Nikki

By Remy Forster

In December of 2016 Just Us Lawyers completed the firm’s first electronic conveyancing settlement through the PEXA system. We have previously written about how e-conveyancing has the potential to simplify conveyancing settlements (see our blog from September 2016 The advent of e-conveyancing) and there’s no better way to decide on the usefulness of e-conveyancing then using it. So how well did the expectations we have of e-conveyancing hold up in reality? The truth is, not as well as expected. None of the potential problems with e-conveyancing affected this specific settlement in the end, but using the PEXA system did reveal a number of issues with the Queensland electronic conveyancing system that have yet to be fine-tuned.

At present, PEXA is deliberately set up so that an electronic settlement cannot occur until the solicitors acting for the Buyer have set up details with the Office of State Revenue’s (OSR) online system regarding transfer duty for that specific transaction. This is not a bad idea in itself, as under a paper conveyance, the Buyers’ solicitors would set up the transfer duty details with the OSR prior to settlement in any case. However, in the case of our first electronic settlement there was a glitch in how the PEXA system communicated with the electronic system used by the OSR. For this particular glitch, PEXA, the Buyers’ solicitors and the OSR were able to work together to have the issue resolved prior to settlement; but for a considerable amount of time, it looked like the glitch would not be able to be fixed and the settlement would not be able to proceed electronically.

This issue arising has revealed the current two biggest problems with agreeing to settle a conveyancing matter electronically. The first is that the PEXA system relies on other electronic systems, such as those used by the OSR and the Department of Natural Resources and Mines (DNRM), to work seamlessly with the PEXA system. An arrangement like this is very achievable and other states in Australia already have these systems in place. However, for Conveyancing Lawyers in Brisbane, until either a considerable amount of time passes or the amount of electronic settlements drastically increases, it may take a while for any glitches in the systems to be worked out.

When these glitches cannot be rectified, a second problem occurs – that the conveyancing settlement has to be reverted back to a paper settlement. If the parties are given a suitable amount of notice that the settlement cannot proceed electronically, reverting back to a paper settlement isn’t much of an issue – but as most residential conveyancing settlements in Queensland are 30 days settlements, there is a high chance this time won’t be available. Additionally, most banking institutions which allow PEXA settlements appear to have made changing a conveyancing settlement from electronic to paper unnecessarily complicated and lengthy. For example, the banking institution involved in our particular electronic settlement advised us that it could take up to 10 business days for their teams to change the settlement from an electronic to a paper settlement in their systems. Further, changing from an electronic to paper settlement also requires original documents to be signed by the parties (prior to settlement) that are not needed for electronic settlements. If one or both of the parties are located overseas, interstate or regionally or otherwise unable to sign the settlement documents at short notice, this could result in settlement delays. The obvious solution to concerns with settlements being reverted from electronic to paper, without much notice, is for the solicitors involved in the transaction to ensure they are able to proceed with settlement by both means. If the electronic settlement should be unable to proceed both parties are then prepared for a paper settlement. Having to do this does defeat some of the benefits to the parties involved in settling a conveyancing matter electronically, but allows more protection to the parties’ ability to settle by the required settlement date. Another alternative, to avoid last minute glitches, is for the solicitors to both parties to have all aspects of the PEXA settlement that require interaction with other electronic systems ready two or three weeks prior to settlement – but even then, there is no guarantee that a glitch won’t develop closer to settlement.

Despite the above, all other aspects of the electronic conveyancing proceeded without error and the benefits of electronic conveyancing were made very clear. As the Sellers’ solicitors, we received notifications from the PEXA system whenever items were required to be completed, communication in the online PEXA message system was seamless and our clients received the proceeds of their sale as cleared funds in their bank account within hours of the settlement occurring. It was also with pleasure that we watched the PEXA system notify us only two days after settlement that the property was already in the name of the new owners, as opposed to the two or three months that this can take to occur for a paper settlement.

Overall it is definitely still worth arranging conveyancing matters to settle electronically, both to allow practitioners and clients to become used to how electronic settlements proceed and to test the usage of the PEXA system. The above being the only main issues which arose in our first electronic conveyance shows how strong the PEXA system is already, and we have high hopes that with more usage in the conveyancing sector that it will only be a matter of time before glitches in PEXA electronic conveyances are a matter of the past.

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

REMY FORSTER – CONVEYANCING PARALEGAL

If you could sum yourself up in 5 words, what words would they be?

Practical, confident, nerdy, impatient and caffeinated.

Why did you choose the career path that you are currently in?

I started working as a receptionist to get some experience when I started my law degree, was promoted into a conveyancing job and liked it so much I never left.

What phobias do you have?

Foniasophobia.

Do you have a favourite quote?

“But I am assailed with my own ignorance and inability. I’ll just have to work from a background of these.”– Jonathon Steinbeck

Who was the first artist you ever saw live, and what memorable moment did you take away from the event?

Robbie Williams. It gave me an aversion to Robbie Williams but a love of live music.

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

I would install a giant ball pit for us to play in on our lunch breaks. I guess staff members’ children could play in it too.

What book, or series of books, would you recommend?

The Hyperion/Endymion Series by Dan Simmons or anything by Donna Tartt.

What aspect of your role do you enjoy the most?

Helping clients solve unexpected problems when they arise, and learning new conveyancing skills.

Favourite travel spot?

Anywhere in Ireland.

What are your favourite things to do in the wonderful city of Brisbane?

Attend the open air cinema at Southbank, wander around Brisbane Festival and check out the displays in GOMA and the Science Museum.

Which cartoon character would you most like to switch lives with?

Rick Sanchez.

What are three career lessons you’ve learned thus far?

Knowledge is temporary, attention to detail is vital and excelling at a difficult job is more than just a 9 to 5 commitment.

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 Natalie Smyth

The Real Estate Institute of Queensland have recently updated the Houses and Residential Land Contract and the Residential Lot in a CTS Contract to deal with recent changes to the Fire and Emergency Services Act 1990, with respect to smoke alarms.

The Fire and Emergency Services (Domestic Smoke Alarms) Amendment Act 2016 (“the Act”) has amended the Fire and Emergency Services Act 1990, by modifying the definition of and provisions related to “compliant” smoke alarms in residential properties.

As the amendments took effect from 1 January 2017, it is important to consider what these amendments mean for landlords, and also buyers and sellers of residential property in Queensland.

Prior to the amendments taking effect, a compliant smoke alarm in a Queensland residential property was one that complied with Australian standards AS3786-2014 (S1). Now, smoke alarms will need to comply with both Australian standards AS3786-2014 (S1) and AS 160.6-1997 (S2) to be considered “compliant” under the new legislation and the terms of a standard REIQ Contract for the sale of residential property in Queensland.

The S2 standards provide for the positioning of smoke alarms and the requirements for smoke alarms to be linked. In particular, the S2 standards specify that smoke alarms must be positioned between each area containing bedrooms and must be interconnected, so that when one smoke alarm is triggered, they all do.  The S2 standards also provide that smoke alarms must have a continuous power source, for example, hard-wiring or a 10 year battery.

Other Key Changes

The Act provides that from 1 January 2017:-

1. if a smoke alarm does not work when it is tested, it must be replaced by a photoelectric alarm; and
2. any newly installed smoke alarms must be a photoelectric smoke alarm.

Research suggests that photoelectric smoke alarms are more effective, as they are more sensitive to detecting the large particles that are produced by smoldering fires, and are also said to reduce the number of false alarms, which are started from cooking, for example.

New buildings/Renovated Dwellings

The new requirements for smoke alarms will apply immediately to brand new builds and substantially renovated homes (if the building application was made after 31 December 2016).

Timeframes for changes/obligations for Sellers and Landlords

Whilst the amendments came into effect on 1 January 2017, the changes to existing smoke alarms are being phased in over a period of 10 years.

By 1 January 2022 any property that is sold or leased must contain a compliant smoke alarm prior to the Contract of sale or lease being entered into. This means that presently, there is no obligation for

Sellers and Landlords selling or leasing property to update existing smoke alarms to ensure they are “compliant”.

By 1 January 2027, all residential property owners will need to ensure that smoke alarms are compliant.

Further Considerations

• Property agents, solicitors and conveyancers must ensure that they are using the latest editions of the REIQ Contracts; and
• Buyers/tenants may require additional special conditions included in the Contract for Sale with respect to smoke alarms when they are purchasing or leasing residential property.

If you are buying or selling a property and you require advice surrounding how the new smoke alarm laws affect you, or require special conditions to be drafted for your Contract, please contact Natalie Smyth.

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

In the lead up to mid-year salary and performance reviews it is timely for employers to take stock of arrangements under employment contracts.  In particular, employers should consider whether their employees are engaged under a fixed term or an ongoing (permanent) contract of employment.

Some employers may be considering employing workers on fixed term contracts. Contracts of employment are generally of two types – those which terminate with the effluxion of time (fixed term contracts) and those which terminate by the giving of notice.

A fixed term contract is for a specific time period, for example, from 1 July 2017 to 30 June 2018, but it can be for any specified term. Contracts for two or three year’s duration are quite common.

The advantage of a fixed term contract is that there is no need to give notice of the end of the contract and a redundancy payment is not applicable.  The contract simply ends on the specified date.  However, the difficulty with a fixed term contract is that circumstances may and often do change during its term.  At common law, an employer who wishes to end the contract before the specified end date, will be required to make a payment to the employee equivalent to what would be payable for the balance of the term of the contract. If this is not done, the employee may be entitled to damages (with interest and costs) for income lost or to make an unfair dismissal application seeking reinstatement or compensation. On the flip side, an employee may also be liable in damages to their employer should they terminate a fixed term contract before it expires.

Another disadvantage of a fixed term contract is that it cannot be extended beyond its original term without changing the nature of the employment relationship from temporary (with no expectation of a continuing relationship) to permanent. A series of fixed term contracts entered consecutively overtime will evolve into a permanent employment relationship giving rise to a legitimate expectation by employees of continuity.  If this happens, the employer will be liable for accrued entitlements including redundancy pay and payments in lieu of notice of termination.

An early termination clause can be inserted into a fixed term contract, allowing it to be terminated by notice before the end date. This can help to overcome the pitfalls we have identified. A hybrid contract allows the employee to be employed “up to” the end date specified in the contract. Providing the full term is worked, there is no need for notice of termination and the employee has no statutory unfair dismissal rights or redundancy pay rights at the end of the contract.

The benefit of a hybrid contract is that it can be terminated at an earlier date by the employer without having to pay the full balance of the contract. A potential drawback to such a clause is that the employee may have statutory unfair dismissal rights and an entitlement to redundancy pay if they have served the required minimum employment period under legislation.  There is also the possibility that an employee might claim damages for breach of contract, arguing that the parties intended that early termination was only to occur in exceptional circumstances. In addition, unless the hybrid arrangement is clearly stated, there is a danger that a court or tribunal will view the inclusion of a notice provision as changing the very nature of the employment relationship from a temporary to permanent.

The “take home” message is that employer’s need to exercise caution in the preparing employment contracts. Fixed term or hybrid contracts should not be used to avoid or replace permanent employment and associated obligations. Where there is a finite or temporary demand for employees in your workplace, casual, fixed task or seasonal employees should be considered.  Where fixed term contracts or hybrid contracts are used, expiry dates must be properly diarised, managed and reviewed where necessary.

If you are reviewing your employment contracts, you would be wise to seek professional advice. Our solicitors at Just Us Lawyers have had many years of experience in assisting both employers and employees with employment law advice. Call or email Just Us Lawyers for assistance in drafting your employment contract today!

NATALIE SMYTH – SOLICITOR 

What T.V show/movie are you ashamed to admit you love?

The Vampire Diaries – adventure, romance, and ridiculously good looking vampires – what more could a girl ask for.

You’re happiest when?

I am at home in my PJs watching re-runs of the Vampire Diaries and snuggling up with my ginger cat, Prince Harry.

What children’s character can you relate with most? Why?

Belle from Beauty and the Beast – I am such a bookworm.  I also have brown hair and brown eyes and hope to own a horse named Phillipe.

Best vacation you’ve been to?

When I was little we went to the Pet Porpoise Pool at Port Macquarie and I was chosen out of the crowd to brush the dolphin’s teeth with a giant toothbrush.  Very proud moment!

What aspect of your role do you enjoy the most?

I love problem solving for my clients. Especially, spotting hidden clauses in contracts that are contrary to my clients’ interests. If spotted early in the contract negotiation stage, many of these clauses can be removed, redrafted or reworded to better protect my clients’ interests.

What did you want to be when growing up?

I always wanted to be a painter or a writer.  I still write in my spare time, and hope to publish my own novel one day!  It will be a romance, of course – but no vampires.

What places have you lived in?

I lived in Ireland for five months whilst participating in an exchange program through my university. It was the best experience. It helped me develop a new sense of self and gave me a lot of confidence.

What is your family like?

Think, my Big Fat Greek wedding.

What are two career lessons you’ve learned thus far?

Say yes to all opportunities that come your way and never say you can’t do something – you never know how much you are capable of until you try!

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

Real Estate can make for a fantastic investment. However, you need to be careful as there are many risks involved when you rent out your new property.  As a new property owner you may encounter challenges in finding and retaining good tenants.  Before tenanting your new investment property it is worth becoming familiar with the property laws in your State so that you know what actions to take if or when tenant issues arise.

One issue which often arises is the repayment of bonds at the end of a lease. There is quite often a very large gap between the landlord’s views and expectations as to what the bond money should be used for and the tenant’s legal responsibilities.  Landlords are often emotionally attached to their properties and expect the tenants to leave the property in immaculate condition. The landlord needs to be realistic and allow fair wear and tear over the course of a tenant’s lease, which may well increase with the length of time that the tenants have resided in the property.  An emotional connection to the property can influence what the landlord perceives to be a reasonable standard for cleanliness, yard and garden maintenance etc.

Some landlords choose to manage their properties privately and save on real estate management costs. However, when a landlord doesn’t engage a property manager, the landlord needs to ensure that they are familiar with tenancy laws, abide by these laws, as well as keep a very accurate record of rental payments. There are other processes under the residential tenancies act regarding inspections, remedy and breach notices which must be assiduously followed by landlords if they are to self-manage properly.

When a tenant moves into a property, they may often complain that the property is not ‘clean’. This can be a difficult issue as cleanliness is subjective.  The tenant should inform the landlord if there are any issues with the property as soon as they move in.  Records should be made and kept of the condition of a property at the beginning and end of each tenancy. This may avoid disputes, or assist in resolving them if/when they arise. Taking photographs is a great way to prove that the property was left or handed over in a certain condition.

When selecting a property manager, you should consider the percentage of properties that are in arrears for the agent, as this may be a performance indicator.  Additionally, consider how much should be set aside from your rental income for maintenance issues in the future. Doing that in advance saves you from trying to find the money to meet expenses.

Remember, it is important to shop around when looking for a rental agent, their charges vary greatly.  Many charge high fees for telephone calls, postage and sundries, on top of management fees. Check the reputation of your agent by Googling their name and check any online ‘reviews’. If a Facebook page is available, see what their customers have to say about them.  This might be the best way to find out about common disputes that the agency has with their landlords.

Above all else, make sure you find an agent that you not only trust, but that will keep in touch and conduct regular three monthly inspections. A proactive and communicative property manager is what you are looking for.

Remember it is your property but your tenants have rights too.

Buying or selling your investment property contact Just Us Lawyers – for the best Conveyancing lawyers in Brisbane call/email Just Us Lawyers or complete our enquiry form for a quote today.