| Property and Investment News and Articles |
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| Estate Executors - Know your tax obligations |
| Agreeing to be executor of an estate means accepting obligations to the tax office. |
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| Trust deeds - Stamp duty costs if the deed is lost |
| The cost of registering an original trust deed generally pales into insignificance compared to the cost associated with a lost one. |
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| Builders' payments - Residential restriction on security of payment law |
| In a recent case a builder failed in a claim for payment from a homeowner who was not living in the property while the work was being carried out. |
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| Mortgage trap - Stamp duty payable on vendor finance |
| Structuring a loan transaction correctly is important to avoid unnecessary stamp duty. |
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| End Of Life |
| End-of-life issues are currently being discussed in the media here and overseas. They were highlighted by a recent case in NSW where a patient had made an 'advance health care directive' which recorded his wish to avoid certain treatments aimed at prolonging life. |
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| Travel Restrictions |
| In a recent case, a man was refused permission to leave Australia to visit his former wife, the mother of his children, who was dying and had only a few weeks to live. |
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| Visas |
| New guidelines issued by the Minister of Immigration have introduced major change in the way in which decisions to cancel a person's visa are made. |
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| Trusts - Blow the dust off that deed |
| Many clients are totally unaware of the limited life of trusts. |
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| Landholder Duty - Tax base expands |
| New state revenue laws create a new model for imposing duty on land. |
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| Rich Cats - How to leave a legacy for your pet |
| Trouble was the name of a cat which had its legacy of US$12 million cut back to US$2 million after a court case by unhappy human dependants. |
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| Homemade Wills- When the judge decides |
| A recent case was a clear example of a will prepared without legal advice failing to express the deceased's intentions. |
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| Retail Leasing - Honesty in pre-lease claims vital |
| Claims made in an effort to promote the uptake of commercial leases have to be weighed up by both tenants and landlords to avoid business troubles and potentially complex drawnout legal disputes. |
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| Land Tax - Where is the principal place of residence? |
| The most common area of dispute in land tax matters is a person's entitlement to the principal place of residence exemption. |
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| Tenders - Duty to treat all bidders fairly |
| In any contract process the authority calling the tenders has a duty to treat all bidders fairly and in good faith. |
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| Fixtures - What can I take from home? |
| All 'fixtures' are included in the sale of a property without having to be mentioned specifically. |
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| Wills And Super - Can you say who'll benefit after you're gone? |
| Large sums are often payable from a super fund when someone dies, particularly with recent super reforms, and with many funds containing life insurance policies. |
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| Forfeited Deposits - Will you pay GST if the sale falls through |
| Following a recent Court decision, GST-registered vendors who sell property as part of their business are now liable to pay GST on forfeited deposits. |
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| Tenders - Are disclaimers effective? |
| Businesses inviting tenders for construction projects often have to decide how much information to provide about latent conditions and how much site access to allow. |
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| Forgery - Invalidating the security on a loan |
| A recent appeal case is a timely reminder to everyone with financial interests that not only should steps be taken to ensure that fraud is not perpetrated which may render a security interest unenforceable, but that care should be taken to properly describe any security interests in loan and security documents. |
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| Moving In Early - Occupying a home before you settle |
| Sometimes it suits both the seller and the buyer for the buyer to take possession of a property before settlement. |
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| Wills - Who can inspect them? |
| Anyone who has possession or control of a Will of someone who died after 1 March 2008 must now allow a number of people to inspect the Will. |
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| Trusts - The tax sting in death benefits |
| Many people now have self managed superannuation funds constituted as trusts and are concerned to ensure funds are passed on without any loss of value. |
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| Capacity - Assessing decision-making ability |
| Correctly identifying whether someone is capable of making their own decisions is fundamental to the protection of their human rights. |
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| Lifetime Care - No-fault scheme for catastrophically injured |
| The new scheme for victims of car accidents who suffer catastrophic injuries has recently been extended to include adults. |
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| Self-Managed Super - Be wary of financial pitfall |
| A trustee or investment manager of a regulated super fund must not lend fund money to a member or their relative or give them any other financial assistance using fund resources. |
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| Land Tax - Avoid costly and complex disputes |
| "Normally, objecting to a land valuation is pointless unless you commission an independent one." |
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| Buying a Property |
| Protect against new trap between exchange and completion |
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| First Home Buyer Relief |
| Trustee parent seen as guardian |
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| Disability Trusts - Window of opportunity to convert existing trusts |
| Families may now make private financial provision for the future of a family member with severe disabilities through the creation of a special disability trust. |
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| Planning Ahead - Enduring guardians can help if you lose capacity |
| An enduring guardian is someone you appoint, at a time when you have capacity, to make personal, health or lifestyle decisions for you should you lose the ability to make them for yourself. |
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| Wills - Can I write my own? |
| It is not in your best interests to draft your will yourself. |
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| Disappointed Vendors - Two contractual options for claims |
| How do the different options available to a vendor operate if a purchaser fails to complete a contract? |
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| Builders Not Paid - Can they claim your home as security? |
| A builder made a number of claims for payment to an owner which were unpaid. |
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| First Home Buyer Relief - Trustee parent seen as guardian |
| A parent concerned to provide a permanent residence for an adult child suffering from a mental illness has been able to use the first home buyer's entitlement and stamp duty relief. |
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| Buying And Selling Property - Who bears the risk of damage? |
| The risk of damage to buildings and other fixtures remains with the seller until settlement, or some other time if it is stipulated in the contract. |
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| Landlords - Are you covered for damage caused by subtenants? |
| Over the term of a lease, it is common for tenants to decide they no longer need part of their premises or that sharing part of the premises with another business will offset the financial burden of meeting monthly rental payments. |
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| Farm Debt - When is a rural property not a farm? |
| Through the Farm Debt Mediation Act, mediation is required before a creditor can take possession of property or take other enforcement action under a farm mortgage. |
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| Smoke Alarms - Warning notice required on contracts for sale of land |
| A particularly worded warning notice about smoke alarms must now be attached to every contract for sale of land, or printed in the contract. |
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| First Home Buyers - Beware the requirements to benefit from grants |
| The NSW government offers first home buyers grants and concessions. But to qualify, there are restrictions. |
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| Trusts- Avoid capital gains tax when you transfer assets |
| Can you avoid paying capital gains tax if you decide to set up a second discretionary family trust for your children in order to transfer assets? |
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| Register The Deeds - Losing original deeds can be costly |
| Original trust deeds are very important documents, evidence of the existence of a trust which has the potential to be around for 80 years. |
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| GST Trap - Selling disused residential premises |
| Relying on the GST exemption for residential premises, without making allowances for the potential risks involved, could land you with a whopping tax bill. |
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| Security Deposits |
| If a sale goes bung, will you pay tax on the deposit? |
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| Retail Leases |
| "Entry into possession or payment of rent may begin a lease even though there's no formal deed or lease agreement." |
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| Lease duty to be abolished |
| As a result of recent amendments to the Duties Act 1997 (NSW), duty on leases will be abolished from 1 January 2008. |
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| Buyer Beware - Look at information 'for what it is worth' |
| It is not generally a valid defence to a claim of misleading conduct to say that the purchaser did not make adequate enquiries to protect his or her own interests. |
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| Certification - New board to regulate building industry |
| New laws have introduced major changes to the regulation of those who provide building accreditation. |
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| Shop Leases - New protections and obligations for retailers and landlords |
| New laws on shop leases came into effect at the beginning of 2006, bringing some significant new protections for retailers who lease premises, and a 30 March 2006 deadline for landlords to comply with a new bond obligation. |
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| Return Of Deposits - Can you get your money back? |
| At the end of every failed contract the question whether a defaulting purchaser is entitled to the return of their deposit will be raised. |
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| Leases - Negotiating to protect telecommunication site owners' rights |
| Radio communications equipment is often installed literally on a handshake, with site owners failing to appreciate not only the economic value of sites, but also the nature and extent of the legal risks to which they expose themselves. |
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| Buying A Home - When what you see is not what you get |
| All the 'fixtures' of a property are automatically included in a sale without having to be specifically mentioned in the contract, but the items a buyer thinks should be considered as fixtures may not always in fact be so.. |
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| Joint Ventures |
| It is important to document carefully the exact nature and scope of a joint venture to avoid a legal battle if one partner independently pursues a profitable opportunity which arose while the relationship existed. |
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| Sub-Division |
| A vendor selling a lot in a prospective sub-division must use their best endeavours to get the plan registered within six months. If not registered within that time-frame, the purchaser, or both parties jointly, may annul the contract. |
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| Radio Waves |
| Owners and managers of properties which house radio communications towers or antennas have strict obligations to limit exposure to electromagnetic radiation by those who visit relevant parts of the premises. |
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| GST on Long Term Leases |
| All lessors with long term leases with fixed or no rent increases should see their legal adviser now to avoid being liable to remit 1/11th of the rent as GST without getting reimbursement from the Lessee. |
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| Vendor Duty - New charge on land-rich entities |
| A new vendor duty on sales of an interest in a 'land-rich landholder' has been imposed retrospectively from 10 November 2004. |
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| High-Rise Living New strata title laws for 100 or more units. |
| Big apartment complexes are booming and there are now special laws to govern how they are run. These are the most significant changes to strata title laws since they were introduced in 1961. |
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| Lease costs shift to landlords. |
| Recent changes to the law make it an offence for landlords to recover lease preparation expenses to which they are not entitled. |
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| Real Estate Agents' retainers must be in writing |
| Despite criticism from judges that the law can be harsh and unfair in the way it operates against 'reasonable' agents who fail to have a written agreement with clients, there's no relenting: real estate agents must put their retainers in writing. |
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| Depreciating Assets: What can be claimed for rental property? |
| This is an issue close to the hearts - or at least the pockets - of many taxpayers, particularly given the large number of investors who own rental properties which are negatively geared. |
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| "Pink Slip" (Continued) |
| The Conveyancing (Sale of Land) Regulation 2000 is to be automatically repealed under the Subordinate Legislation Act 1989, on 1 September 2005. |
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| Land Tax |
| The State Revenue Legislation Amendment Act 2004 passed by the NSW Government in April this year, introduced significant changes to state taxes, including the abolition of the premium property tax. |
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| Pink Slips for an Asbestos-Free Home |
| It has been mooted that it should be mandatory that a type of "pink slip" for houses should be attached to a contract for sale of both residential and commercial premises. |
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| New Vendor Duty |
| Those selling property in NSW now face a new stamp duty introduced on 1 June this year. |
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| Home Building - More changes to the law |
| Amendments to the home building laws were passed almost two years ago, but they have only recently come into effect, and further changes have since been introduced. |
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| Conversion from Company Title to Strata Title - Is it Right for Your Company? |
| Conversion from company title to strata title can result in tangible benefits. Unit ownership via company title is an older form of unit ownership than strata title, and was the only way to own home units prior to 1961. The owner's right to sell or transfer his or her shareholding under company title is subject to company approval. Unfortunately, company title can deter prospective buyers. |
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| First Home Plus |
| New First Home Buyers Relief applies in NSW from midnight on 3 April 2004. The threshold has been increased to $500,000 phasing out at $600,000 for the purchase of new or established dwellings. The threshold for the purchase of land has been increased to $300,000 phasing out at $450,000. |
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| Auctions - Residential and rural property auctions |
| New controls regulating the activities of property agents have been introduced in New South Wales to address widespread concerns about misleading price estimates being given by agents, the competence of auctioneers, collusive practices and vendor bids at auctions. |
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| Neighbours - What can I do about overhanging branches? |
| Cutting back the branches and roots of your neighbour's tree that protrude on to your property would most usually require the consent of your local council under its Tree Preservation Order. |
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| HIH insurance applications close |
| If you hold an HIH insurance policy and want to lodge a claim, you have another 6 months to 27 February 2004 to lodge an application with the HIH Claims Support Scheme. |
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| Sub-Divisions - When what you see is not what you get! |
| A recent court decision has highlighted the need for careful searches of local council records before entering into a contract for the purchase of land. |
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| Caveats and Lapsing Notices |
| Builders, land purchasers and financiers often take caveats against land to secure the obligations of the land owner. The land owner can lodge a "Lapsing Notice" at Land & Property Information. |
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| Regulating Auctions |
| The Property, Stock and Business Agents Act 2002 (NSW) ("the new Act") comes into effect on 1 August 2003. |
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| Leases repudiated without notice |
| Due to the recent decision of Batiste v Lenin in the NSW Court of Appeal, it now appears that tenants may repudiate a lease even though no dispute notice under Section 129 (of the Conveyancing Act 1919 (NSW)) complaining of the misdeeds was served. |
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| Your neighbour can not infringe your house/building's right to support |
| A recent amendment to the Conveyancing Act 1919 has replaced the common law right to support with a statutory duty of care. |
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| Land Tax Time |
| The NSW Office of State Revenue (OSR) has announced the due date of lodgment of land tax returns for the 2002 land tax year to 30 April, 2002. |
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| Byron Shire in the Sewer |
| The recent case Byron Shire Council v Vaughan and ors highlights the importance of pre-purchase inquiries and searches including identification surveys. |
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| The Effectiveness of Testamentary Trusts Following the Ralph Report |
| Trusts, including testamentary trusts, may be affected by the current overhaul of the taxation system. Peter McNamara summarises the current position. |
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| Wills and Superannuation |
| Clark McNamara Lawyers can advise you on the terms of a will to ensure that your assets are distributed as you want and without hidden costs. Consider this likely scenario. |
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| Your Prospective Inheritance Could be Divisible in the Family Court |
| A person who expects to inherit property under the will of someone who has not yet died may find that the prospective inheritance will now be taken into account in the Family Court. |
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| GST and Property Development |
| A seminar presented by Paul Clark to members of the Property Council of Australia (NSW Division). |
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| Avoid Being Gazumped |
| The Sydney property market is currently very strong. You will need to be prepared, when entering the market, to make an offer and exchange contracts as soon as possible to avoid being gazumped. |
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| Is the Government one of your Beneficiaries? |
| Jack was a smart businessman. His business affairs were cleverly structured. He and Pam were both professionals. Pam had worked to her late 30’s when the first of their three children were born. Unfortunately the one thing Jack had overlooked when he died suddenly was reviewing his Will. |
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| Buying a Property |
| A checklist of the steps to be carried out by purchaser, and purchaser's solicitor when selling a property. |
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| Property Enquiries |
| Property search information and pricing. |
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| Selling A Property |
| A checklist of the steps to be carried out by vendor and vendor's solicitor when selling a property. |
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| How our Standard Will Works |
| A diagrammatic description of Clarks' Standard Will. |
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| Testamentary Trusts and Tax Concessions for Minors |
| This simple drafting tip may lead to a tax concession. |
