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Tips for Property Sellers

By Remy Forster

The most stressful part of selling a property is generally considered to be the steps taken prior to a contract being signed – constant open homes, receiving (and rejecting) unreasonable offers, staging a house and negotiating with tenants are all common aggravations. Unfortunately the work of selling a property doesn’t stop there, and it is usual for a step or two to be missed in the process of preparing for a property settlement once the stress of finding a Buyer has been alleviated. Below we outline the major items to prepare for as a Seller to help you get your property settlement completed on time.

 

1. Make sure you can sell the property.

Not all Sellers are disposing of property that they legally own. If you are selling a property on behalf of someone else, or if you will be acting on their behalf for a part of the conveyance due to their absence, it is vital that you have the correct documentation in place for the settlement to be completed. For example:

  1. If you have changed your name since you purchased the property, you will need to be able to provide evidence that you are the same person (for example a marriage certificate or change of name certificate),
  2. If you are assisting a partner or spouse in selling a property, your legal representative should not be able to accept your instructions on their behalf without a signed authority (such as a Power of Attorney),
  3. If you are selling the property on behalf of a family member, partner or spouse and you intend to execute all associated documentation on their behalf, you will need a registered Power of Attorney (for further guidance on this, see our blog on registering a Power of Attorney[1]), or
  4. If you are selling the property on behalf of a deceased estate, you will need evidence that the estate is being administered and/or has been registered. The title to the property will also need to be transferred out of the name of the deceased and into the name of the personal representative before settlement documentation can be executed.

If you are unsure as to whether you have sufficient documentation, or if you have the legal ability to sell a property, we would recommend that you contact your legal representative prior to executing any sale contracts.

 

2. Release your property debts.

In order to sell your property, you will need to be able to release any debts held over the property title. Most sellers will only have a mortgage over the property title, and having this debt released requires you to contact the financial institution which holds the mortgage (for further guidance on this, see our blog on tips for discharging a mortgage[2]). However, if you have any other debts over the property, such as a writ or caveat, you will also need to contact the parties who hold these debts to arrange the debts to be released. If you have a debt over the property to a less formal party (for example, a mortgage over the property which has been lodged by a family member), you will still need to contact that party for them to arrange releasing their debt over the property.

 

3. Obtain a Capital Gains Clearance Certificate

Due to recent legislative changes, certain property settlements require the Sellers to provide evidence from the Government that the Buyers are not required to withhold a portion of the purchase price. This evidence is provided by the Government in the form of a “Capital Gains Clearance Certificate” upon application by the Seller. We recommend that all Sellers verify if their property falls within the requirements for this Certificate to be provided (for further guidance on this, see our blog on Capital Gains Clearance Certificates[3]) and apply for the Certificate once their property is listed for sale. Certificates are valid for twelve months when issued, and a new application can be submitted if the Certificate expires prior to the property settlement occurring (applications can be made online[4]).

 

4. Have your identity documents ready

It is a requirement in Queensland for all legal representatives to verify the identity of their clients in conveyancing transactions. For sales this is especially important to ensure someone is not fraudulently selling a property they do not own, or do not have right to. This requirement means your legal representative should ask for a certified copy of 100 points of identity documentation, or for you to complete a Verification of Identity with a verification provider (for example, Australia Post). The most common documents which you can use to verify your identity are your current Australian passport, current Australian Driver’s license and any change of name or marriage certificates which show your name has changed since your passport and/or driver’s license were issued (if you don’t have these documents available, please see Schedule 8 of the Participation Rules which list a table of the possible documents you can provide[5]). If you cannot provide sufficient documents to prove your identity, your legal representative may not be able to act on your behalf in the transaction.

 

5. Check if you will be available during the transaction.

In the mysterious ways of the universe, it is common for the perfect Buyer for your property to come along when you already have a trip or other adventures planned. It is always important when signing a contract that you make sure you will be available for at least a portion of the transaction, and that you advise your legal representative if you will not be available for the entire time. During a conveyancing transaction there will be additional documents for you to sign as the transaction progresses, and most likely instances where your legal representative will need to contact you for your instructions. If you are unable to complete these steps, it will make it difficult for your settlement to be completed on time.

 

6. Disclose, disclose, disclose.

Standard conveyancing transactions require Sellers to disclose certain information about the property to any potential Buyers, and these disclosures need to be reflected on the Contract the parties sign. For example, a Seller is required to disclose to the Buyer:

  1. If they have conducted work on the property under an Owner Builder License,[6]
  2. If there are any work notices issued by the local council for the property[7],
  3. If there are any tree disputes registered with QCAT that involve the property[8], or
  4. If there are any defects or circumstances relating to the Body Corporate which would materially prejudice a Buyer.[9]

If the Seller does not disclose this information, the Buyers may be able to either terminate the Contract or pursue the Seller for costs. We recommend that Sellers gather any information about the property that they have in preparation to disclose this information to the Buyers.

 

7. Gather your settlement documents

If you’re selling a residential home, you may not have any documents to gather or collect. Below is a list of documents which affect some property sales and we recommend that you peruse to see if they apply:

  1. Certificate of Title – some Sellers have an original Certificate of Title for their property. These Certificates were only originally issued prior to the 1990’s, and since then have only been issued upon request by the party who owns the property. You can check if you have a Certificate of Title by viewing a copy of a Title Search for your property (which your real estate agent should have ordered as part of preparing the contract of sale).
  2. Tenancy documents – if the property has tenants and you have copies of rental agreements, rental ledgers or bond forms, you will need to provide these to your legal representative prior to settlement. If you have a property manager, they may hold these documents for you.
  3. Building finals – if you have conducted any work on the property since you purchased it, you may have copies of final inspection certificates for this building work. It is not a legal requirement in Queensland for you to provide these to the Buyer (unless there is a special condition in your contract requiring this), but having these on hand can smooth over issues which arise during the conveyancing process.
  4. Rates, water and body corporate notices – the Buyers are supposed to conduct searches on these accounts during the conveyancing process, however if they do not, having copies of these notices will assist your legal representative in preparing for settlement.

Finally, you will need to make sure you have collected all keys, remotes and access cards that you hold for the property for these to be handed to the Buyer following settlement.

If you have any queries about the conveyancing process, or generally about what to do when selling a property, please contact our Conveyancing team.

For the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

 

[1] https://justuslaw.com/powers-attorney-implications-registration/

[2] https://justuslaw.com/discharging-a-mortgage-tips-advice/

[3] https://justuslaw.com/youre-selling-750k-consider-frcgw-tax/

[4] https://www.ato.gov.au/Forms/Capital-gains-withholding-clearance-certificate-application-online-form-and-instructions—for-Australian-residents/

[5] https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0004/307129/participation-rules-electronic-conveyancing-v3.pdf

[6] http://www.qbcc.qld.gov.au/buying-existing-home/buying-or-selling-owner-built-property

[7] https://www.brisbane.qld.gov.au/planning-building/applying-post-approval/after-approval/post-approval-operational-works/unauthorised-work

[8] http://www.qcat.qld.gov.au/matter-types/tree-disputes

[9] S223 https://www.legislation.qld.gov.au/view/pdf/2017-07-03/act-1997-028


Know your Devil

By Natalie Smyth

Like so much with the law, the devil is usually in the detail, and what might seem a good idea at the time may have consequences from left field.  It is no different with conveyancing contracts for the sale of residential property in Brisbane.

Take the example of Tara.  Tara made her living as a medium sized property developer in Brisbane.  She purchased land and developed one or two apartment blocks per year with an average of 10 to 15 units each. When the market was good, Tara had no trouble selling her apartments. She was very proud of her finishes and the quality of her fittings. “They sell themselves really”, she told me.

But recently things have been different. There has been a glut of good product on the market and prices were falling.

Tara was sick and tired of Buyers putting down a small deposit and walking away when they found an apartment which was cheaper. It was unfair she thought, after all the planning and work she put in for Buyers, to be able to walk away like that with very little consequence.  She decided to do something about it.

Tara told her agent that she would now require Buyers to put down a deposit of thirty percent and the contract of sale must now specify that the deposit was non-refundable.  Her agent told her she may lose some prospects but Tara said she didn’t care, “If they are not prepared to do that, they are not serious anyway”,  she replied.

For a while everything worked well. She was attracting Buyers who were fair dinkum. But then one Buyer, having paid the 30 percent deposit refused to pay the balance. Tara was very patient and gave the Buyer every opportunity to come up with the balance of the purchase price but the Buyer just refused to pay.

“Oh well, so be it, the deposit is non-refundable, I will just take that and find another Buyer….the deposit will compensate me for the extra interest I have had to pay, while the Buyer has been dithering around”, she thought.

However, when Tara came to sign the transfer documents for the new Buyer she found that the previous Buyer had placed a caveat on the property preventing the sale.  If that was not bad enough, the previous Buyer had now engaged a solicitor who had written to her bank demanding that the mortgage be removed from the property and the Bank was listening, they wanted Tara to pay back the mortgage. Tara needed to mortgage her apartment blocks to finance the construction, she simply didn’t have the funds to pay for everything upfront.

The previous Buyers solicitor claimed that the contract of sale, even though it was in the standard REIQ form, was an Instalment Contract and the deposit wasn’t really a deposit at all but part payment of the purchase price which gave the previous buyer an interest in the apartment. A ‘non-refundable’ deposit can make a contract an Instalment Contract with unintended consequences.

What is an Instalment Contract?

In most land contracts in Queensland, the Buyer will pay a deposit that is held by the ‘stakeholder’ (usually the agent or Seller’s lawyer) until settlement. On settlement, the Buyer will then pay the balance of the purchase price, in exchange for the Seller providing them with clear legal title to the property.

An Instalment Contract, as the name suggests, has the Buyer make payment of the purchase price by a number of instalments. It is sometimes called a vendor finance arrangement. Usually, these instalments will be non-refundable.

Most importantly, Instalment Contracts change the legal relationship between the Buyer and Seller, and provide more protection to Buyers than under a standard REIQ contract.

Can a non-refundable deposit make a contract an Instalment Contract?

Section 71 of the Property Law Act 1974 (Qld) defines an Instalment Contract as one in which the Buyer must make a payment, other than a deposit, without becoming entitled to a transfer of the land.

A deposit is defined in the Property Law Act to be an amount that:

  • does not exceed 10% of the purchase price (for existing lots), or 20% of the purchase price (or proposed/off the plan lots); and
  • is paid or payable in one or more instalments; and
  • is liable to be forfeited to the Seller in the event of default by a Buyer.

Where a deposit is truly non-refundable, it is not ‘liable to be forfeited’. The Buyer is deemed to have already paid to the Seller part of the purchase price. Even though, the contract itself specified that the amount was a deposit, it does not overrule what is provided in the Property Law Act.

What are the consequences of an Instalment Contract?

Instalment Contracts provide more protection to Buyers than a standard REIQ contract. In summary, where a contract is deemed to be an Instalment Contract because of a non-refundable deposit these protections are:

  • Restriction on Termination by Seller on default of the Buyer

Under a standard contract, a Seller can terminate the contract and forfeit the deposit if the Buyer breaches it in a material way. However, section 72 of the Property Law Act requires a Seller under an Instalment Contract to provide a Buyer with 30 days’ notice to remedy this failure to pay, before the Seller is able to terminate the contract or take any other action. This means that time is not of the essence in relation to the payment of monies. The settlement date may be extended by up to 30 days by the Buyer without a Seller’s consent.

  • Property cannot be Mortgaged under an Instalment Contract

Under a standard REIQ contract, there is no prohibition against mortgaging the property after the contract is formed, provided that the mortgage is removed from title at or before settlement. However, Section 73 of the Property Law Act provides that under an Instalment Contract, a Seller must not mortgage the property without the consent of the Buyer.  However, you can insert a Special Condition into the contract that provides the Buyer’s consent to the registration of a mortgage.

  • Registration of Caveat by Buyer under an Instalment Contract

Section 74 of the Property Law Act provides that a Buyer under an Instalment Contract has an express right to lodge a caveat over the Land.

When we told Tara that she would have to pay the previous Buyer out she was very upset. But when we told her that, as the price for removing the caveat, she would also have accede to the demand of the previous Buyer’s Solicitor to pay a share of the profit from the sale as well as his legal costs, she was furious.

“The Previous Buyer is an absolute devil. I have been taught a very expensive lesson. I should have made sure of the details before getting the agent to change the contract and then I wouldn’t be in this mess,” Tara complained.

The creation of an Instalment Contract can severely impact a Seller’s right to terminate a contract, if a Buyer defaults. It is important to get legal advice before you enter into any contract, including Instalment Contracts.

What can I do to avoid an Instalment Contract?

As a general rule, special conditions should not express or imply that the deposit is ‘non-refundable’, and the Seller should be under an obligation to refund the ‘deposit’ if the contract is terminated because of the Seller’s default. However, don’t try this at home. You should always obtain legal advice before including conditions that allow for release of the deposit.

Just Us Lawyers – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today


Cyber scams and Conveyancing

By Remy Forster

Recent news of scammers hacking into the software system of PEXA to divert funds from a MasterChef star have made gripping headlines, see Dani Venn: MasterChef star hacked out of $250,000.00. Cyber scams are not a new development – after all, it would be difficult to find a member of Generation Y who hasn’t heard of Nigerian princes. What has emerged over the past few years is a worrying trend of cyber scams targeting the legal arena, and specifically targeting conveyancing transactions. So far 2018 has included numerous incidents of cyber scams affecting conveyancing transactions, including Buyers transferring deposits to incorrect accounts and sale proceeds being deposited into incorrect accounts.

It is an obvious trend that cyber scams which affect law firms and their clients would most often be associated with conveyancing transactions. Conveyancing transactions are easy targets mostly due to:

  1. They comprise the most common legal transactions,
  2. They involve large sums of funds being transferred to multiple parties,
  3. A majority of the communication in the transactions are via email, with little telephone communication or face-to-face contact, and
  4. Online programs for the transactions being relatively new and still in the process of being established.

Fraudsters are now taking advantage of these risks to try to defraud clients in conveyancing transactions through a variety of methods.

The first method used by hackers is to intercept deposit payments made by Buyers to real estate agents. Hackers attempt this by accessing a real estate agent’s emails, waiting until the agent has sent their account details to a potential Buyer, and then sending a “follow up” email to the Buyer advising the original account details were incorrect and supplying alternate account details. The Buyer then transfers the deposit funds to the alternate account, not being aware that they have sent their deposit funds to the fraudster instead of the real estate agent. Cases of this fraud have emerged steadily over the past twelve months [1] and will no doubt continue to rise.

A second method is to intercept settlement payments made by Buyers to their legal representatives. Hackers use the same method described above, but instead access the legal representative’s emails and contact clients following the legal representative requesting their client transfer them funds for their property settlement. Incidents of clients losing funds to these instances of fraud have also increased over the past 12 months [2].

Finally, the third method is to intercept the disbursement of funds from a property settlement. This method is more sophisticated, and generally requires the property settlement to be settled using an online system such as PEXA. Hackers access the legal representative’s emails, use their emails to set up a new user on the representative’s PEXA system, change the entered account details for a PEXA transaction from the Sellers’ account details to the hacker’s account details, and hope that the legal representative doesn’t notice the change in account details prior to the transaction settling [3]. Instances of this type of fraud are becoming more prominent as use of the PEXA system increases.

All three methods rely on some form of access to the emails of the real estate agent or the legal representative, and that the parties involved in the conveyancing transaction won’t verify the information they have received through a secondary method. Law firms do have a responsibility to alleviate as much of the risks with conveyancing transactions as possible by implementing the following: [4]

  1. Requiring staff to delete emails from any suspicious email addresses without opening,
  2. Requiring staff to use secure passwords, and to change these passwords regularly,
  3. Ensuring accounts for any inactive staff are deleted, and monitoring established accounts to ensure no unauthorized accounts have been set up,
  4. Requesting that any potential clients contact the office via telephone before being engaged for legal services,
  5. Warning clients of potential fraud risks, and requesting that clients telephone their office if they receive a request by email to transfer funds,
  6. Where possible, encouraging clients to hand over funds as cheques in place of EFTs,
  7. Requesting clients provide their account details on physical documents instead of emailing account details, and
  8. For PEXA settlements, requiring staff to not enter in client account details in advance of the settlement and to triple check the entered account details match their client’s details before signing off on the property settlement.

Unfortunately, as outlined in the above items, there is also a partial responsibility on clients in conveyancing transactions to remain vigilant throughout their transaction for potential fraud. This by no means implies that clients are entirely to blame if they are the victim of a fraudulent action, and in some cases (such as PEXA fraud), clients have limited or no actions they can complete to prevent these actions. However, for instances of fraud to decrease, all parties involved in conveyancing transactions should complete the transaction with no presumptions and with secondary verification of crucial information.

PEXA settlements are not mandatory in Queensland, and if you are concerned about your transaction proceeding via PEXA we recommend you contact your legal representative no later than 10 business days prior to settlement to request that your settlement proceed via the traditional paper settlement method. Just Us Lawyers are registered for PEXA settlements, but still conduct a majority of their conveyancing transactions using the traditional paper settlement method. For more information on how PEXA settlements work, see PEXA’s website[5] and our previous blogs about our experiences settling through the PEXA system[6]

For the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

[1] https://www.smartcompany.com.au/industries/property/consumer-affairs-victoria-warns-real-estate-agencies-and-buyers-over-new-email-scam/

[2] http://www.abc.net.au/news/2017-10-25/scam-targets-conveyancing-clients-in-sa/9086172 and http://www.abc.net.au/news/2017-09-19/elderly-woman-loses-more-than-half-a-million-in-property-scam/8959218

[3] https://www.propertyobserver.com.au/forward-planning/advice-and-hot-topics/85862-pexa-warning-as-conveyancing-fraud-funds-end-up-in-thailand.html

[4] http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Cyber_security

[5] https://www.pexa.com.au/buyers-sellers

[6] https://justuslaw.com/advent-e-conveyancing/ and https://justuslaw.com/e-conveyancing-reality-follow/


Be on time! Or suffer the consequences

Unlike other Jurisdictions, such as New South Wales, those familiar with conveyancing understand that in Brisbane residential property contracts “time is of the essence”.

But what does that actually mean?  

This was considered by the Queensland Supreme Court of Appeal in the matter of Caprice Property Holdings Pty Ltd v McLeay.

The contract involved an expensive Gold Coast property. The contract was due and the parties had nominated 3pm as the time for settlement. The Buyer’s solicitors arrived and were informed that the release of mortgage would not be available for another 15 minutes. The Buyer declined to wait any more than five minutes and left. The Seller’s solicitor contacted the Buyer’s solicitors shortly thereafter and requested that the Buyer return stating that the Sellers had reserved their rights to settle any time up to 5pm. The Buyer’s solicitor did not agree to re-attend settlement nor did the Buyer attempt to make any other arrangements for settlement.

The Seller’s solicitor then sent a fax to the Buyer’s solicitor at 4.36pm holding the Buyer in breach of the contract as it had not effected settlement by 5pm. This fax was sent prematurely, in that it was not 5pm, and the Buyer was not yet in breach of the contract. The Buyers argued that this facsimile was intimidation because it was sent before 5.00pm, and they were, as a result, excused from having to settle.

The court disagreed with the Buyers. The court held that rather the Buyer’s refusal to return on the settlement date excused the Sellers from performing their obligations under the contract and the Buyer was in breach of the contract in failing to settle because time was of the essence.  As a consequence, the Sellers were fully entitled to terminate the contract after 5.00pm for the Buyer’s failure to comply with the contract.

The lesson to be learnt by the parties to residential conveyancing contracts is that it is always important to look at the terms of the contract before taking rash action – no matter how inconvenient the practices of the other party may be. Most standard contracts for the sale of residential property in Queensland provide that settlement must take place up to 5.00pm on the settlement day. Failure to make yourself available will entitle the other party to avoid the consequences of the contract, even if the failure is caused by the bank’s inability to get it’s act together.

If you are the Buyer, who is at fault, as a minimum you will forfeit your deposit. If you are the Seller, the Buyer can terminate without loss of the deposit and the agent will probably still be able to claim his commission from you.

It is essential that you be ready, willing and able to complete the sale at the time set out in the contract because in Queensland, as the term says, time really is of the essence!

For further information on conveyancing and how we can assist in pre-contract advice please contact our Conveyancing Team based at our Wilston office.  

For the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today


When “sufficient to complete” is simply not enough

By Natalie Smyth

Purchasers entering into a Contract for the purchase of residential or commercial property in Queensland may require the Contract to be subject to obtaining satisfactory finance. Such a provision is often an important and essential term of the Contract entitling a purchaser to terminate the Contract in the event that satisfactory finance is not obtained.

In circumstances where the finance condition is vague or uncertain as to be meaningless, it can render the clause unenforceable and purchasers may find themselves in a situation where they are legally bound to complete the Contract in the absence of obtaining finance.

In the Fourteenth Edition of the REIQ Contract for the sale of Houses and Residential Land, in order for the Contract to be subject to the finance condition, all of the “finance amount” “financier” and “finance date” sections in the reference schedule must be completed. It is common practise for real estate agents in Queensland to complete the reference schedule of the Contract, and we often seen the phrase “sufficient to complete” next to the “finance amount” heading, as opposed to an exact dollar figure.

Failure to insert an exact dollar figure could be problematic in circumstances where a purchaser also requires finance to cover:-

  1. any potential transfer duty imposed on the transfer of property;
  2. title registration fees; and
  3. legal fees.

It could be argued that a purchaser who obtains finance for the balance purchase price has obtained an amount that is “sufficient to complete” the purchase. The fact that a purchaser, who requires finance to pay a stamp duty liability or legal fees, has only been able to secure finance for the balance purchase price, may find themselves unable to rely on the finance condition, as technically, those liabilities are extraneous to completion of the Contract.

What is the Court’s view?

In the High Court case of Meehan V Jones & Ors (1982), a purchaser sought specific performance of a contract of sale expressed to be executed subject to “the Purchaser or his nominee receiving approval for finance on satisfactory terms and conditions in an amount sufficient to complete the purchase.”

Facts of Meehan v Jones

The purchaser had obtained finance and had notified the Seller of his intention to proceed with the Contract, however, in the interim the Seller had found another purchaser and did not wish to proceed with the first Contract. Accordingly, the Seller sought to resist the claim for specific performance on the grounds that:-

  1. the finance clause was uncertain and therefore rendered the contract void; and
  2. That the clause, if certain, reserved to the purchaser a discretion or option to elect to carry out the contract, which rendered the contract illusory.

The Court’s decision

The High Court recognised that the finance clause in the Contract was potentially ambiguous in the sense that it failed to define the extent of the purchaser’s obligations with respect to the search for finance and the criteria to be used in the determination of whether such finance was in fact satisfactory, however, ultimately decided that the purchaser was entitled to specific performance of the Contract.

The Court held that the contract was not void for uncertainty because:

  1. “The courts should be astute to adopt a construction which would preserve the validity of the contract” (per Mason and Wilson JJ); and
  2. “It was only if the court was unable to put any definite meaning on the contract that it could be said to be uncertain” (per Gibbs CJ and Murphy J).

The Court was unanimous in holding that “subject to finance” clauses will not generally result in a contract for sale being held void for uncertainty, and the fact that a clause might contain some ambiguity will not preclude a court from ascertaining the intention of the parties with respect to the clause in question.

Further in the case of Clarke v Relstar Pty Ltd (1982), a contract expressed to be subject to the purchaser’s obtaining finance by a given date on terms wholly satisfactory to the purchaser to enable him to complete the transaction was held to be not void for uncertainty.

In the case of York Air Conditioning and Refrigeration (Australasia) Pty Ltd v The Commonwealth , Williams J commented, “If the court comes to the conclusion that parties intended to make a contract, it will if possible give effect to their intention no matter what difficulties of construction arise.”

Does this also apply to commercial contracts?  

Note 7 of the REIQ Contract for the purchase of commercial land and buildings provides: “the dollar amount of the loan being sought must be inserted in item U. Do not insert the words ‘sufficient to complete this purchase ‘or words of a similar effect.”  We understand the reason for this notation, is to avoid the situation described above, whereby a purchase may require an amount of finance that is above that required to complete the Contract.

As far as we are aware there is yet to be decision of  a court determinative of this issue..

Conclusion:-

  1. The courts will attempt to give proper effect to commercial transactions;
  2. If the courts can ascertain the intention of the parties with respect to the clause, and deduce a meaning from the clause, it will likely not be void for uncertainty;
  3. “subject to finance” clauses will not generally result in a contract for sale being held void for uncertainty; and
  4. the fact that a clause might contain some ambiguity will not preclude a court from ascertaining the intention of the parties with respect to the clause in question.

Despite Chief Justice Gibbs’ comment in Meehan v Jones with respect to “subject to finance” clauses, that their “natural effect is to leave it to the purchaser to determine whether or not the available finance is suitable to his needs,” in circumstances where a purchaser obtains finance for the balance purchase price, but requires a finance amount that is above that required to complete the contract (i.e for a stamp duty liability), in the absence of obtaining additional finance, the purchaser may still be bound to complete the Contract.  Accordingly, the phrase “sufficient to complete” is potentially ambiguous, and we therefore recommend that purchasers insert a specific dollar amount  (or a figure expressed as a percentage of the purchase price) next to the “finance amount” heading in the reference schedule that includes not only the balance purchase price, but also stamp duty costs, legal and title registration fees.

We recommend that you seek pre-contract advice from our team at Just Us Lawyers prior to signing any Contract for the Sale and Purchase of residential or commercial property in Queensland.

Just Us Lawyers – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today


Finance Clauses, a way out or a way in to a legal minefield

By Natalie Smyth

Buyers of property often rely on Finance clauses to give them a way out of a contract to purchase a house they really can’t afford. But for the unwary they can be nothing more than a legal minefield entangling the parties in protracted litigation.

 A recent decision in the District Court of Queensland considered, inter alia, whether a conveyancing contract for the purchase of residential property in Queensland was subject to finance, and whether the Buyer could rely on the finance condition to terminate the Contract.

Whilst the decision was inconclusive (as the matter is still ongoing), it serves as good reminder for purchasers of residential property to obtain independent legal advice prior to entering into a Contract for sale.

Relevant Facts of Mewing v Duncan [2018] QDC 52

  • The parties entered into an REIQ Contract for the sale of a particular residential property on 20 November 2016.
  • On the third page of the schedule to the Contract in the finance section of the reference schedule after the heading “finance amount” were the words “Sufficient to complete”, and after the heading “financer” were the words “Buyer’s choice.”
  • There was no date inserted after the heading “finance date.”

The Fourteenth Edition of the REIQ Contract for the sale of Houses and Residential Land contains a notation next to the finance condition in the reference schedule of the Contract as follows:- “Unless all of ‘finance amount’, ‘financier’ and ‘finance date’ are completed, this contract is not subject to finance and clause 3 does not apply.”

Clause 3.1 of the REIQ Contract provides:- “This contract is conditional upon the Buyer obtaining approval of a loan for the finance amount from the financier by the finance date on terms satisfactory to the Buyer. The Buyer must take all reasonable steps to obtain approval.”

Accordingly, as all three sections in the finance section of the reference schedule of the Contract had not been completed, prima facie, the Contract did not appear to be subject to the finance condition.

Despite the deficiencies in the Contract, did the Court decide that the Contract was subject to finance?

The Buyer argued that she had told the agent (who had prepared the Contract) that it was to be subject to finance, and that she had relied on the agent to have completed the contract in such a way as to make it subject to finance. To this, the court remarked “if the [Buyer] relied on the real estate agent to complete the contract in such a way as to render it subject to finance, the applicants may be estopped from denying that the contract was subject to finance, regardless of the written terms of the document.”

The Court further remarked that “it is at least arguable that the agent was the agent of the applicants for the purposes of making representations as to the effect of the way in which they had completed the contract form, and if such a representation were made and were relied on by the respondent, it would be binding on the applicant.”

Despite the above remarks, the Buyer had not submitted sufficient evidence to the Court to substantiate that the agent had represented to the Buyer that the Contract was subject to finance and that the Buyer relied on that representation. Noting that the Buyer in this case was self-represented, the Court adjourned the matter to allow the Buyer an opportunity to submit further evidence to substantiate her case.

We are advised that the dispute between the Buyer and Seller remains unresolved. No doubt there is a contest regarding what representations the agent is alleged to have made on behalf of the seller.

Key Takeaways

  • It is important for Buyers to remember that real estate agents are appointed by the Seller and accordingly will act in the interests of their client. If an agent has made a representation to you, whether it be with respect to the property condition, or the terms of the Contract, we recommend that such representation be reflected in the Contract as a special condition or a warranty.
  • In the event that a situation arises whereby a Buyer may seek to rely on a representation made by an agent, it may be difficult, in the absence of written documentation, to produce sufficient evidence to substantiate that the representation was in fact made and relied upon by the Buyer.
  • Whilst it may be possible for a purchaser to rely on a representation made by an agent with respect to a particular contractual term, the best course of action is to obtain independent legal advice prior to signing the Contract to ensure that any such representations have been reflected in the Contract.

Had the purchaser in the above mentioned case engaged a solicitor to review the Contract prior to signing same, the deficiency in the contract with respect to the finance particulars could have rectified, and accordingly, the parties could have avoided the dispute as to whether the Contract was or was not subject to finance.

Separate to obtaining pre-contract advice or legal assistance throughout a conveyancing transaction, it is apparent from the facts of this case, that when parties become embroiled in litigation, they will certainly benefit from engaging the services of a solicitor to assist them with preparing evidence sufficient to establish and support their case.

If you would like to read the court’s judgement in detail – you can access the case via:-  https://www.sclqld.org.au/caselaw/QDC/2018/052

Other considerations

Notably in this case, the words “sufficient to complete” were used to describe the “finance amount” required to complete the transaction. In our next blog (due out on Friday 8 June 2018)  “When sufficient to complete is simply not enough”  we examine the Court’s view on the adequacy of this frequently used phrase.

What can we do to help?

If you are considering purchasing or selling a property in Queensland, in addition to acting in the conveyance, Just Us Lawyers can provide you with pre-contract advice, review a Contract that has been prepared by a third party to ensure its accuracy, and formalise representations made by a Seller or agent into special conditions or warranties that will form part of the Contract.

Just Us Lawyers – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

 


How important are SPECIAL CONDITIONS?

Whether you’re purchasing your first family home or increasing your property portfolio, purchasing property is an important financial decision that is not to be taken lightly. It is crucial that you sign a contract in accordance with your current circumstances and needs. Typically this is achieved through Pre-Contract Advice and/or Contractual Negotiation. 

WHAT ARE SPECIAL CONDITIONS

In addition to the standard terms of a Contract, it is common practice to insert special conditions prior to execution. This provides additional protection and rights with respect to the property transaction. Special conditions are also inserted to vary or delete existing standard terms to benefit either or both parties.

Listed below are some common special conditions that can be inserted for the benefit of the Purchaser:-

  1. Body Corporate Pet Approval – if purchasing a unit or townhouse with the intention of a pet residing in or on the property, the Purchaser must ensure the body corporate will approve.
  2. Due Diligence – this allows the Purchaser to investigate the land being purchased through a range of property searches. This may be necessary to ascertain development restrictions, permitted uses, current building structure approvals and certification etc.
  3. Prior Sale – are funds from your sale to be used to assist in the purchase of the new property?  It would be beneficial to insert a condition with respect to the satisfactory settlement of your prior sale Contract.

When a Special Condition is inserted into any Contract it must be clear and concise, warranting avoidance of potential future dispute, as a condition could be void if it is deemed vague or confusing.

Once you have entered into a property transaction by way of a fully executed Contract of Sale, it is legally binding, therefore we recommend engaging Pre-Contract advice in which we can draft appropriate conditions, negotiate and provide advice with respect to terms you would be bound by.

For further information on special conditions and how we can assist in pre-contract advice please contact our Conveyancing Team based at our Wilston office.  

For the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today

 


New Data Breach Laws and your responsibilities

BY SARAH CAMM

 

Amendments to the Privacy Act 1988 (Cth) are now in effect, introducing a mandatory notification scheme for data breaches.

 

What are the changes?

The scheme imposes notification and reporting obligations upon APP entities where they know or suspect there has been an eligible data breach, that is, a data breach involving personal information that is likely to result in serious harm to any individual affected.

So let’s unpack this a little.

 

Reporting obligations

The obligation imposed is to prepare a statement to report the breach to the Office of the Australian Information Commissioner (OAIC) and notify any individual affected. If it is not practical to notify individuals, the statement must be published on the entity’s website.

 

APP entities

Organisations and federal government agencies subject to the Privacy Act, which include:

  • NGOs, Government Agencies and Businesses with an annual turnover of $3 million;
  • Credit reporting bodies that hold credit information;
  • Health service providers who hold personal information; and
  • Tax file number recipients.

 

Know or suspect

The obligations under the amendments arise when the entity has reasonable grounds to suspect that there may have been an eligible data breach, even if there are not reasonable grounds to believe that the circumstances amount to an eligible data breach. The obligation on the entity in these circumstances is to commence and carry out an assessment within thirty days.

 

Data Breach

There are three main circumstances:

  1. Unauthorised disclosure: where an entity (including by its employee) makes information accessible or visible to a third party, whether intentionally or not.
  2. Unauthorised access: may be where a third party contractor or other person accesses information they are not permitted to access. This includes instances of hacking.
  3. Loss: for example where a phone, USB, file or hard drive is left on a bus, particularly if there is no password or encryption on the device where unauthorised disclosure/access is likely.

 

Likely to result

The risk of serious harm must be higher than a possible risk; it must be more probable than not.

This criteria is considered objectively, and the decision is whether a ‘reasonable person’ standing in the position of the entity, with the knowledge of the entity (not of the affected person) would consider that serious harm is more probable than not.

This depends on the nature of the information, and in a broad sense, the type of person the information may relate to. The entity is not however required to make external enquiries of the individuals affected.

For example, if the addresses of clients of a domestic violence victims support group are involved in a data breach, the entity would be aware that the persons involved are likely to be victims of domestic violence and therefore are likely to be at risk of serious harm where this information is disclosed.

 

Serious harm

While not defined in the Act, the phrase is likely to include physical, psychological, emotional, financial or reputational harm.

The Act contains a list of relevant matters to assist an entity in evaluating whether serious harm is likely, including:

  • The type/sensitivity of information involved;
    • Health/person information;
    • Documents used for identity fraud;
    • Location/contact information.
  • Whether there are any security measures protecting the information (such as encryption, passwords on phones and devices, codes), and the likelihood of these security measures being overcome;
  • The identity or class of persons who have obtained / might obtain the information and the likelihood that they want to cause harm;
  • The nature of possible harm; and
  • Any other relevant matters.

 

Any individual affected

As discussed above the entity is not required to look into the particular circumstances of the persons whose information may be compromised, however it is expected to make general enquiries to determine the matters outlined above. All of these matters, including the type of information, how long it was available and who accessed it are relevant.

The more people whose information was accessed and who may be affected by the breach, the higher the likelihood that one person will suffer serious harm.

 

Are there any exceptions?

There are a number of exemptions, most importantly that notification will not be required if the entity takes action to prevent serious harm before it is caused.

 

What are the penalties for non-compliance?

Failure to comply is considered an interference with the privacy of an individual and substantial penalties apply for entities who fail to comply with their reporting obligations. The OAIC can investigate complaints and, in the case of serious or repeated instances of non-compliance, apply to the Court for civil penalties of up to $2.1 million.

 

Is your business ready for the new Data Breach Notification laws? Do you need help evaluating a breach or drafting a compliant Statement to notify the OAIC and affected individuals? Just Us Lawyers can help your business organisation put policies into place to reduce the likelihood of Data Breaches and to help you evaluate and respond to a Data Breach if it occurs.


Get to know Just Us…. Skye Nicholson

SKYE NICHOLSON – LEGAL ASSISTANT

Any favourite line from a movie?

“Get to the choppaaa!” – Arnold Schwarzenegger.

 

Do you have a favourite quote?

“If you’re going through hell, keep going” – Winston Churchill.

 

If you could change one thing about working here, what would it be? 

Casual Fridays and a printer on my desk for when I get lazy haha.

 

If you could interview one person (dead or alive) who would it be?

Cooper Cronk – he has played such a pivotal role in NRL throughout recent years and I would like to see what he has instore following his retirement (since no other reporters can get it out of him).   

 

Tell us three things most people don’t know about you…

  1. I love what I do;
  2. I love my NRL; and
  3. I broke my leg in 2015… unfortunately while I was working at an office that was in a high-rise building. I had to get authorisation to use the chair lift.

 

What does a typical day look like for you?

Emails, emails, emails, drafting correspondence to clients and/or other firms and often I will also spend time either researching or reading relevant conditions and clauses.

 

 What is the first thing you would buy if you won the lottery?

Send my parents on a holiday, buy an investment property, a boat and a jet ski ie. “The dream”!

 

What food/drink do you wish had zero calories?

Beer and ice-cream.

 

You’re happiest when?

 I’m with friends and family either at the beach or simply enjoying the outdoors of this beautiful country.

 

Skye is part of the Kelvin Grove branch team. Presently she is assisting our solicitor, Natalie Smyth, in various areas including Commercial Law and Binding Financial Agreements.  If you have any queries  – call/email Just Us Lawyers or complete our enquiry form for a quote today.


What will happen to my pet after I die

By Sarah Camm

Working out what will happen to your estate and who will benefit from it can be a bit like a checklist:

  • Spouse – check
  • Children – yep
  • Parents – sorted
  • Siblings – okay
  • Pet?

For many people, their pet might actually be their most dependent dependant. Have you thought about what will happen to your furry friend after you pass away?

Where will they go?

Many people don’t like to think of pets as property and humans as owners, but in the eyes of the law these particular family members are treated as chattels, and will go to your beneficiaries.

Can I give them my property?

No, unfortunately your pet pup cannot actually own your house, or your jewellery or even your cash. This is probably a good thing because I doubt they would know what to do with it. Luckily you can leave a portion of your estate “for the benefit of” your bestie.

Who should I leave the property to?

There are a couple of options.

If you have only one pampered pet in your life, you might leave a fixed sum to a person that you trust who will use these funds for the benefit of your pet. This should be the same person as you actually name as the new carer for your pet. You obviously trust them with your pet’s wellbeing, just be sure you trust them to use the cash correctly.

If you have a few pets, or you want separate people to help with care and finances you might consider setting up a trust for your beloved companions. A trust gives you a bit more control, and may even generate its own income, meaning your property can provide for your pet for some time to come.

Important things to remember

  1. Make sure your Will is valid and binding – a dispute over the validity of your Will could cause costly litigation and delay, meaning your pet’s future may be uncertain.
  2. Make your intentions clear – your Will should clearly state who is to look after your pet after you die, and what (if any) property you are leaving for their benefit.
  3. Leave your pet to one beneficiary, but name a backup just in case.
  4. Make sure your pet’s new owner has agreed!!

Dogs, cats and all other furry friends thrive on consistency and don’t like to move around a lot. Taking the time now to make their futures certain can make a confusing time in their life a little more comfortable, and give you the peace of mind that they will be well looked after for years to come.

A Wills & Estates solicitor can assist you to work through a number of best – and worst – case scenarios to ensure that your Will is as certain as possible. At Just Us Lawyers we have experience in drafting Wills for clients with a wide range of circumstances. Contact Just Us Lawyers Wilston office to enquire about drafting a new Will that reflects your wishes.


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