Property Settlement

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.

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

 

 

 

To buy or sell first? Part two

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If you are looking to buy a new home and sell your existing home you've most likely wondered whether you should buy or sell first.

There are several things to consider when making this decision so you are best prepared for the journey. In part two here we'll look at things to consider when buying first.

Buying first

Pros

  • There is less pressure to just ‘get’ a new home so you can settle on time – you can really shop around
  • You have greater certainty that you will only have to move once
  • In a quickly rising market you may be able to achieve a higher sale price and secure a better price on your new home

Cons

  • Bridging finance may be required if you do not sell your existing home in time for settlement
  • You won’t have a clear budget for your new purchase
  • You will need to ensure you have a cash deposit sufficient to cover the purchase or be prepared to obtain a deposit bond

Deposit Bond

When buying a property, first you will need consider options for payment of the deposit.  The traditional method of payment of a deposit is cash.  However, when cash is not available like when your equity is tied up in your existing home, a deposit bond maybe a suitable option.

There are private companies that issue deposit bonds and banks can issue the equivalent being a bank guarantee.  Each issuing institution will have different fees and criteria so you will need to investigate these and ensure you comply.

Your conveyancer and mortgage broker can assist in this process.

Bridging Finance

When buying first your ability to cover the mortgage of two properties will be a main consideration.  Bridging finance is an option worth discussing with your mortgage broker.  Bridging finance loans have:

  • shorter terms of between 6 and 12 months;
  • fixed and variable rates are typically still offered;
  • higher interest rates; and
  • Lenders Mortgage Insurance may still apply if the loan is more than 80% of the total value of both properties.

Extended Settlement

As noted above, a longer settlement period of approximately 10-12 weeks (or longer if you are moving to an area where properties are scarce) maybe a necessary consideration.

The downside of an extended settlement is you may need to accept a sale price that is lower than you originally expected in order to sell in time to achieve settlement.

Contingency Plan – Conditional Purchase

A last resort to overcome the cons is to make your purchase dependant on the sale of your home.  As noted above, this can be negotiated be your conveyancer or solicitor.  Keep in mind that a vendor does not have to agree to this request.

Other Considerations

If settlement of both your sale and purchase have been timed perfectly there are some last minute considerations that need to be covered to ensure settlement goes well.

  • Timing for final inspection

When buying property you are entitled to a final inspection of the property within 48 hours prior to settlement.  This is also relevant for the people buying your property.

  • Timing for settlement

If settlement has been timed perfectly it will occur at the same time on the same day.  Otherwise, settlement may need to occur a few days apart to allow funds to clear and cheques to be drawn.  Settlement is most likely going to occur after 2pm as many banks have this requirement.

Do you have to attend settlement – the short answer here is no.  Your solicitor to conveyancer will arrange attendance by a settlement agent on your behalf.

  • Timing for moving out/moving in

So, settlement has been set for the same time on the same day.  Great news – you only have to move once.

Now it is time to co-ordinate moving.  The best option tends to be hiring a removalist with a truck large enough to fit all of your furniture and possessions in, in one go.  This will allow you to pack up and vacate the property easily prior to settlement.

  • Moving into new property including the collection of keys

Once you have moved out of your old home, you will be waiting for the keys to move into your new home.  In order for you to collect the keys , your solicitor or conveyancer will call the agent and let them know settlement has been finalised, this will happen within 30 mins to 1 hour of the set settlement time.  This call will enable the agent to release the keys to you and you will finally be able to move into your new home.

If you're thinking of selling first, have a read of part one here.

If you would like more information on the process of buying and selling please contact Kylie Fuentes our licensed conveyancer in Picton.

To buy or sell first? Part one

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If you are looking to buy a new home and sell your existing home you've most likely wondered whether you should buy or sell first.

There are several things to consider when making this decision so you are best prepared for the journey. In part one here we'll look at things to consider when selling first.

Selling first

Pros

  • You are in a better position to negotiate your sale price
  • You will know what your limit is on purchase price when buying your new home
  • The need for bridging finance is less likely
  • You can plan ahead and extend the settlement period to allow you to secure your new home

Cons

  • In a quickly rising market your new home may be more expensive than you planned for
  • You may need to consider temporary accommodation if you have not secured a new home by settlement on your sale
  • Possibility of storage fees or double the removalists fees
  • If permitted under your contract you may use the deposit paid by the purchaser towards the deposit payable on your new home

Negotiating power

A main benefit in selling your existing home first is that you will know exactly what you can spend on a new home.  This will help you budget your family expenses and make the right move for you and your family.  By selling first, you also put yourself in a better position to negotiation the best sale price as you are not under pressure to achieve settlement on a certain date.

Extended settlement

In this scenario however, a good option is to have a longer settlement period of approximately 10-12 weeks (or longer if you are moving to an area where properties are scarce).  This will allow time for the cooling off period on your sale to come to an end and for you to secure a new home to move into.  This will also reduce the likelihood of needing temporary accommodation and extra moving costs.

Releasing your deposit

Many people looking to move on in the property market may be hesitant due to access to funds for a deposit, especially if your deposit funds are tied up in the equity in your home.  By selling first you can overcome this issue.  Ensure when your Contract is prepared that it allows you to use the deposit being paid by the purchaser prior to settlement.  By having this provision in your Contract you will be able to access these funds for your purchase.

Leaseback

If an extended settlement will not work for your buyers you could raise the option of a leaseback provision.  By doing this you effectively extend your moving out date until you secure a new home.  This is useful if your existing home is one investors are likely to be interested in as they will have a guaranteed tenant from the settlement date.  The details of this kind of provision are usually negotiated at the time of exchange.

Contingency plan – Conditional Sale

A last resort to overcome the cons is to make your sale dependent on you purchasing your new home.  Your conveyancer or solicitor can insert a clause into the Contract that stipulates that settlement is not triggered until you have secured your new home which will allow you to line up settlement allowing you to only have to move once.  Keeping in mind this may reduce the number of buyers interested in your existing home.

Contingency plan - Renting

If the above options do not suit your needs or your purchaser you may need to consider a short term rental until you have secured your new home.  If you do consider this option, when looking at rentals be very clear that it is short term situation and check what the termination costs are if you move out earlier than the lease expiry date.

If you're thinking of buying first keep an eye out for part two where we'll outline further considerations to help you prepare for the journey.

Ready to discuss your next buying or selling property transaction? Talk to the team at Coutts Solicitors & Conveyancers.

Do we need to pay our property grants back?

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If you have recently built a home with your partner, or bought a brand new home, and you have now separated, there is a chance that you will need to pay your property grants back.

Below we explain when you need to pay your property grants back, when you don’t need to, and what else you should know to protect yourself.

If you are selling the property

If you are selling the property for which you received property grants, then there is a high chance that you will need to pay back those grants. The rules for property grants are as follows:

  • New Home Grant

    • If you purchased a home complete and ready for occupation or an off the plan purchase you are not required to pay back the grant.

    • If you purchased vacant land with the intention to build a dwelling:

      • But did not commence construction within 26 weeks of settlement then you must repay the grant; or

      • If you completed construction then you will not be required to pay back the grant.

  • First Home New Home Stamp Duty Exemption/Concession

    • If you purchased vacant land with the intention of building a dwelling; or

    • If you bought a new home that had not been lived in previously, then:

      • At least one purchaser must have occupied the Property for a continuous period of 6 months in the first 12 months. If this has been achieved then the stamp duty exemption/concession does not need to be paid back.

      • If you have not commenced construction or neither purchaser has lived at the property for the required period then the exemption/concession must be paid back on or prior to settlement of the sale.

  • First Home New Home Grant

    • The guidelines above for the Stamp Duty Exemption/Concession are also applicable to the grant.

If one of you is keeping the property

If one of you is going to keep the property and buy the other out, there is a chance that you will not need to pay back the grant money that you have received.

In order to avoid paying back any stamp duty concession or grant received on your Property you must meet the eligibility and residence requirements, which are set out below:

  • New Home Grant

    • If you purchased a home complete and ready for occupation or an off the plan purchase you are not required to pay back the property grant.

    • If you purchased vacant land with the intention to build a dwelling:

      • But did not commence construction within 26 weeks of settlement then you must repay the grant or request an extension to meet the requirements of the grant which would avoid the need to pay back the grant; or

      • If you completed construction then you will not be required to pay back the grant.

  • First Home New Home Stamp Duty Exemption/Concession and Grant

    • Either purchaser must have lived at the Property for a continuous period of 6 months within the first 12 months after settlement or completion of the dwelling.

What should be done from a Family Law point of view?

If you have separated and have property together, you should be entering into a formal family law settlement. To read more about why, please click here.

In addition to providing you with protection and certainty in the future, a formal family law property settlement will also help the party who is going to keep the property avoid having to pay stamp duty on the transfer into their sole name.

A family law property settlement is also important if you have previously received property grants. Any settlement should cover who, out of the two of you, will be responsible for paying back the grants in the event that the conditions set out above are not complied with. If you are not keeping the house, and you are selling your share to your former partner, you may want any settlement to say that you will not be responsible for paying back the grants in the event that your former partner does not comply.

This will help both of you move forward into the next chapter of your lives with certainty.

If you would like more information about this, please contact our office to make an appointment.

Should I let my Children Travel overseas with my ex?

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If your ex has asked to take your children to travel overseas with them, you may be worried or questioning, "Should I let my children travel overseas with my ex?". On the one hand overseas travel can be an amazing opportunity for children to spend time with your former partner and learn about the world. However, it can be a scary and uncertain thing for the parent who isn’t travelling with the children. When considering a request from your ex to take your children travelling overseas, you obviously need to consider if it is safe for your children to travel. One of the biggest concerns people express  is that the other parent will not return the children to Australia.

When weighing things up, you should consider the following:

  1. Is your former partner a citizen, or are your children citizens of another country?
  2. Does your former partner have family in another country that they are close with?
  3. Has your former partner ever lived overseas, or expressed a desire to move overseas with the children?
  4. Is your former partner proposing to travel with the children to a country that is not a signatory to the Hague Convention?
  5. Do you have current Family Law Orders in place?

What is the Hague Convention?

Formally called ‘The Hague Convention of the Civil Aspects of Internal Child Abduction’, the Hague Convention is an international treaty that provides avenues for child recovery when a person takes children overseas without permission or does not return to the home country as promised.

Countries that have agreed to be a part of the Convention are called ‘signatories’.

Australia is a signatory to the Hague Convention, and so when children travel to other signatory countries, the Hague Convention applies. However, if children travel to other countries that are not signatories to the Hague Convention, then the treaty does not apply and the avenues it provides are not available if the children are not returned. For the full list of countries practicing the Hague Convention click here.

What are Family Law Orders?

Family Law Orders are orders that have been made under the Family Law Act. They provide orders about things like who children live with after separation takes place. Family Law Orders can also provide conditions of overseas travel.

If there are Family Law Orders in place, both parties are bound to comply with the orders. Failure to comply allows the other party to make an application to the court to enforce the orders under certain circumstances.

So, what can I do to make sure that my children travel safely with my ex?

Holidays are a part of life, and overseas travel is a wonderful opportunity for your children to learn about the world. But, if you are unsure or uncomfortable with the thought of your children travelling and want to know more about your options, please contact us for an appointment.

The Coutts Solicitors Family Law team are experienced and knowledgeable in all areas of current Australian Family Laws. Several members of our team practice solely on Family Law Matters, meaning they have advised hundreds of people on Family Laws. Each of our team are excellent at negotiation and mediation outside of Court, as well as representing you in Court if you wish to proceed to this level. If you would like to know more about Family Law and how Coutts can help, please click here.

Time limits when separating

If you are separating from your partner it is important to remember time limits when separating and protect yourself with a property settlement within this time frame. People who enter into marriages and de facto relationships create a very special relationship emotionally, socially, and legally. That special relationship brings many rights and obligations at law. It is these legal implications of a relationship that allow a property division to take place when a relationship ends or when a couple are separating.

Dividing up property and having a property settlement is different for every separating couple. To understand exactly what you need to do, it is best to speak with a family lawyer.

It is also important that you know that there can be time limits on when a property division can take place.

How early can we do a property settlement?

You can do a property settlement as soon as separation takes place. To ensure that your property settlement is legally recognised, you should engage with a lawyer and do things properly. This process can take a few weeks or a few months depending on the case.

De facto time limits

If you have been in a de facto relationship and you have separated, it is important that you know that you only have two years to make an application to the court to have a property settlement take place.

Example: John and Sarah separate on 31 August 2013. They have a house together, bank accounts, and cars, but they never got married. John and Sarah talk about how they want to divide up the property but can never reach an agreement.

John and Sarah must either enter into a legally recognised agreement, or make an application to the court by 31 August 2015. If they do not do this, they no longer fall under the Family Law Act, and this can cause serious legal issues for them.

Marriage time limits

If you have been married, it is important to know that there is no time limit on when a property settlement has to take place, unless you have gotten a divorce and more than 12 months has passed. This is very important to consider as it means that the legal rights and obligations that your marriage has created do not end until you do have a legally recognised agreement or a court order in place.

Example: Chris and Tammy have been married for seven years. They have each have superannuation, cars, bank accounts, and credit cards. They also have a house and a mortgage. They separate on 1 May 2012. Although they often talk about it, they cannot reach an agreement on how to split up the property and who should have to pay the credit cards. On 30 June 2013, Tammy applies for a divorce, and the divorce is granted on 1 August 2013. Chris and Tammy then only have until 1 August 2014 to enter into a legally recognised agreement or make an application to the court for a property settlement. If they do not do this in time, then they no longer fall under the Family Law Act and this will lead to serious legal issues for both of them.

For advice on your circumstances contact Coutts Solicitors & Conveyancers on 1300 268 887 your first consultation is FREE for up to 1 hour.

Can "friends with benefits" become friends with inheritance benefits?

Can an ex personal friend claim inheritance benefits from your estate if you die? In March 2014 the Supreme Court of New South Wales considered this question. In this case, a wealthy man died after a battle with cancer. He left his multi-million dollar estate to his second wife, Lisa,and their two children. His first wife, Adele, sought provision from the estate.

He had met Adele in the US in 1988 and they were married shortly afterwards. They divorced in 1995 and did not have a Family Court Property orders made at the time. The reason they divorced was that they could not agree on whether to permanently settle in Australia or the US. They had no children together. It seems that they both continued a close friendship after their divorce and Adele held hopes they would resume a romantic relationship. He made representations to her, her sister and her father that he would look after her. He married Lisa in 2009 and together they 2 children. At this time it seems his contact with Adele became infrequent.

In granting Adele provision, the judge considered relevant the fact that the estate was very large and in providing for her, Lisa and the children were still being taken care of. He also decided that the lack of fault or acrimony attached to the breakdown of the marriage, her ongoing friendship and the lack of a family law settlement were relevant factors in Adele’s favour. Adele had little financial means of her own. She was granted $200,000.00 from an overall estate of approximately $11,000,000,000.00

This case again highlights some of the factors a court will consider when a previous partner is seeking provision from an estate. It is also a timely reminder of the dangers of testators telling people that they will be looked after in the Will, but then not updating their Will.

It is also an important for anyone who has ended a relationship- whether it is a marriage or a de facto relationship- of the importance of having a formal property settlement. Even if the split is mutual and friendly, it is important to formalise the end of the relationship from a financial point of view. The Judge even commented that had there been a property settlement following the end of their relationship, the first wife would not have succeeded in making a claim against her ex-husband’s estate.

If you need to clarify your circumstances for either a separation or Will call Coutts Solicitors & Conveyancers on 1300 268 887.

'We don't need a property settlement', famous last words.

If you and your former partner have owned property together, it is very important that you get advice from a family law solicitor about how to separate and finalise any property that you have with a legal property settlement.  This applies to married couples, de facto couples, and same sex couples. Family law property settlements help to protect the assets that exist at the time of separation, as well as protecting the individuals from any further debts that the other party may enter into. But most importantly, entering into a family law property settlement provides people with the certainty that they need to move on to the next chapter of their lives.

What is a Family property Law settlement?

A family law property settlement is a formal way of separating the property that you and your partner have between you once a separation has taken place. It includes things like:

  • Who will get the former family home;

  • How much money will the other person have to be paid to ‘buy’ them out, and when;

  • Who will keep assets such as shares, savings, interests in business;

  • Who will be responsible for different debts.

A family law property settlement can be achieved by agreement, or determined by an order of the Court.

Why do we need a Family property settlement?

When people either get married or enter into a de facto relationship, they create a financial relationship between them.

A Family Law property settlement formally sets out who is to get what out of the property, and ends the financial relationship that is created as a result of their relationship status. This is particularly important to protect each persons interests as they move on with their lives and continue to acquire further property, or incur further debts.

It is also important to do a Family Law property settlement soon after separation, as the value of the property/debts is determined at the date of entering an agreement or an order of the court being made, not at the time of separation.

What can happen if we don’t do a Family Law property settlement?

Scenario 1 –Tracey and Paul purchase a house in Paul’s name. Seven years later, they separate. Traceymoves out of the family home and into a rental property. She does not have any contact with Paul. After about a year, Tracey decides that she would like to settle the property that is between them. After seeing a family law solicitor, she learns that Paul has increased the mortgage against the property without her knowledge, depleting the equity that was available to divide between them.

Scenario 2 –Jen and Matt have a house together. After separating, Jen stays in the home, and  Matt moves out. Then Jen pays Matt some money, but they never enter into a formal agreement. Soon after,  Matt re-partners and wants to buy a new house.  Jen then decides that a formal family law property settlement is necessary. Because the property settlement is considered to be at the time of a formal agreement and not the time of separation, Matt’s new house could become a part of the dispute.

Scenario 3 – Mark and Brad purchase a house together. Two and a half years later, they separate.  Mark vacates the house. Six months later, he tries to buy a new house, but cannot get loan approval as he is still on the mortgage for the home he had with Brad.

Scenario 4 – Frank and Kate have been married for four years, but do not own much property together so they don’t worry about doing a family law property settlement. Two months after separating, Kate receives a large inheritance.  Frank then starts family law proceedings against Kate. Because they had not done a property settlement before Kate received her inheritance, Kate’s inheritance now becomes a part of the dispute.

Scenario 5 – Karen and Scott have been in a de facto relationship for 30 years. They built their home together, and raised their three children there. When they separate, Scott promises Karen that she can keep the house, and that she will never have to worry about where she will live. They do not do a family law property settlement. Five years later, Scott starts proceedings to sell the house and split the proceeds equally.

In each of these scenario’s, the parties could have protected themselves if they had taken steps to enter into a family law property settlement soon after separation took place.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887.