Nikki

By Natalie Smyth

When it comes to selling residential property in Queensland, most people will engage the services of a real estate to assist them with marketing the property and introducing prospective buyers to the property. 

The contractual relationship between the seller and the real estate agent with respect to the agent’s fees and commission for marketing and selling the property is formalised by way of a Property Occupations Form 6 Appointment and reappointment of a property agent, resident letting agent or property auctioneer.

Many Sellers do not obtain legal advice regarding the Form 6 and as a result are uncertain on when commission will and won’t be payable to the real estate agent who has been appointed by them by way of the Form 6.

Don’t get caught out paying Double Commission when Selling residential property in Queensland

Term of Appointment

Sellers can appoint the agent for a single appointment for a particular service or services, or for a continuing appointment. A single appointment will specify the start and end date for the appointment, whereas a continuing appointment will specify a start date but will be continuing until the service is provided, or in most cases, the sale is complete.

Type of agency

The type of agency the Seller selects in the form 6 will have a bearing on when the Seller will be required to pay the appointed agent commission. For example, should the Seller appoint the agent “exclusively”, the Seller must pay the agent commission whether or not the agent, a different agent, or any other person sells the property during the term of the appointment. For example, If the Seller has also appointed a different real estate agent who is the effective cause of the sale, the Seller may be liable to pay commission twice, being once to the agent who was the effective cause of the sale, and twice, to the other agent who was appointed exclusively by the Seller.

REIQ terms of appointment

Annexed to a Form 6 is an REIQ Appointment of Real Estate Agency form, which contains Essential Terms and Conditions regarding the appointment. We have identified that these terms, which are often overlooked by Sellers, make provisions for when commission will be paid to an agent after the Contract for Sale is signed by the Seller and the Buyer.

If you are selling a property in Queensland, we recommend that you obtain independent legal advice from our property and commercial solicitor Natalie Smyth prior to signing a Form 6 and an REIQ Appointment of Real Estate Agent form. Failure to obtain legal advice prior to signing these documents may result in you having to pay double commission to an agent, or being liable to pay commission when a Contract of sale is terminated by no fault on your part.

We also 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

As a result of recent legislative changes, the Office of State Revenue requires you to prove who you say you are. If you do not provide verification of your identity (VOI) you are presumed to be a foreigner and are liable to pay 3 percent of the purchase price as a special taxable levy for your property conveyance.

We also need proof of your identity if you are the Seller so we can make sure that you own the property and are the person entitled to sell it and sign the transfer documents. Of course, this also goes for the Buyer. We need to be sure that you are the person who signed the contract to purchase the property and that a double duty isn’t payable to the State Government.

What is VOI?                                               

VOI is the process of proving your identity. This can be done by providing up to 100 points of ID similar to when you get your driver’s licence or changing your address. Certified copies of each proof of ID will be held on your conveyancing file.  Unless you are a repeat client, we will need you to verify your identity before signing your Transfer documents for your property conveyance.

What ID can I use? 

At least one photo ID is required and two are preferable, such as your Drivers Licence and Passport. If you aren’t able to provide those two, you can use other items such as a Medicare Card or Credit Card to make up the 100 points.

Who can certify the copies of your ID and witness your signature on the Transfer? 

If you’re in Australia, for all Queensland documents, only a Commissioner for Declarations, Justice of the Peace or Solicitor can certify original copies and witness your signature on the Transfer. There are Justices of the Peace located in many shopping centres and Courthouses all across the state. If you aren’t sure of one in your area, you can check the Queensland listing here.

If you’re overseas, the following persons can witness your documents and ID:

• an Australian Consular Officer;
• a Notary Public;
• an Australian Legal Practitioner or Lawyer; or
• a New Zealand Lawyer.

There are different forms required for different witnessing officers so ensure that you confirm with us who you will be using to ensure you have the correct forms.

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

A deposit is paid as a surety for the Buyer proceeding with the purchase. They are designed to protect the Seller should the Buyer be in default of the provisions of the Contract. Sometimes Buyers are caught out and lose their deposit because the Contract does not provide for their individual circumstances which may cause a delay in paying the deposit or meeting the Settlement date.

All contracts for the sale of residential property in Queensland contain provision for the payment of a deposit in either the form of a lump sum or by instalments to the stakeholder listed as on the Contract. The stakeholder is usually the Real Estate Agent, however if there isn’t one, or they don’t have a trust account, it is usually held by the Seller’s solicitor.

There is no requirement to pay a deposit, however the Seller usually requires one to be paid.

If after the cooling off period, you change your mind and decide not to proceed with the purchase, it is likely that you will forfeit your deposit.  In addition, if the Seller suffers a loss which is greater than the amount of the deposit (such as where the Seller is forced to sell to another buyer for lower than the purchase price), you may be liable to make up that loss.

For this reason, it is very important that you obtain professional advice, both before entering a contract and before seeking to terminate a contract you have entered.

INITIAL DEPOSIT

The initial deposit is a sum which is due either on one party signing the Contract, or a calculated date after the signing, but prior to the Cooling Off date. If no latter date is specified, then the deposit is due when the Buyer signs the Contract.

BALANCE DEPOSIT

The balance deposit, if there is one, is a further amount which is due on a calculated date, usually on or after the unconditional date.

HOW MUCH IS PAYABLE?

We are commonly asked, what’s the normal amount for a deposit? Generally Sellers do not seek more than 10% or 20% of the purchase price for proposed/off the plan lots. If a payment exceeds this amount the contract may be considered to be an instalment contract. This will have unintended consequences for the Seller (such as preventing termination, restricting developers ability to mortgage the lots pending sale and allowing the Buyer to lodge a caveat to prevent the sale of a lot to another Buyer in the event default- see ss72, 73 and 74 of the Property Law Act).  Apart from this,  it is up to the Buyer and Seller to agree on how much deposit is warranted.  We suggest that you discuss this with the Agent beforehand, as they will know if there is an amount the Seller is expecting as deposit. Also, if the Seller thinks the amount offered is low, they may not believe you are serious about buying the property and may refuse your offer.

DUE DATES FOR PAYMENT

So what does (or can) happen if you don’t pay your deposit by the due date? Well, you then become in default of the Contract. Once in default, the Seller may terminate the Contract and make a claim to recover the unpaid deposit. For example, if you paid an initial deposit of $1,000.00 however you were late to pay the balance deposit of $15,000.00; the Seller can terminate the Contract and sue you for the remaining $15,000.00.

If the deposit is paid on time and there is a Real Estate Agent involved, they will hold the deposit in their trust account until settlement. Once settlement has been completed they will usually (if their terms of appointment allow) deduct their Commission and pay any balance of the deposit to the Seller.

TERMINATION OF CONTRACT

If the Contract terminates under a condition of the Contract, the Seller may be entitled to claim the deposit as a penalty. You should seek legal advice prior to entering into a contract especially if you think that there may be future circumstances that may prevent you paying the Balance Deposit or even worse, meeting the Settlement date.

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

By Mel Demarco

When purchasing a property it is important that you have all your Ducks In A Row.  Below are some tips for you to consider when looking at buying a property.  Whether you are a first home owner or an investment it is always good to bear these in mind.

RESEARCH

Do your research. Check out the market online to get an idea of what you do and do not want.  The internet is a good tool for this.

Also consider the area you are thinking of buying in and take into consideration if your circumstances change ‘would this property be a good investment property for us’.

Key points when looking at the area to purchase in are schools, transport and shops.

BUYING AGENT

Have you considered a buying agent?

Buying Agents are experts in finding the right property for you as well as knowing what is happening in the area you are considering purchasing in.  They will also assist in negotiating the purchase terms of your Contract.

For example if you’re not comfortable at making offers, bidding at an auction or negotiating settlement terms, it could be a good idea to hire a buying agent.

FINANCE

It is always recommended that you speak with a professional broker or banker to obtain a pre-approval of your loan prior to looking for a property to buy or bidding at an auction.

Don’t be mistaken, even though you may look good on paper to the bank and they have issued you with a pre-approval the bank will most likely still require a valuation of the property you are purchasing to make sure it is a sound investment before providing you with an unconditional loan approval.

INSPECTIONS

It is always recommended that you engage a licenced building and pest inspector to undertake these inspections.  They will provide you with a written report and discuss the contents of it with you.  We all know that a paint job can look good but what is underneath it?  The inspector will get into the nooks and cranny of the property to provide you with a full and comprehensive survey of the property.

LEGAL ADVICE

Before signing a Contract your Solicitor/Conveyancer can look over the Contract and discuss its contents with you and perhaps suggest further special conditions to include for your further protection.

For example if the property has undergone any extensions or major renovation works, do these require to be certified for Council Approval and are these approvals in place?

Also the reasons for you purchasing this property, is it for development purposes perhaps? If so, you may need to include further development approval conditions for your protection.

No matter what anyone tells you, you are entitled to obtain legal advice prior to signing the Contract.   This is one of the biggest key factors for home buyers that we as your legal advisors cannot stress enough.

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

By Ted Besley

Recently the coach of a children’s soccer team attempted to claim unfair dismissal in the Fair Work Commission.  The case highlighted the need for organisations to be clear about their worker’s volunteer and/or employee status.

Recent Decision of Fair Work Commission (‘FWC’)

The FWC’s decision in Grinholz v Football Federation Victoria Inc [2016] 7976 (‘Grinholz’) underlines the need for organisations, particularly not-for-profits, to clearly characterise the arrangements under which people work for them. Grinholz also gives further guidance over the indicia which the FWC look at in determining whether or not the relevant work arrangements point to an employment relationship.

In Grinholz, the FWC found that the relationship did not amount to employment and therefore the worker was not entitled to protections afforded by the Fair Work Act (‘FWA’) such as unfair dismissal, adverse action and enforcement of entitlements.

The facts in Grinholz

Mr Grinholz was a coach for a girls’ soccer team whose club operated under the Football Federation of Victoria Inc. Under a document styled as a voluntary agreement, he was paid an honorarium for his services. The agreement also covered matters such as Mr Grimholz’s obligations to attend team training, matches and competitions as well as meet with other coaches and club administrators. Mr Grinholz’s honorarium was paid in two instalments – one at the beginning and the other at the end of each season.

Towards the end of the 2016 season, and prior to the payment of the second instalment of his honorarium, the club terminated Mr Grinholz’s role. He brought an unfair dismissal application under the FWA which the club opposed on the basis that he was merely a volunteer and not employed by them.

The FWC’s consideration

The FWC considered indicia of employment enunciated in Abdalla and followed in Jiang Shen Cai, including:-

• The degree of control, or right to control, the employer has over the manner in which work is performed by the employee;
• Whether the employee only works for that employer;
• Whether the employee is required to promote the employer’s business;
• Whether the employee is required to observe the employer’s policies and procedures;
• Whether the employee is paid by wage or periodic payment;
• Whether the employee is afforded leave and other entitlements; and
• Whether GST, income or other taxes are withheld by the employer.

Having regard to the above, the FWC found that Mr Grinholz’s circumstances had characteristics of both employment and voluntary work. On one hand, the club exercised a degree of control over him, required him to wear its uniform and abide with employment policies such as its code of conduct. On the other hand, he did not receive leave entitlements, tax wasn’t withheld from his honorarium and this was found to be roughly equivalent to his out of pocket expenses in performing the work.

The FWC’s decision

Weighing up the factors for and against characterising the situation as employment or voluntary work, the FWC found that it was more like a voluntary arrangement than it resembled employment. In reaching its conclusion, the FWC found that the purpose of the services agreement was intended to maintain coaching standards, the club’s reputation and protecting the interests of participating players. Importantly, level of control the club exercised over him was “not inconsistent” with a voluntary arrangement. Another important factor was the level of Mr Grinholz’s honorarium. If it had been significantly more than his out of pocket expenses, the FWC indicated that it may have found that the relationship was “more like” employment.

Implications for employers and not-for-profits

All organisations, especially those who have both employees and volunteers working for them, must ensure that the arrangements that underpin their work clearly depict the character of the relationship.

For clubs, societies and other not-for-profits, it appears that a degree of control can still be exerted over a worker and yet they can still be found to be a volunteer. One caveat is that any payment made to them must be commensurate with their role.

Just Us Lawyers act for employers, employees and incorporated bodies within the not-for-profit sector. If you find yourself involved in an employment dispute or unfair dismissal matter, our team of employment experts will get you through the system, whatever side you are on.

By Sam Ryall

For many Buyers purchasing property in Queensland, arranging suitable insurance prior to settlement is a mere afterthought. Too often, Buyers are preoccupied with their finance approval, the results of their building and pest inspections, obtaining property searches and the ‘handing over’ of keys after settlement takes place.

This blog stresses the importance of purchasing suitable insurance for the property you purchase in a timely manner. After all, wouldn’t you want surety as to third party protection if an unforeseeable event such as a natural disaster damages the property you have bought before settlement?

What do the Contracts say about insurance? 

In Queensland, the two commonly used forms of residential property Contracts of Sale are the Real Estate Institute of Queensland (REIQ) Contract and the ADL Contract. Both Contracts provide a Standard Condition in fine print relating to what is broadly termed as ‘Risk’. Unfortunately, Buyers are all too often either unaware of such condition or unsure as to their obligation with such condition.

Standard Condition 8.1 of the REIQ Contract of Sale provides that ‘The Property is at the Buyer’s risk from 5pm on the first Business Day after the Contract Date’.

Similarly, Standard Condition 30 of the ADL Contract of Sale provides that ‘From 5pm on the next Business Day after the signing of this Contract, the Property shall be at the risk of the Buyer, however as long as the Seller remains in possession of the Property the Seller shall maintain any current insurance policies and will use and maintain the Property with reasonable care.’

Unless anything to the contrary such as the insertion of a Special Condition to the Contract, buyers are encouraged to purchase an insurance policy cover note over the property shortly after signing. This is due to both the REIQ and the ADL Contracts of Sale providing that risk of the property is transferred from the Seller to the Buyer from 5pm the business day after signing the Contract of Sale.

Buyers do not be alarmed…..the Seller does have a continuing obligation to not only maintain their current insurance policy but also take reasonable care of the property up until and including the settlement date.[1]

What should I do if I am buying a home?

If purchasing standalone residential property in Queensland, buyers are encouraged to arrange for both a building insurance policy (for the land and the dwelling) and a contents insurance policy (which can cover personal items, furnishing and household items such as appliances). This is commonly termed as a ‘Home and Contents’ package.

Just Us Lawyers recommend that in addition to consulting our firm, buyers should contact their financiers for assistance in selecting a suitable policy or undertake their own research into a cost effective and reputable insurer.

What should I do if I am buying a unit?

If purchasing a body corporate unit or townhouse that is part of a Community Titles Scheme, insurance cover can vary. Firstly, buyers should confirm that their Body Corporate has maintained an up-to-date and comprehensive Strata Building Insurance Policy for the CTS.  If so, there is no need to concern yourself with Building Insurance. Buyers should be aware however that Strata Building Insurance may be limited to the actual dwelling and will likely not cover internal fittings and fixtures such as carpets, blinds, appliances and the like. It is up to you as the buyer to then determine whether contents insurance or any other relevant insurance should be taken out over the property.

Just Us Lawyers can assist you in explaining your rights and obligations as a Buyer with respect to insurance. Our friendly solicitors and conveyancing teams at our Brisbane offices in Kelvin Grove and Wilston can also provide advice and guidance to you as to suitable Special Conditions that can be inserted into the Contract with regards to insurance.

[1]Thieltges, Brigitte, ‘ Property Insurance – Who is responsible for what and when?’ (Date Unknown), McColmMatsinger Lawyers http://www.findlaw.com.au/articles/4853/property-insurance–who-is-responsible-for-what-an.aspx.

By Sam Ryall

Finding out that you have been appointed as an executor pursuant to a loved one’s or friend’s Will can be a daunting experience. Immediately, your mind may turn to the following questions:

• What is an executor?
• What are the roles and responsibilities of an executor?
• Can I seek legal advice as an executor to assist me in administering the estate or assets of my loved one or friend?’

These are just a sample of the various questions that an executor may ask themselves. However, being appointed as an executor need not necessarily be such a daunting responsibility. Whilst striving to give guidance to executors on estate administration and practical tips, this blog provides basic information only and independent legal advice should be sought from a qualified solicitor as to specific circumstances.

Executor and Testator: Defined 

Broadly speaking, an ‘executor’ is a person or a corporation appointed under a Will to administer the estate of a ‘testator’ or the deceased person. The ‘testator’ is the person who the Will is drafted for i.e. the Will is written in their name and they sign ‘off’ on the document.

Practical Tips and Common Roles and Responsibilities of the Executor

Whilst not exhaustive, the following is a basic ‘checklist’ an executor can utilise to ‘start the ball rolling’ in administering a testator’s estate:

1. Determine the assets (e.g. funds in the testator’s bank account, property, chattels) and liabilities (debts) of the deceased’s estate;

2. Make contact with other executors if you have been listed as a joint executor in administering the deceased’s estate;

3. Arrange for and obtain the original death certificate of the testator from the funeral director or enquire as to obtaining a death certificate from the Office of Births, Deaths and Marriages;

4. Locate the original Will of the testator;

5. Compile or provide information to the solicitors you engage for assisting in the administration of the testator’s estate such as their bank accounts, funeral debts, health insurance/outstanding medical bills, taxation paperwork (such as Group Certificates and the like) and rates/electricity/water/body corporate/phone bills or levies;

6. Seek legal advice as to whether a Grant of Probate will need to be obtained from the Supreme Court (or not) in administering the deceased’s estate.

Family Provision

An executor should always be mindful of the possibility of a family provision application or Testator Family Maintenance (‘TFM’) claim. A family provision application can be brought by a person who believes that adequate provision has not been provided to them for their proper maintenance and support under the testator’s Will or through an intestate estate (i.e. an estate in which the testator has not executed a valid Will) and they were dependant on that testator throughout their lifespan as a spouse, child or dependant. For what constitutes a ‘child’ or a ‘dependant’, see Section 41(1) of the Succession Act 1981 (Qld) (‘the Succession Act’).

Importantly, Section 44 of the Succession Act provides protection to executors from family provision applicants in distributing a testator’s estate. Most notably, Section 44(3)(a) of the Succession Act provides that no action can lie against an executor in distributing the testator’s estate if that distribution has been made properly and occurred not earlier than six (6) months after the date of the testator’s death if no notice has been given as to a family provision application.

Section 44(3)(b) of the Succession Act provides that if notice has been given in writing by the applicant as to a family provision application and signed by the applicant and or a solicitor, no action will lie against the executor if the distribution of the testator’s estate has been made properly and not earlier than nine (9) months after the date of the testator’s death unless the application has been commenced in court or the executor has been served with a copy of the application by the applicant or the applicant’s solicitor.

 Just Us Lawyers routinely attends to executors and assisting them with their roles and responsibilities in distributing the estate of a testator. If you have been appointed as an executor under a testator’s Will and need guidance, please do not hesitate to call or email Just Us Lawyers today –  Sam Ryall and our team of solicitors will be more than happy to assist.

LARA WALLROCK – LEGAL SECRETARY

What was your first job, and what did you like most about it?

Bakers delight, when I was first legally allowed to work. I loved the bin bags full of bread and sweet treats we got to take home at the end of the day!

Who is the person you have learnt the most from?

My son (Toby). He has unwittingly taught me how to live in the moment and what really matters in this life.

What advice would you give to a 13 year old you? 

15 years from now this won’t matter….relax….don’t sweat the small stuff.

Best vacation you’ve been to?

Nepal! In 2009 I trekked to Everest Base Camp. Life changing trip.

If you had to eat one meal, every day for the rest of your life, what would it be? 

Crispy skinned salmon, salad and creamy mashed potato…..yum.

What books are at your bedside? 

Toddler Taming! Lol

What one food do you wish had zero calories?

ICE CREAM!

Motto or personal mantra?

Everything will be ok in the end…. so if it’s not ok…..then it’s not the end.

Lara is part of our wonderful Wilston branch Conveyancing team.  Just Us Lawyers – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today