at least one month's prior written notice.

In order to meet the obligation under the lease, the Tenant is required to provide a Certificate of Currency for each policy prior to the commencing date, with updated Certificates of Currency to be provided upon request by the Landlord.

 

Bank Guarantee or Retail Bond

A bank guarantee or retail bond is provided by the Tenant to the Landlord at commencement of the lease. This is typically in the amount of 3 months rent. If the Tenant is providing a retail bond then the following Retail Bond Lodgement form should be used by the Tenant and Landlord when lodging the bond with the NSW Small Business Commissioner. The Landlord is required to lodge the Retail Bond with the Commissioner within 20 days of receipt.

The purpose of a bank guarantee or retail bond is to provide coverage to the Landlord in the event that a Tenant is in arrears under the lease or if the Tenant vacates the premises and does not satisfactorily complete the make good requirements under the lease. If the Landlord needs to make a claim on the retail bond paid then they are required to use the following Claim for Retail Bond Money form issued by the NSW Small Business Commissioner.

If the Landlord draws down (uses) the bank guarantee or retail bond during the term of the lease and the Tenant remains in occupation of the premises, then the Tenant will be required ‘top-up’ the bank guarantee or retail bond to the amount required under the lease. If the Tenant does not attend to the ‘top-up’ then the Tenant will be considered in breach of the lease.

At the end of the lease, provided the Tenant has fulfilled all of their obligations under the lease, then the Landlord is required to return the bank guarantee within 2 months.

 

After signed lease provided by Tenant

Registration requirements

If a retail lease is for a term of 3 years or more (including any option to renew) then the lease must be lodged for registration within 3 months. There are exceptions to this time frame in mortgagee’s consent to the lease is required.

If the lease is not being registered, then the Landlord must returned the fully executed lease to the Tenant within 2 months after receipt from the Tenant.

 

The end of the lease

Make good

The make good requirements are set out in a retail lease and usually require that the Tenant returns the shop to the same condition it was in prior to the lease commencing, except for fair wear and tear. This is when the Condition Report the parties completed at the beginning of the lease becomes important. The existence of a completed condition report may result in less misunderstandings surrounding the original condition of the shop. It is advisable for the Tenant to discuss the make good requirements with the Landlord prior to the end of the lease to determine what works the Landlord expects.

It is also important to establish whether the Landlord will require the make good works to be completed by the end of the lease, or whether they will allow a period of time after the lease ends for the works to be completed.

Assignment of Lease

An assignment of lease occurs, most commonly, when a business is sold and the lease is transferred to the new business owner. An assignment of lease needs to be consented to by the Landlord. A request for assignment of lease must be made in writing to the Landlord along with details about the business and financial resources of the proposed assignee. Typically under a retail lease the Landlord cannot unreasonably withhold consent provided they are respectable, solvent and capable of meeting the Tenant’s obligations under the lease. The Landlord has 28 days under the Act to provide their response to the request for consent. If no response is received from the Landlord within 28 days then consent is assumed to be provided.

Once the Landlord provides consent a Deed of Assignment will be prepared, generally by the Landlord’s solicitor which will be signed by all parties, including the Landlord. The Deed will include a Transfer of Lease that is to be lodged with Land Registry Services to record the change of Tenant on the Certificate of Title for the property.

Under an assignment of lease the Tenant will be required to pay the Landlord’s legal and other costs related to providing the consent.

There is set process to be followed in relation to an assignment of lease under the Act and as such it is recommended that you obtain legal advice when undertaking this form of action.

The information provided above is not a comprehensive list of all matters that you may come across during a retail lease. If you need specific advice on a particular matter please contact our office.

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

NSW vs QLD – who triumphs when it comes to stamp duty?

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Stamp Duty – what even is it?

Stamp duty is a tax imposed by the relevant state government on real estate acquisitions and purchases. Stamp duty is payable in addition to the purchase price, and, the amount that is charged is regulated by the relevant state government in which the property is located in. The amount of stamp duty that a purchaser is required to pay is also dependent on the purchase price of the property.

 

Stamp duty (or “transfer duty” in QLD), is payable by purchasers during the conveyancing process and is, at times, considered as a ‘surprise expense’ in the process. Many purchasers are not aware that stamp duty must be paid prior to the transfer of land (which registers the property into your name) being accepted by the titles office. Although some purchasers may be eligible for concessions and exemptions, the payment of stamp duty is an inevitable expense associated with purchasing a property. 

 

Did you know?

The relevant due date for stamp duty depends on which state you will be purchasing in – it is therefore essential that, as a purchaser, you are aware of the stamp duty regulations in the applicable state. This blog will briefly touch on NSW and QLD.

 

New South Wales

In NSW, it is usual process for conveyancers or lawyers to advise purchasers of the stamp duty amount, and to also process the duty on the purchaser’s behalf.

Unfortunately, unless you are buying an “off the plan” property and will be living in it after settlement, stamp duty must be paid within 3 months of the date of exchange (this is the date of the contract). This means that you will be required to have the funds available for the payment of stamp duty within 3 months of exchange, even if you are purchasing unregistered land (or an off the plan investment) that will not be ready for two years. If stamp duty is not paid within 3 months of the date of exchange, the State Revenue Office will charge interest on the unpaid stamp duty amount until such time that it is paid.

Purchasers can estimate the stamp duty payable prior to making an offer on the property by utilising the Revenue NSW calculator here.

Queensland

Similar to NSW, conveyancers or lawyers dealing with QLD purchasers can advise on the stamp duty (transfer duty) amount and can also process the duty on the purchaser’s behalf.

In QLD however, transfer duty is usually not payable until settlement. This is because, in QLD, transfer duty is payable within 30 days of an “unconditional” contract. As most contracts are conditional upon an event occurring in QLD (for example, the contract being conditional upon the purchaser obtaining finance, or conditional upon the draft plans of subdivision being registered) the 30-day deadline to pay transfer duty starts once these conditions are met. In most conveyancing transactions, this means that transfer duty is not due and payable until settlement.

This extended due date of transfer duty then gives purchasers a plethora of finance options in relation to the payment of duty i.e. they can account for the duty in their application for finance,  or, they can save whilst waiting for the land to register and can then draw from their own funds. 

Further information in relation to transfer duty in QLD can be found here.

 

For further information contact:

Allyce Silm
Lawyer
allyce@couttslegal.com.au
02 4607 2119