From Contract to Completion – How Do You Get There?

 

Although buying and selling real estate is something that many people aim to and/or actually do, there is a lot of confusion and lack of understanding about steps must take place between signing a Contract and money and keys being exchanged.

A conveyance refers to the process that takes place to have real estate transferred from a Seller to a Buyer.  Understanding the basics of what is involved in this process is of great assistance if you actually want to know what is going on with your contract, what you are paying your lawyer or conveyancer for, why some parts of the process take time and what sorts of things can become major issues so should be dealt with as early as possible. 

Laws governing the purchase and sale of land are State based, meaning that the conveyancing process is different in each State.  The differences in the conveyancing process do vary quite significantly, so it is absolutely vital to get the correct information for the State in which you are buying or selling the real estate.

An example of how different the process can be is that in New South Wales generally a purchaser undertakes their due diligence investigations and arranges finance approval before signing a contract to buy a property whereas in Queensland these steps are usually only undertaken after the parties enter a contract of sale.  Therefore unlike its Queensland counterpart, the standard form contract of sale in New South Wales does not include terms and conditions about the contract being subject to the buyer obtaining finance approval, being satisfied with a building and pest inspection on the property or being satisfied with the outcome of a pool safety certificate inspection.

 

Conveyancing  – Queensland Style

The major steps in a standard conveyance in Queensland after the contract has been signed by both parties are:

Calculation of Dates

  1. The fully signed Contract is provided to the nominated solicitors for each party.  The solicitors calculate the dates when conditions are due under the contract and confirm the due dates with each other to ensure everyone is on the same page.  The most common usual due dates are:
  • Date for the cooling-off period to expire;
  • Dates that special conditions noted in the contract require particular actions to be taken by.  Examples of these may include the date by which the Buyer must pay deposit monies, the date by which the Buyer has to notify if they wish to terminate the contract because they are not satisfied with a building and pest inspection conducted on the subject property, or the last date by which the Buyer can terminate the contract if they have not obtained satisfactory finance approval;
  • Date that settlement of the sale is to take place.

          Satisfaction of Conditions 

The Buyer undertakes due diligence investigations on the subject property and makes application for finance approval (if borrowing money to purchase the property).

 The Buyer is responsible for arranging any building and pest inspection to be conducted on the property.

The Buyer’s solicitors normally provide a list of searches that the Buyer can nominate to be undertaken regarding the property with various local authorities and in relation to the Seller to check for any matter that might affect the ability of the Seller to be able to transfer the property to the Buyer (for example, that the Seller is not bankrupt).

 In relation to finance approval, in Queensland usually a financier will not finalise a decision whether to grant the particular loan until after the contract has been signed and a copy given to the financier.  Commonly it will be at this point that the financier will arrange for a valuation of the property to be undertaken to assess if it is worth sufficiently more than the amount being borrowed so that the financier could get its loan money and costs back if the borrower failed to repay the loan.  If finance is formally approved then loan documents will need to be sent to the Buyer, signed by the Buyer and returned to the financier and then the financier will need to certify all the returned documents before being ready to actually release the loan funds.

 

Arranging Release of Encumbrances

The Seller must take all necessary steps to ensure that at settlement they can transfer the subject property to the Buyer free of all encumbrances.

 An encumbrance on the title of a property refers to a registered interest of a party other than the registered owner on the title of a property.  One of the main effects of an encumbrance on the title of a property is that the registered owner cannot transfer ownership to another person unless the encumbrance is formally released by registration of the relevant documents with the Titles Office.

The most common type of encumbrance on the title of a property is a registered mortgage.  If at the settlement date there is a registered mortgage on the title of the property being sold then the Seller must ensure that at settlement the Buyer receives the release of mortgage document.

The usual process for obtaining a release of mortgage document is that:

  • the Seller must make a written request to the financier holding the mortgage for the mortgage to be released;
  • The financier advises of the conditions that need to be satisfied before it will provide a release of mortgage document.  Most commonly the condition will be that some or all of the loan owed to the financier is repaid.;
  • If the Seller does not agree with the conditions of release provided by the financier then it is up to the Seller to sort this out with the financier;
  • The Seller must ensure that at settlement the financier receives any funds and documents it requires to provide the release of mortgage.

 Production and Execution of Transfer Documents 

The Seller must sign transfer documents to transfer his or her interest in the property to the Buyer.  Usually the Buyer’s solicitors draft transfer documents for the Seller to sign and return before the settlement date.  The Buyer’s solicitors are responsible for ensuring that the transfer documents are signed on behalf of the Buyer and that the correct stamp duty notation is imprinted on to the transfer documents.

Settlement Figures

The Buyer and Seller must agree on the balance purchase price to be paid by the Buyer at settlement.

The balance purchase price is the contract price for the property less the deposit monies paid by the Buyer and adjusted as required by the Contract.  The most common adjustments are for the following items:

  • the cost of agreed outgoings such as the rates, water and body corporate fees (if the subject property is a unit) for the day up to and including the settlement date;
  • division of rent if the property is leased;
  • the fee to register any documents that must be registered with the Titles Office before the transfer to the Buyer can be registered (such as the Release of Mortgage for any registered mortgage against the property owed by the Seller); and
  • any negotiated deduction amount  (for example, because the Buyer discovered after obtaining a building inspection that the property required some repairs).

The solicitors for the parties will calculate the settlement figures usually around a week before the settlement date.

 Settlement Arrangements

A time and place must be agreed upon for where settlement is to take place.

Usually it is the choice of the Seller as to where settlement will take place, and if there is a mortgage registered against the title to the property then settlement will normally take place at the office nominated by the releasing financier.

The settlement time and place must be booked both with the releasing financier and with the Buyer’s financier if the Buyer is borrowing money to complete the purchase.

In practice financiers will only take a settlement booking once all their requirements such as receiving the relevant loan or release of mortgage authority from the customer have been satisfied.

Cheque Details

The balance purchase price must be paid by bank cheques, but the Seller has to tell the Buyer how many cheques to bring and who they are to be in favour of.  If there is a mortgage secured against the property being sold then usually one of the settlement cheques will be in favour of the financier for the amount owing on the loan by the Seller.  Because interest continues to accrue on loan amounts then very commonly the releasing financier will not have the accurate payout figure required until the day before or day of settlement.

 Stamp Duty

The Buyer is responsible for ensuring that the necessary stamp duty is paid regarding the transfer of property by the settlement date.

Stamp duty is the tax the Queensland Government imposes on the transfer of property, and normally it is the Buyer who pays this tax.  The amount of stamp duty payable depends on the value of the property being transferred and if any exemptions or concessions apply to the particular transaction.

 Usually the Buyer’s solicitors will arrange for the Buyers to sign any necessary declaration form if a concession or exemption is being claimed, and will also arrange for the relevant notification of the transaction to be made to the Office of State Revenue and for the transfer documents and contract to be imprinted with the required stamp duty notation.  The transfer documents cannot be lodged with the Titles Office unless they have the appropriate completed stamp duty notation affixed.

 Settlement

Settlement takes place.  This refers to the meeting between the parties and their financiers where the Seller receives the cheques for the purchase price and the Buyer receives the necessary documents to allow the property to be transferred to the name of the Buyer.

 Registration of Documents to effect Change of Ownership]

The Buyer or their financier (if they have borrowed money to complete the purchase) takes the transfer document and any other necessary documents to the Titles Office so that the Buyer can be registered as the owner of the property;

 Notification of Change of Ownership

Notifications of the change of ownership are made to the relevant local council and water authority by the Titles Office once the transfer documents are registered.

 

As can be seen, conveyancing is complicated and there are many steps involving many different parties.  It is vital to give instructions to your solicitor regarding due diligence searches to be ordered as soon as possible as some searches can take ten to fourteen working days to be received, and to sign and return all documents associated with applications for finance approval and releasing of mortgages as soon as possible.  At the end of the day if a Buyer or Seller is not ready to settle because their financier is not ready then it is the party and not the financier who is at risk of being sued by the other party to the contract.

It is also really important that you engage a law firm to assist with your conveyance who will give you all the necessary information and advice in a clear and thorough manner, and that you are able to easily contact and communicate with the solicitor or paralegal managing your matter.

At Schubert Law your conveyance will be undertaken by solicitor Alicia Schubert directly.  If you would like assistance with a purchase of real property or have further questions then please contact our Alicia Schubert on 3711 2709 or send us an email.

Wills, Enduring Power of Attorneys and Estate Planning – What’s the big deal and why bother?

It is all too common especially in today’s busy world for people to put off estate planning.  Estate planning refers to tasks associated with setting up your assets and liabilities so that in the event of your death or incapacity the assets and liabilities are managed in accordance with your wishes, pass to the people you wish to benefit and ideally minimize expense and tax.   Wills and Enduring Powers of Attorney are essential components of estate planning.

It is a common perception that there is no need or point for estate planning if you have very simple assets such as only owing a house, car, superannuation and one or two savings accounts.  However, this perception is also usually based on incorrect assumptions such as:

  • that in the event that you become incapacitated your spouse will automatically be able to make personal and financial decisions for you;
  •  that if you pass away without a Will that your spouse will automatically be entitled to your entire estate; and
  • that superannuation entitlements will automatically pass to the person nominated as a beneficiary to the fund or will automatically pass to the estate.

 

Do you actually know what assets and liabilities would fall into your estate should you pass away?  Do you know who can control and benefit from your estate?  Proper estate planning gives the answer to these questions and can:

  • save you, your estate and your beneficiaries money and expense by allowing your affairs to be managed in the most efficient way and in a way most likely to reduce potential conflicts;
  • give certainty to you and your family as to how your affairs are to be managed in the event of your incapacity and death;
  • allow your assets to be used for people you wish to benefit in the event of your incapacity or death.

 

A properly drafted Will and Enduring Power of Attorney that have been prepared as part of a total estate planning exercise should provide for arrangements in the event that something happens to you, and if something happens to your immediate next of kin.  Just as most of us consider putting on a seatbelt when you travel in a car an essential safety step even though you don’t actually think you are going to be in a car accident, everyone should take the essential safety step of having a current accurate and well considered Will and EPOA.

To assist in developing an effective estate plan and an appropriate Will and Enduring Power of Attorney you should ideally obtain legal and accounting advice.  It will be necessary for you to provide information regarding the following:

Past

  • previous marital and/or de facto spouses;
  • any matrimonial or de facto property settlement you have had;

Present

  • your assets, income, life insurance, superannuation and liabilities;
  • informal loans you have made to any person or that are owed by you;
  • your immediate family;
  • specific gifts you might wish to leave in your Will;

Future

  • who you wish to be the executor of your Will;
  • specific wishes you might have about a funeral or cremation;
  • who you would like to receive the benefit of your estate, and who would be your second choice if the first choice does not survive you;
  • who you would like to make personal and/or financial decisions for you if you could not do so;
  • if you would like any particular people to be able to have the benefit of your funds and/or property if you were incapacitated;
  • who you would nominate to be a guardian of any children of yours who are under eighteen, and any wishes you might have regarding care or benefits for those children; and

Exclusions

  • any things that you definitely would not want an attorney to do with your money or property if you were incapacitated (such as sell your home if funds were needed for your care);
  • if there is any person that you definitely would not want to have benefit from your estate

 

If you would like assistance regarding Wills, EPOAS or estate planning or you have further questions then please contact our Alicia Schubert on 3711 2709 or send us an email.

Pets and the Law – Queensland Focus


Sol Pup 2

In Australia there are more pets than people.  We love our animals, we often like to be able to take them wherever we go, we spend a lot of money on them, and because pets are such an essential part of our society then there are many areas of law that affect pets and ownership.  The more you look for these areas the more you find, and so in honour of our furry friends we have compiled a brief summary with a Queensland focus about six of the most important pet/law areas:

 

1.     Animal Welfare Law

This is probably the area of law relating to animals (pets and livestock) that people think of first.  The majority of laws relating to animal welfare are State based, meaning each State has its own particular laws.  In Queensland we have the Animal Care and Protection Act 2001 (Qld), which gives authority to the RSPCA, Queensland Police and Biosecurity Queensland inspectors to investigate allegations of cruelty toward animals. There are also national Codes of Conduct for treatment and handling of animals that generally relate to treatment of livestock animals.

The current maximum penalty in Queensland for the offence of cruelty to an animal is $220,000 or three years in gaol, but it is a long standing complaint by animal welfare organisations that convictions for offences of animal cruelty are not punished severely enough.

 

2.     Criminal and Civil Offences Involving Pets

Criminal and civil laws dealing with liability for acts involving pets and animals are governed by each individual State.

In Queensland the main criminal offences related to animals are set out in Chapter 44 of the Criminal Code 1899 (Qld) and particularly deal with killing and/or stealing animals.

_MG_2455The legislation in Queensland that deals with the responsibility for managing dogs and cats is the Animal Management (Cats and Dogs) Act 2008 (Qld). Section 10 of the Act defines who is considered to be legally responsible for an animal and obliges the responsible person to ensure their cat or dog is microchipped, registered with the relevant local Council.  This Act also sets out the definitions of dangerous and regulated dogs and the obligations of the people responsible for these dogs in terms of managing and keeping them.  Examples of these obligations include:

  • a general prohibition on breeding a declared dangerous or regulated dog; and 
  • requirements to prevent a dangerous or regulated dog from attacking or causing fear to another person  (section 194). 

If a dog attacks a person and causes harm or death then section 194 of the Act allows a Court to impose financial penalties on the person deemed legally responsible for the dog if that responsible person failed to take sufficient steps to prevent the dog from attacking.

3.     Contract Law Involving Pets

The most common example of contract law involving pets is the agreement for the purchase of a pet.

Contracts can be oral or written, and so as long as it can be shown that there was:

  • an agreement between two parties who had legal capacity;IMG_1776
  • the obligations about what each party would do were clearly defined and agreed upon; and
  • valuable consideration was given by one of the parties (which can be in the form of giving cash or undertaking an act in reliance of the promise of the other party);

then arguably the parties will have an enforceable agreement.  There is no legal requirement for parties to enter a formal written agreement for the purchase of a pet, but it is often a very good idea if:

  • a significant amount of money is going to be paid for the pet; and/or
  • the seller wishes to retain rights regarding the animal such as the ability to show or breed from the animal and to have the first right to re-purchase the animal if the buyer needs to re-home it; and/or
  • the buyer has been given warranties from the seller regarding the quality, health and freedom from particular genetic disorders.

Disputes regarding agreements for the purchase of pets will in Queensland be decided through the Queensland Civil and Administrative Tribunal if parties are unable to resolve the dispute directly.

 

4.   Insurance Law Involving Pets

Pet illness and injury can mean big expenses, and this makes pet insurance big business.

There is a very wide range of pet insurance available, and essentially this is a form of contract law.  The insurance company offers to reimburse the owner for some or all of particular costs associated with treating illness or injury of a pet on the basis that the owner pays a fee for the cover.   However, it is vitally important to read very carefully the terms and conditions of the insurance cover because most insurance policies have an extremely long list of:

  •  Animal illnesses and injuries that are not covered by the policy;
  • Pre-existing conditions that if your pet has will mean that the policy does not cover their treatment;
  • Requirements that owners of the animal must comply with regarding general care and maintenance of the pet, failing which the policy may not cover their treatment.

There are a number of websites that compare the benefits offered by different pet insurance policies, and asking questions is also very important.

 

5.     Body Corporate Laws involving Pets

Sol Pup 3 Where you have a block of units or apartments with separate titles issued for each unit or apartment then in Queensland there must be a body corporate that governs the management of the complex.  The body corporate must have rules that all the Lot owners have to comply with particularly regarding use of the Lots and common areas.  These body corporate rules very commonly contain the provision about how many pets Lot owners are allowed to have, the obligations Lot owners have regarding management of pets and matters to which the consent of the body corporate is required.

If you are purchasing a unit in a body corporate and you have a pet or wish to own a pet then it is highly recommended that you request a special condition be included to make the contract subject to the body corporate approving your requirements regarding the number and type of pets you wish to own.

Very commonly the Body Corporate rules place restrictions on the following issues unless consent of the Body Corporate is obtained:

  • Number of pets allowed;
  • Size and type of pets allowed; and
  • How pets are to be kept and managed (for example, some Body Corporates require that cats not be allowed to roam freely in the outside common areas).

 

6.     Wills, Enduring Powers of Attorney and Pets

 The responsibilities of caring for a pet can be onerous and expensive particularly as the petFiver gets older.  Most people just assume that if they die or become incapacitated mentally a family member will take care of any pets that are left.  However, as many animal rescue organisations can testify it is much more common that the pets are left to a rescue organization because the family may not have the space or financial means to take on the pet.

It is possible for people to include specific provisions in their Enduring Power of Attorney and Will regarding:

  • who they would like to be responsible for caring for pets in the event of mental incapacity or death;
  • allocating funds that can be used for pet care expenses;
  • allowing a person who is caring for pets to have use of property or resources of the incapacitated/deceased owner to assist with caring for pets; and
  • making donations or gifts to animal rescue organisations or charities.

If provisions regarding care of pets and use of funds for related expenses are not included in your Will or EPOA then arguably your attorneys or executors can be very limited in what resources of yours they are able to use for care of pets.

If you would like legal advice or assistance regarding any issues related to pets and pet ownership then please contact our Alicia Schubert on 3711 2709 or by email.

 

 

Pre-Contract Tips for Buyers

Useful Tips For Buyers – Houses and Units

Are you considering buying a house or unit?   Many people spend a lot of time researching where they would like to buy, but the actual process of entering a contract once you have found that perfect property can be confusing.  There can also be a lot of pressure to enter a contract quickly, so we have compiled some useful information and tips for buyers:

1.     Auction Purchases

If you buy a property at an auction it is vital that before you attend the auction you have:

  1. obtained a copy of all the relevant information regarding the property from the Agent;
  2. ideally undertaken any due diligence searches;
  3. undertaken a pest/building inspection on the property; and
  4. have your finance unconditionally approved.

This is because if you are the successful bidder at the auction then:

  • that contract of sale will not be subject to you being satisfied with the outcome of your application for finance approval;
  • the usual cooling off period provisions applicable to residential contracts do not apply; and
  • you will not be able to terminate the Contract if you are unhappy with the condition of the property.

 

2.     House and Unit Purchases for constructed dwellings

If an Agent is involved in the sale then the most common way that a contract is formed is that the Agent completes a contract in accordance with the terms of the offer the Buyer wishes to make and submits this to the Seller.  There may be some negotiations regarding contract terms and if both parties are satisfied then both parties will sign the Contract.

Tip #1:  Decide who will be the purchaser of the property

Before you start seriously looking for a property it is recommended that you obtain advice from your financial planner and/or accountant regarding whether it is best for you to purchase the property in your individual name, in the individual names of yourself and your partner (if you have a partner), in the name of a company or in the name of a trust.

Once a Contract is signed by both parties then it is not possible to change the name of the purchaser or remove a purchaser – agreement would need to be reached with the Seller to terminate the Contract and enter a new Contract, which can have costs and stamp duty implications.

Tip #2 – The deposit amount to be paid by the Buyer should generally always be less than 10% of the total purchase price.

If the deposit amount is 10% or greater of the purchase price then this can change the rights between the parties regarding ownership of the property before settlement and have stamp duty implications for the Buyer.

It is possible to include that a small initial deposit amount be paid upon signing the contract and a balance deposit amount be paid at a later stage such as when the Buyer’s finance condition is satisfied.

Tip #3-  If there are items that are not permanently fixed to the property that are to remain with the property after settlement then these should all be listed in the Contract as “Included Chattels”.

Common examples of items listed as Included Chattels are dishwashers, air conditioners, furniture, curtains, blinds, light fittings and pool equipment.  If a moveable item is not listed as an Included Chattel then the standard terms of the REIQ contract of sale allow the Seller to take all moveable items at settlement.

Tip #4  – Building and Pest Condition

It is always recommended that Buyers require the Contract to be subject to their being satisfied with the outcome of a building and pest inspection on the property;

Tip #5 – Finance Condition

Unless you actually have sufficient cash on hand to pay the full purchase price, stamp duty and other costs of sale at the time they sign the contract then it is always recommended that you require the Contract to be subject to obtaining satisfactory finance approval.

Also be aware that pre-approval of finance from a financier is not the same thing as unconditional finance approval.   Usually the financier has a right to refuse to approve the finance if not satisfied with the valuation of the property, which will only be undertaken after a Contract has been signed;

Tip #6 – Body Corporate Due Diligence Condition

It is always recommended for unit purchases to have a special condition included on the Contract making it subject to the Buyer being satisfied in their discretion with the results of searches conducted on the body corporate records;

Tip #7  – Risk

The standard terms of sale on the REIQ contracts for houses and units provide that the property being purchased is at the risk of the Buyer from 5pm on the Contract Date (which is the date the last party signs the Contract).  It is recommended to Buyers that a special condition be included in the Contract to provide that the property remains at the risk of the Seller until settlement has been effected (i.e. until the Buyers have actually paid for the property).  If no such special condition is included on the Contract then Buyers do need to obtain insurance for the property as soon as possible after the Contract has been signed by both parties.

Tip #8 – Improvements on the Property

If you are aware that a property has had improvements made to it such as extensions, addition of a deck, pergola or car port then unless the Seller can provide a copy of the relevant final approval certificate from the local Council that has jurisdiction then it is recommended that a special condition be included to make the Contract subject to the Seller providing a copy of that certification to you.

Tip #9 – Subject to Prior Sale

If you will be relying on the sale of a property you own to provide funds for the purchase of the new house or unit then it is extremely important that special conditions be included on the Contract so that you are able to terminate the Contract if your sale does not proceed for any reason and that the timing of the settlement of the purchase is such that cleared funds from the sale will be available for use in the purchase.

 

3.     Off The Plan Contracts for Houses and Units

  • These contracts normally are to purchase houses or units that are either not yet constructed or in the process of being constructed.  Very commonly at the time the buyer enters the Contract the plan for the land or unit Lot being purchased has not yet been finally approved by the relevant local Council and so technically the Lot being purchased doesn’t actually exist;
  • These contracts of sale normally contain many special terms and conditions, and the Seller often has up to eighteen months from the Contract Date to arrange for the plan of the Lot to be approved by the relevant local Council and registered with the Titles Office before the Buyer has a right to terminate the Contract;
  • It is extremely important if you are considering entering an off-the-plan contract that you obtain legal advice before executing the Contract so that you are aware of the effect of the terms and conditions.

 

Every purchase is unique, and it is recommended that if possible Buyers obtain some legal advice before committing to a contract of sale.  If potential mistakes on the Contract are avoided and appropriate special conditions included then this can save much time, money and stress for parties at later stages of the matter.

If you would like assistance with a purchase of real property or have further questions then please contact our Alicia Schubert on 3711 2709 or send us an email.

Property Settlement Basics

PROPERTY SETTLEMENT BASICS

There are a lot of common misunderstandings regarding property settlements, so here are some practical basics:

Divorce and Property Settlement

Married couples do not have to be divorced to formalise a property settlement agreement.  Whether or not a couple is divorced has no effect on a property settlement other than dictating whether there is a time limit running for the parties to apply to the Court for an order regarding property settlement and/or spousal maintenance orders.

Time Limits and Property Settlements

For married couples, either party can apply to the Court for property settlement and/or spousal maintenance orders any time up until 12 months after a Divorce Order has become absolute.  The Divorce Order becomes absolute four weeks after the hearing date when the Divorce Order is granted.

For de facto couples, either party can apply to the Court for property settlement and/or spousal maintenance orders any time up until 2 years after the parties have separated.

Formal Agreements

Financial

Parties can formalise their property settlement agreement by way of a written agreement called a Binding Financial Agreement or by Consent Orders.  Consent Orders are orders that are submitted or filed with the Court by the parties and the Court then considers the proposed orders and stamps them if satisfied that the orders provide for a property settlement that is fair and equitable according to the principles of the Family Law Act 1975 (Cth). 

Children

Parties are also able to formalise their agreement regarding care of children of the marriage by way of consent orders filed with an Application for Consent Orders with the Family or Federal Circuit Court of Australia.

Applications to the Court

If parties cannot reach agreement regarding property settlement and/or children’s issues then either can make application to the Federal Circuit Court of Australia or the Family Court of Australia for interim and final orders in relation to same.

Parties normally are required to complete the Pre-Action Procedures before an application can be made to Court for orders. This applies regardless of wether it is a property settlement or agreement regarding children or both.  The Pre-Action Procedures involve:

  • writing to the other party with an offer to discuss and hopefully resolve the property settlement and/or children’s issues and giving the other party at least fourteen days to respond; and
  • obtaining a certificate from either a court-approved mediator to state that at least one of the parties has  attempted to mediate the dispute; or
  •  obtaining a certificate from the Registrar of the Court waiving the necessity for the parties to attend a mediation. This waiver may be given if a party can supply evidence that it is not appropriate for a mediation to be held for some valid reason, for example that there has been violence between the parties or one party cannot be located.

Exception to Pre-Action Procedures

If there is an urgent need for orders to be made (for example because a party is about to sell property that forms part of the joint property pool without the consent of the other party) then the pre-action procedures may not have to be complied with.

Full Financial Disclosure

Both parties are required by the Family Law Rules to make full financial disclosure of their assets, liabilities, income and expenses.

If you do not obtain this full financial disclosure then it will not be possible to assess whether the property settlement agreement represents a fair and equitable settlement for you because the value of the matrimonial asset pool has not been proven and therefore it is impossible to know whether the portion of the joint asset pool that you are retaining is within a range that a Court might award you.

Other possible consequences of not obtaining full financial disclosure include:

  • You may not be aware of all assets and liabilities that actually are included in the property pool;
  • There may be liabilities you are responsible for that you were unaware of; and
  • The formalised agreement may not deal with responsibility for all assets and liabilities, so for example it may be discovered at a later point that a party is still liable pursuant to a personal guarantee for a loan regarding property or a business that belonged or now belongs solely to the other party.

Best Course of Action

If you are separated or are considering you might separate from your partner then it is strongly recommended that you obtain legal advice regarding:

  • your options;
  • steps that can be taken to protect your interests; and
  • strategies to facilitate reaching a fair and equitable agreement.

Getting advice early will assist you to take necessary steps quickly, and this will generally assist to get realistic negotiations happening and to reach a resolution regarding a property settlement agreement.

If you would like further information and/or assistance then please contact our experienced solicitor Alicia Schubert for an appointment on 3711 2709.

 

Personal Properties Securities Act – Why Should I Care?

 

Have you bought or sold a car or are you considering doing so? 

Do you operate a company that has given a charge against company assets to a creditor? 

Did you have a hire purchase or lease agreement for a vehicle, plant or equipment prior to 2012? 

Are you currently leasing a vehicle, plant or equipment to or from another party? 

Do you rent a property that has fixtures in it that belong to the landlord?

Have you lent or borrowed money for the purpose of buying personal property?

If the answer is yes to any of these questions then it may be vital for protection of your interests to undertake a search of the PPSR and register a security interest.

 

What is the PPSA and PPSR?

The Personal Property Securities Act (PPSA) came into force in 2012 and deals with all forms of personal property securities.  The PPSA creates one register upon which personal properties securities can be listed.  This register is called the Personal Property Security Register (PPSR).   The PPSA incorporates 78 pieces of legislation that had dealt with personal property securities and a variety of different registers including the ASIC register for company charges, REVS register for charges on vehicles and the Office of Fair Trading register for Bills of Sale – 23 registers in total are combined into the PPSR.  It follows models adopted in USA and New Zealand.

The PPSA applies to all security interests created after the Act came into force.  Registered security interests that existed before PPSA were migrated from the register where they had been held (for example, registered charges against companies on the ASIC register) onto the PPSR.

Section 10 of the PPSA states that “personal property” covered by the Act is all property other than land or a right, entitlement or authority that is granted by a Federal or State law and declared not to be personal property.  This means that practically every type of property apart from real estate is defined as “personal property” and is covered by the PPSA.   If more than one party has a legal interest in the same item of personal property then it may be necessary for at least one party to register their interest on the PPSA or in the case of an item of personal property being sold to release a registered interest.

Have you loaned money to purchase personal property or provided personal property on the basis that you will be paid the value of the item over time?  If yes,  then if you do not register a security interest in that personal property on the PPSR you may have difficulty in proving your legal interest in the personal property and may lose the right to either seize the personal property or have first priority to proceeds of sale from the personal property if the borrower defaults on your agreement and/or becomes insolvent.

Are you buying personal property of any kind particularly if it is of some value (for example, a second hand car or boat)?  If yes, then it is essential that you undertake a search of the PPSR to check if any party has a security interest in the personal property you are buying.  If a party does have a security interest in the personal property then you need to ensure that the Seller arranges for the security interest to be released at or before the time that the personal property is transferred to you.  If you do not undertake a search of the PPSR on the personal property you are buying within required timeframes and there is a registered security interest that is not released at the time the personal property is transferred to you then it is possible that the secured party may be able to seize that property back from you and you will be left to try to recover your money from the seller.

Are you selling personal property of any kind?  If yes then it is vital that you undertake a search of the PPSR to ensure you are aware of any registered security interest, disclose the registered interest to the purchaser to avoid the possibility of being in breach of the sale contract and ensure that the party holding the security interest does release its interest at or before the time you receive payment from the purchaser so that you have no ongoing liability either to the holder of the security interest or the purchaser.

 

A final important point to note is that when the PPSR legislation came in force in early 2012, the Act gave a period of two years for parties who held security interests in personal property prior to the Act coming into force to register those interests on the PPSR.  That two year period ends on 14th January 2014.  During the two year transition period any unregistered security interests that existed prior to January 2012 will be considered to have the same status as a registered security interest, but as at 14th January 2014 if the security interest is unregistered then it will be deemed “unperfected” and will not have priority over a security interest regarding the same item of personal property that is registered on the PPSR.  If you currently have any formal or informal loan agreement, retention of title agreement, lease agreement or other interest in relation to personal property then it is extremely important that you obtain legal advice as soon as possible about whether you need to register a security interest in relation to that personal property.

If you would like further advice or assistance to establish if you do need to register a security interest on the PPSR or if you are considering purchasing an item of personal property then please contact our Alicia Schubert.

Separating? Get the facts early!

When a relationship ends many people put off obtaining formal legal advice about property settlement and children’s issues because:

  • it seems too overwhelming in the midst of the uncertainty, stress and trauma of the relationship break-up;
  • they are concerned about how much they might pay in legal fees;
  •  there can be a perception that going to a lawyer to get legal advice and assistance signifies that things are “getting nasty” and may cause their ex-partner to become angry and uncooperative (or angrier and more uncooperative).

In fact obtaining legal advice about your options, legal rights and obligations as early as possible is very important  in assisting to reduce costs and generally helping parties reach a quicker resolution.  How?

  1. You Don’t Waste Time on Myths                                                                                                       Having accurate information regarding your options, legal rights and obligations allows you to avoid wasting time  on arguments and negotiations based on incorrect assumptions about the law and entitlements. Common misunderstandings include:
    • the assumption that each party to a marriage is automatically entitled to a fifty/fifty division of the matrimonial property pool;
    • that children who are over twelve years old can decide which parent they wish to live with; and
    • that each parent is automatically entitled to have the children of the relationship living with them in an equal shared care arrangement.

2. Know the Process

  •  Having a clear idea of the legal steps that need to be taken to formalise your agreement or to have matters decided by a Court means you can take the appropriate steps to progress your matter to formal dispute resolution such as a mediation or to having a court decision;
  • You won’t spend months in fruitless discussion before realising that there were dispute resolution services you could have accessed and that there is a process you must follow to progress resolution of a family law matter through the Court system.

3. Protect Yourself Early and Save Trouble Later                                                                  

  • You will be advised of steps you might need to take to protect your own personal and financial interests;
  • You can take steps to ensure that assets that fall into the joint property pool are not sold off or spent by the other party without your agreement;
  • You will be advised whether it is necessary to change your Will and Enduring Power of Attorney and beneficiary nominations on superannuation and life insurances.

4. Reality Test

  • Obtaining legal advice about your rights and obligations regarding family law matters often provides a very useful objective reality test for your own perceptions and expectations as well as those of your ex-partner.  This helps you to have realistic negotiations and know when discussions are just not progressing matters.

Having accurate information about your legal rights and obligations puts you in a strong position to have proper negotiations with your ex-partner and to make informed decisions about proposed agreements regarding property settlement and children’s matters.

Contact our experienced solicitor Alicia Schubert if you would like more information regarding family law property settlement and/or children’s issues matters.

Death, Incapacity and What You Can Control about the Uncontrollable

The new financial year and inevitable pedantic drudgery of having to gather all your financial information together to complete a tax return often also serves as an uncomfortable reminder of other personal estate planning tasks that have not been attended to at all or have not been reviewed for far too long.

What in particular are we referring to? Wills and Enduring Powers of Attorney!
Does the mere mention of a Will and EPOA have you feeling like a dog that has found itself trapped in a visit to the vet, or alternatively like you have the world’s most boring assignment that you have to do but are trying to avoid??
Many people do not seriously consider doing a Will or Enduring Power of Attorney unless they actually sense the spectre of:
 a. actual possible death or incapacity; or
b. evil fractious greedy people/ ex-partner claiming their estate.
The above approach is problematic because firstly people may be left with no arrangements in place to manage their affairs and provide for family if an unexpected sudden event leaves them incapacitated or dead, and secondly because it is often stressful and difficult to make decisions regarding the terms of your Will and Enduring Power of Attorney when the situation is urgent because of serious illness, impending travel, or panic that your financial assets will be feasted upon by people you essentially regard as white-anting parasites.
People often avoid doing Wills and Enduring Powers of Attorney because it is uncomfortable and confronting to think about death or serious injury/incapacity happening to themselves or their loved ones.
In actual fact, Wills and Enduring Powers of Attorney are about empowering you to determine:
  1. who will be able to deal with your assets and liabilities in the event that you can’t;
  2. who will benefit from your assets and liabilities; and
  3. how your assets and liabilities must be managed and used.
Wills and Enduring Powers of Attorney are about exercising freedom of choice and the ability to determine how your assets and income can be used. They are as important as arranging sufficient insurance cover for yourself and your family – how useful is the insurance payout if you have no control over who will eventually benefit from the proceeds and how they can be used?
If you don’t have a Will and Enduring Power of Attorney then this is the situation you and your family could face.
A well planned Will and Enduring Power of Attorney are vital pieces of armoury for the lives of you and your family – if you have not got a Will or EPOA or have not reviewed your Will or EPOA for a few years then make the time now to get these jobs sorted.
An experienced solicitor will be able to advise you on the many options available regarding how to set up your Will and EPOA to best achieve your aims and reduce the risks of claims against your estate, and we generally find that most Wills and EPOAS can be drafted and finalised over a maximum to two appointments. Also, the professional fees for our firm and most other firms to draft Wills and EPOAS are fixed fee so not only will getting these planning tools sorted NOT take a great amount of your time but also they are affordable.
Contact us today to find out more about the best options for your Will and EPOA and protecting your family today.