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Articles
By Pamela Wardle, Legal Practitioner Director
Under an enduring power of attorney, you may authorize your attorney to make two general types of decisions on your behalf. The first type has two branches: personal matters and health matters. Personal matters concern you and your personal wellbeing, such as where you live and with whom and who takes care of you on a day-to-day basis. Health matters are matters in which a health practitioner will usually request a decision, such as whether or not you are resuscitated, artificially hydrated or continue with life support. Your attorney cannot make decisions in personal and health matters unless you are unable to make those decisions for yourself. The second type includes financial matters, which means your attorney may deal with your bank accounts, shares, real property, government departments etc. It is important to remember that your enduring power of attorney does not automatically authorize your attorney to step into your role as a director or trustee. Your attorney can make decisions in financial matters from a time of your choosing (usually governed by your personal circumstances) and this power “endures” when you lose capacity to make decisions for yourself. You do not need to give your attorney the power to make all types of decisions nor do you need to appoint the same person for both types of decisions. Who to appoint as your enduring attorney under an enduring power of attorney can be a very complex decision. Make an appointment to see us to discuss the multitude of factors which may affect who you appoint and the decisions you allow them to make.
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By Pamela Wardle, Legal Practitioner Director
In our last article we discussed the Seller’s role on the Settlement Date. If you are purchasing a residential property, your role on the Settlement Date is different in some ways to the Seller’s role. Similarly to if you are selling, your solicitor usually takes care of the administrative details of ensuring the correct parties, cheques and documents are available at a time and place agreed with other solicitors and banks. Again, is absolutely vital to make sure you are available at all times in case your solicitor or financier needs further information or to sort any last minute issues that arise and to advise when settlement has been effected. It is strongly recommended that you undertake a pre-settlement inspection on the Settlement Date before the time arranged for settlement. Advise your solicitor what time you intend to undertake your inspection so the settlement time can be set to occur after your inspection. When you do your pre-settlement inspection be careful to note any issues, such as damage to windows, walls or floors or if fixtures (other than Excluded Fixtures) or Included Chattels have been removed etc. You should immediately notify your solicitor of any issues so you can discuss the rights that you may have before settlement occurs. If you do not contact your solicitor, you solicitor may assume that you agree to proceed. If you will be moving into the property, the Seller should have removed all of their possessions. Unless otherwise agreed, any of the Seller’s possessions which remain on the property after settlement may become your property. Be sure to check with your solicitor to ensure there are no exceptions which may apply. You should also ensure any insurance, which you should have arranged at the beginning of the Contract, are in place and that you have contacted your power supplier. Similarly to if you are selling, you do not need to transfer the water/sewerage account or rates as these are transferred when the Transfer has been registered with the Department of Natural Resources and Mines and notice has been given by that department to the relevant entities. If you are purchasing a property, contact us to discuss any other requirements which may be relevant to your circumstances. By Pamela Wardle, Legal Practitioner Director
If you are selling a residential property you have probably heard the word “settlement” repeatedly. A contract and subsequent residential conveyancing process is focussed toward the Settlement Date when the Seller hands over possession of, and the keys to, the property in exchange for the buyer handing over the Purchase Price (adjusted as required). Your solicitor usually takes care of the administrative details of ensuring the correct parties, cheques and documents are available at a time and place agreed with other solicitors and banks. Accordingly, is absolutely vital to make sure you are available at all times in case your solicitor or mortgagee needs further information or to sort any last minute issues that arise. Your solicitor will also need to contact you to advise when settlement has been effected. But what are your other responsibilities as seller? Unless it has been agreed otherwise, you will need to remove all of your possessions from the property before settlement, including any Excluded Fixtures listed in the Contract. You will also need to ensure any Included Chattels listed in the Contract and all fixtures (eg including curtains/blinds) remain. Usually, the buyer will undertake a pre-settlement inspection on the Settlement Date. If this is the case, it is customary for a seller to remove all possessions before the pre-settlement inspection so the Agent can lock the property and ensure no damage may occur between the pre-settlement inspection and settlement. You should also ensure power or gas accounts are cancelled or transferred and any insurances are cancelled (however, it is best to wait to cancel any insurances until you hear from your solicitor that settlement has been effected). You do not need to cancel your water/sewerage account or rates as these are transferred when the Transfer has been registered with the Department of Natural Resources and Mines and notice has been given by that department to the relevant entities. If you are selling a property, contact us to discuss any other requirements which may be relevant to your circumstances. By Pamela Wardle, Legal Practitioner Director
Negotiating a lease often represents a new business or venture and can be a very exciting time. At this stage, the parties often focus on issues which will apply immediately such as the rent payable, how it is payable and whether or not the rent includes GST, which charges are covered in outgoings and what proportion is payable by the Lessee and what is the term of the lease. When negotiating the lease it is equally important to consider the terms which relate to the end of the lease, for example: 1. In what condition are the premises to be left when the Lessee leaves? For example, is the Lessee to remove all fixtures and make good any repair, essentially leaving an empty shell? If not, what is to remain and in what condition? What types of costs must the Lessee pay if he or she does not comply with the terms of the Lease and how can the Lessor recover these costs? 2. What are the Lessor’s rights if the Lessee owes money at the end of the Lease? Can the Lessor recover those costs as a liquidated debt or are there specific steps the Lessor must follow before recouping those costs? 3. Who pays any legal costs associated with ending the lease? For example, if the lease is registered does the Lessee pay the costs of surrendering the Lease from the title? It is important to consider these issues and others which may arise at the end of a lease to assist all parties to end the lease on good terms. By Pamela Wardle, Legal Practitioner Director
It is very common for people to say that they have “paid off their mortgage” for their home or land when what they really mean to say is that they have paid out their loan. A Loan Agreement and a Mortgage are two separate documents which have two distinct functions. A Loan Agreement records the promises made by each party to the loan, ie the lender promises to loan an amount of money to the borrower and the borrower promises to repay that money. The Loan Agreement also specifies the terms of those promises such as interest rates, repayment amounts, repayment due dates and the period during which the loan must be repaid. A mortgage, however, “secures” repayment of the loan by linking the loan to the borrower’s real property. The mortgage records the borrower’s agreement that if the borrower does not satisfy its obligations under the Loan Agreement, the lender may use or sell the borrower’s property to recoup its money. A mortgage over a home or land will usually be registered on the title for the land. It is important to be aware that if you have repaid your loan, the mortgage which is registered over your home or land is not automatically removed or released. If you wish to have the mortgage released you will need to sign a Discharge Authority with your financial institution and arrange for a Release of Mortgage. The financial institution will usually send the Release of Mortgage to you to register in the Department of Natural Resources and Mines. Both the request to have the mortgage released and the registration of the Release of Mortgage usually incur fees which are in addition to your final repayment under your Loan Agreement. If you have repaid your loan, talk to your financial institution about whether or not you should arrange for the Mortgage to be released form your home or land. By Pamela Wardle, Legal Practitioner Director
Have you just signed a contract? If so, who is actually entering into the transaction? Individuals, companies, trusts and superannuation funds are all separate and individual entities at law even though the controlling person may be the same person (eg an individual may be the director of the company or the trustee of the trust or superannuation fund). If the wrong entity is noted on a contract: 1. correcting the error may be costly or cause significant delays (which may cause you to breach the contract by not performing your obligations when due); 2. the entity on the contract may not have the legal authority to deal with the property. For example, if a property is owned by ABC Pty Ltd as trustee for the XYZ Family Trust, neither the company nor the individual directors have the legal authority to sell the property in their own right (ie to have their names on the contract); and 3. the Office of State Revenue may view the arrangement as two separate transactions (eg the incorrect name purchases the property under the contract and then transfers the property to the correct name under the transfer) and you may need to pay double stamp duty. So to avoid confusion, delay and expense, be sure that your contract reflects the correct name before you sign. If you are unsure about who should be the correct entity to the transaction contact your accountant or our office for advice specific to your circumstances. By Pamela Wardle, Senior Solicitor
Be careful! Different laws apply to leases for commercial or industrial premises, retail shops and residences. If you rent commercial or industrial premises, the enforceability of terms in a lease is governed by the broad provisions of the Property Law Act 1974 and the common law. However, renting a retail shop or residence is also regulated by specific legislation. For retail shops, the Retail Shop Leases Act 1994:
For residences, the Residential Tenancies and Rooming Accommodation Act 2008: 1. restricts certain payments; 2. provides strict termination periods; and 3. also provides specific mechanisms to resolve disputes. It is important to know which laws apply to your lease to ensure the terms of your lease are enforceable against the other party. |
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