Newsletter - Summer Edition Feb'04
The Subdivision Act regulations require re-instatement Insurance for all units which share common property or where there are allotments built on several levels. If the units are on a single level then the owners of the units can resolve, by way of a special resolution at a General Meeting of the Body Corporate, to allow independent insurance for each unit.
However, owners cannot escape Public Liability Insurance. This is compulsory. The situation is that any purchaser who discovers that Public Liability does not exist can avoid the contract for the purchase of the unit at any time up to settlement. The vendor does not even have to disclose any problem other than the fact that there is no Public Liability Insurance.
Most Leases include an option granting a right to the tenant to automatically receive a further Lease once the term of the initial Lease has expired.
The Lease will usually require the option to be exercised 3-9 months before the date that the new Lease comes into existence. It is crucial that the tenant make it completely clear that the exercise of option has occurred.
The use of correspondence which includes words such as "I intend to exercise the option to renew the Lease;" or "I would like to exercise my option to renew the Lease" are ambiguous. It is important that the tenant uses a direct statement such as "I exercise my option to renew the Lease".
You might think that the expressions in the first two examples are virtually the same as in the third example. In both cases it took a Court to determine, on the facts of the matter, that this was the case. In both cases the use of direct language would have avoided the necessity of the Court appearance.
All Superannuation Funds allow members the right to determine who amongst their immediate family and dependents have the right to receive the benefit of the member's superannuation entitlements. This is done by signing a Death Benefit Nomination form which means that the superannuant wants the Trustees of the Superannuation Fund to distribute monies in accordance with a given direction. These nominations as with every other aspect of the affairs of the Superannuant should be reviewed on a regular basis - say every 3-5 years.
Parents give generously to their newly married children eg. to assist in the purchase of a house. Those parents rightly become concerned in the circumstance when their child's marriage ends that the gift becomes part of the property in dispute between their child and the spouse.
The matter is best resolved by making it clear at the time of granting of the funds that moneys are provided by way of a loan. This should be done by the preparation of a simple loan document which is signed by the parents, their child and the new spouse.
The document will specifically state that the money is repayable on demand. That demand will, of course, never be made unless the child's marriage, regretfully, ends.
Many purchasers are now using deposit bonds in purchasing units/apartments off the Plan. This allows their cash to remain available to use for other purposes. A deposit bond is a written guarantee for the deposit which is given to the vendor in place of the cash. It is usually issued by an Insurance Company or a Bank which charges a fee of about 1% of the value of the property. A Deposit Bond is very useful when the time of completion of the new property may be several years into the future.
Of course the purchaser will have to pay the whole of the purchase monies at settlement.
Until recently it has always been held that when a business changes hands with no change to staff arrangements then the retained employees were treated as if their situation remained unaffected.
A recent case has changed this situation. Employees may be entitled to severance pay even though their employment is unaffected by the changes to management. This decision is being appealed to the High Court.
The Federal Parliament has enacted legislation to try to reduce the level of unsolicited emails and SMS text messages.
The legislation cannot work for messages that originate overseas. However, messages with an Australian link which contain a commercial purpose (eg. selling a product or service) are affected. It will be OK to forward factual information about the product with identification to identify the source of the information.
RECENT CHANGES TO THE REAL ESTATE AGENTS' ACT
A selling Agent must estimate the selling price of real estate before obtaining the Vendor's authority to sell. The Agent may not advertise the selling price for less than the estimate. He can, if the estimate is low, amend that estimate in his advertising. He then faces the danger of being caught by the misrepresentation provisions of the Trade Practices Act and the Victorian Fair Trading Act.
Another issue is when Estate Agents advertise the property for a much lower price than that which will be accepted at the auction. This is a misrepresentation. There are now 2 cases before the Courts where Agents have been charged for this form of misrepresentation.
Another major change is about to occur in the purchase of dwellings. In the past there was a 'cooling off' period for the purchase of a property if the value of that property was less than $250,000.00. From February 1, 2004 the 'cooling off' provision applies for all dwellings. There are exceptions and these include purchase at public auction and purchase of commercial, industrial or farming properties. Purchasers who obtain prior legal advice also lose their right to 'cool off'.
I would like all readers of this Newsletter to note that while I believe the content to be accurate and correct, this does not mean that, on its own, it can be relied upon as legal advice. If you have a problem which involves any of the issues contained in this newsletter then please contact me to discuss that problem.