Trusts and family law disputes
Date: Jul 06, 2015
Many family law disputes involve issues relating to various trusts. Family lawyers are often approached by clients who are either trustees and/or beneficiaries of a trust. Often their children and other family members are beneficiaries as well.
Contract: the rules of the game
Date: Jun 15, 2015
The traditionally accepted view of law is that it is an independent set of rules governing society routinely applied by reference to existing precedent. The law is considered autonomous and distinct from custom, morality, religion and politics. In western civilisations, legal systems are built on liberal foundations.
Private contractual arrangements and government intervention
Date: Jun 12, 2015
The law was not constructed on a bare canvas, but on value-laden foundations. Ordinarily, when a house is built on a sloping block, the nature of that slope determines the type of structure erected upon it. The structure is changed to suit the conditions of the landscape, not vice-versa. It is no different with the law.
Religious officers, contracts and legal relations
Date: Jun 11, 2015
In commercial transactions, the onus of proving (on the balance of probabilities) that a contract does not exist rests with the party disputing what courts presume to be an agreement intended to have legal force. For disputes concerning family members, courts take the viewpoint that “each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted”.
Consideration in contract law
Date: Jun 10, 2015
The doctrine of Consideration is concerned with the price paid for a promise. Consideration is something of legal value given in exchange for a promise.
A contract that is not a contract
Date: Jun 09, 2015
Equitable Estoppel is a cause of action that protects parties’ reliance on promises which have the appearance of a contract, but which do not satisfy the elements needed to create binding legal relations, that result in detriment to one party. The case of Waltons Stores (Interstate) Ltd v Maher is a landmark case which has greatly affected the common law of contract.
PPSA Protection and Perfection
Date: May 25, 2015
Despite the transitional periods having expired last year, the requirements (and existence) of the Personal Property Security Register (PPSR), created pursuant to the Personal Property Security Act 2009 (Cth) (PPSA), remain unknown to many consumers and suppliers. If you are involved in business or personal transactions regarding the provision of goods on any terms other than a cash on delivery basis, or you have a line of credit with suppliers, or provide a line of credit to others, you should familiarise yourself with the PPSR and PPSA.
Rescinding ‘off the plan’ contracts - the Rule in Flight v Booth
Date: Sep 14, 2014
Purchasing a property before it is built, also known as purchasing ‘off the plan’, can be a rewarding yet risky enterprise, especially if the finished product isn’t the same as what you contracted to buy. The contract may provide for certain limited circumstances which allow you to rescind (revoke) the contract. There is, however, also some legal rules which may be able to help. One such rule is called ‘the rule in Flight v Booth’. The NSW case of Kannane and Ors v Demian Developments P/L  NSWSC 1193 sets out when the rule in Flight v Booth will apply.
What are the standard terms that should be included in a rental agreement?
Date: Sep 01, 2014
There’s no escaping the fact that property prices are rather high in Australia. Therefore, a large number of people will be involved with the rental market, and because there are probably more renters then properties to lease, it’s important that renters are aware of their rights, especially when it comes to what their residential agreements should entail.
What is the difference between an Owner’s Corporation and Executive Committee?
Date: Jul 09, 2014
The success of the strata title system in NSW lies in its unique arrangement of individual ownership and communal control and administration. The most important elements of the system you need to understand are the roles and responsibilities of the two bodies known as the ‘owner’s corporation’ and the ‘executive committee’.
How can an owner’s corporation enforce compliance with by-laws?
Date: Jul 07, 2014
By-laws which govern the activity and behaviour of owners in and around their strata title property can be difficult for owners to accept, especially if they are accustomed to living in stand-alone properties with far fewer restrictions on their activity. However, it is important they are generally adhered to, in order to maintain the integrity of the strata scheme, the value of the properties contained within it and the peaceful and quiet enjoyment of all members.
What duty of care do property owners owe to visitors?
Date: Feb 03, 2014
In law school, one of the first cases many students would encounter is that of Donoghue v Stevenson  AC 562, which was a matter that established the principle that one person owes another a duty of care – paving the way for the concept of modern negligence.
Residential Tenancy Agreements: The Bitter End
Date: Jan 01, 2014
A number of different circumstances can give rise to the end of a residential tenancy agreement; and this piece will outline the general ways in which your rental agreement can come to an end.
An introduction to mortgages and loan contracts
Date: Dec 11, 2013
By understanding what a mortgage contract entails, may assist you if you’re considering purchasing a property, or by having a greater understanding of what the ‘right of equity of redemption’ means – and how it may apply to you.
Why its important to determine your tenancy status if an issue arises
Date: Oct 01, 2013
In many Australian capital cities, the high cost of living means that many people have to share the costs of renting with others. Therefore, it’s essential that you’re aware of your tenancy status in the event that if any issues arise, you’ll have an understanding of the rights and remedies available whether you’re a boarder, lodger, sub-tenant, or co-tenant.
How do the concepts of possession, ownership and title impact property rights in Australia?
Date: Sep 04, 2013
The practice of law is complex and matters can turn on the meaning of a sentence, or even a word. For instance, when looking at ‘possession’ and ‘ownership’ in relation to property, the majority of people will assume that both terms mean essentially the same thing, and in everyday usage, yes, that would be the case. However, when looking at possession, ownership and title to property via a legal prism, there are some distinctions between possession, ownership, and title.
How should landlords deal with tenants in all phases of the rental relationship?
Date: Aug 08, 2013
Australian property prices may have dropped over the past few years, however, the rental market is still robust in major metropolitan areas such as Melbourne and Sydney. Since it’s a landlord’s market out there, it helps that a landlord is diligent when it comes to their property, because you don’t want your investment to turn sour. So what can landlords do to minimise headaches? Here are some general tips that may assist in maintaining the rental property as a valuable asset.
Eviction proceedings: What rights do renters have?
Date: Jul 01, 2013
As the number of Australians engaged with the rental market increases, it’s unsurprising that issues can sometimes arise between landlords and tenants. Ideally, any difficulties between a landlord and tenant will be resolved amicably. However, there may be times when an issue is so serious, that a landlord may feel the only option available is eviction. So the obvious question is: Do landlords have the power to evict a tenant?
Shared housing: Am I a boarder, lodger, sub-tenant, or co-tenant?
Date: May 02, 2013
It’s challenging enough for anyone to share a rental property with a stranger without also having to consider the legal ramifications of living in a shared household. However with that being said, having an understanding of the type of tenant you are is essential due to the fact that if a problem does arise with your housemate, the rights and remedies available will be dependent on whether you are a boarder, lodger, sub-tenant or co-tenant.
What happens to land if there is a caveat?
Date: Mar 05, 2013
As a valuable commodity, title to land and the protections it confers via the Torrens system is extremely important. However, what about unregistered interests in land, more often referred to as caveats? What effect do caveats have on the land?
LITIGATION - Frequently Asked Questions
Date: Dec 04, 2012
Deciding how to settle a dispute - Choosing a process - Commencing litigation - Pre-trial procedures - Discontinuance or withdrawal - Enforcement of judgments - Costs of Litigation - Time limits - Lawyers
How breaches of duty can be committed against property
Date: Oct 01, 2012
Possession under property law is a fundamental concept, and for the most part if we have a particular good, or land under our control, we would generally consider the property ours. However, what happens if there are multiple claims to property? How does the law deal with competing claims to possession? Possession is considered as such an essential property right, that a person who is found to be wrongly interfering with another person’s right to possession, will be committing a breach of duty under the law. The most common torts in regards to interference with possession are trespass, conversion and detinue. Each tort has different elements, and this article will give readers a brief overview of how a breach may occur in regards to the various torts.
Zoning laws for home based businesses
Date: Jul 16, 2012
Many budding entrepreneurs planning to launch a business from home may not be aware that strict requirements exist regarding the types of commercial activities permitted in a private residence and these obligations are generally set-out in council rules and regulations, as well as State and Territory legislation. Matters that can be covered can relate to zoning and development, pollution, health and safety, noise, energy use, parking and any other laws related to environmental impact.
Some things to be aware of when entering into a commercial lease
Date: Jun 01, 2012
Most people who sign a residential lease will easily understand what they’re signing up to, as well as the associated rights and obligations. Commercial leases are no different in that the terms of the lease must easily understood and that all of the essential elements of the agreement must be outlined in the lease. If you’re about to sign a commercial lease, there are fundamental conditions in a commercial leasing agreement that should always be evident in order to ensure that you are protected in the event that an agreement has gone awry.
Environmental Protection and Property Owners
Date: May 02, 2012
Environmental protection is a somewhat nebulous concept in property law. Generally speaking, the term refers to the enforcement activities of the Environmental Protection Agency in each of Australia's states and territories (or, in the case of Queensland, the Department of Environment and Resource Management). The scope of these laws is wide and not restricted to land owners. However, this article outlines a few general points that can help you in determining when environmental laws and regulations could apply to your situation.
Co-ownership of property: The elements and requirements
Date: Apr 01, 2012
It’s only logical that people who are either married, in serious long term relationships, or are just looking for an investment opportunity, will consider pooling their resources together in the purchasing of property. At common law, co-ownership of land can either be achieved either as a tenancy in common or via a joint tenancy. Depending on the status of the joint ownership of the land, different rights and duties will arise in relation to each category of property co-ownership.
Property Ownership and Registration in Australia
Date: Feb 03, 2012
Australia has a robust and comprehensive system of property registration. This system also dictates that extent of property ownership, such that a person obtains their title to land (meaning that they own it) through registration, rather than having to register their ownership as an extra step (much like you can own an unregistered car). This article will focus on the Torrens title system, although aspects of this discussion apply equally to strata title in large developed communities. In addition, the position of land not under the Torrens title system is considered.
Rights and responsibilities of a tenant and landlord within a leasing agreement
Date: Dec 01, 2011
Many Australian visitors will probably be all too aware that property prices in the country are rather expensive, and the dreams of home ownership may be out of reach for some. As a consequence, renting has become a viable alternative for those who are unable to afford buying property, and furthermore, it’s conceivable that some landlords and tenants may not have a complete awareness of their rights and obligations.
Property law: Caveats and competing priorities
Date: Nov 02, 2011
One of the enduring dreams for Australians is property ownership, and therefore, it is of little surprise that property interests in land are so fiercely guarded. The array of proprietary interests can be mindboggling, and can include tenancy, sub-tenancy, mortgages or fee simple, just to name a few of the different proprietary interests that exist. Due to the myriad property interests in land which are available – and coupled with how jealously people guard their interests – it is perhaps of little surprise that disputes in relation to competing interests in land will arise. It is not uncommon for numerous valid interests in land to be held simultaneously by different parties, therefore, how are disputes resolved in such circumstances? If there are a number of valid interests in land: Who would the law consider as having the better interest?
Buying a property: the Australian Dream
Date: Sep 15, 2011
Claiming your piece of the ‘Australian Dream’ is becoming harder and, with more at stake than ever, buyers should be aware that it will not be always easy nor problem free. Your best defence in keeping the dream from becoming a nightmare is to simply arm yourself with the best possible information and advice.
Requisitions on Title
Date: Sep 10, 2011
If you are purchasing a property, as part of acting on a conveyance your lawyer will make enquiries from the vendor about the title to the property. These are called “Requisitions on Title”.
Ongoing Refinement of LEP instruments
Date: Sep 05, 2011
The importance of Local Environmental Plans (LEPs) has become evident over the last decade, with increased development, population shifts, changing weather patterns and extreme weather events. LEPs provide shape and guidance for overseeing the way land is used in the State and for determining decisions made with regard to the estimated $20b worth of local development in the State’s annual budget. LEPs set down zoning and development controls and afford communities a way to look at and discuss future planning and environmental directions.
Erosion Management on the NSW Coast
Date: Aug 02, 2011
Under the NSW Coastal Protection Act, which makes provisions for the use and occupation of the coastal region, the NSW government provides for the protection, preservation and sustainable use of coastal regions. On 21st October 2010, an Amendment Act was passed through parliament, amending several pieces of legislation pertaining to the coastal environment. This amendment affects the Coastal Protection Act, the Local Government Act 1993, and the Environmental Planning and Assessment Act 1979. The primary intent of the amendment is to improve arrangements for dealing with coastal erosion. Recent weather events, escalating storm activity and flooding, and rising and changing sea levels have made it essential that the effects of erosion on the coastal strip and associated regions be addressed. This framework legislation does not outline specific solutions for individual areas, but rather provides a structure for management of a range of issues.
Senior Citizens and Stamp Duty Exemptions
Date: Jul 05, 2011
If you are a Senior who owns property in New South Wales or is thinking of purchasing a property in New South Wales you need to be aware of the new legislation passed through Parliament exempting you from the payment of stamp duty in certain circumstances.
Securing Progress Payments in the Building & Construction Industry
Date: Feb 03, 2011
An Act to amend the Building and Construction Security of Payment Act 1999 was assented to in November 2010. It fine tunes the way in which the problem of progress payments with regard to construction work under contract was addressed, and takes a further step towards ensuring that progress payments will be held by the principal contractor.
What do I need to know about Dealing with Asbestos
Date: Nov 02, 2010
If your home was built or renovated before the mid-1980s, the most likely scenario is that you are dealing with some asbestos in the building material. Asbestos was commonly used in cement sheeting (fibro), drainage and flue pipes, roofing, guttering and flexible building boards, and in brakes, clutches and gaskets.
I don't want to get gazumped
Date: Oct 07, 2010
It is unfortunately not uncommon for people to find the home they want, have an offer accepted, and then before contracts are actually exchanged, another buyer sneaks in ahead of them.
Strata Levies: Options for Recovery
Date: Sep 20, 2010
Each lot owner in a strata plan is required to pay levies (usually due quarterly) which make up the administrative fund and sinking fund of the strata scheme.
Tenants Rights and Eviction Notices
Date: Sep 02, 2010
When you are renting a residential premise, it is important that you are aware of the legal requirements for evicting a tenant under the Residential Tenancies Act 1987 and Residential Tenancies Regulation 2006 ("the Act").
Security for Costs
Date: Aug 08, 2010
The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice.
Compulsory Land Acquisition
Date: Aug 03, 2010
This article considers the process of compulsory land acquisition. In some other jurisdictions (eg the United States) this is known as the concept of "eminent domain". Essentially, compulsory acquisition is the process by which a government body acquires land for the benefit of the public. This acquisition may be by voluntary agreement with the owner or through a compulsory acquisition.
Insurance is so confusing
Date: Apr 03, 2010
Any home-owner is going to find themselves dealing with numbers of different types of insurance policies, and for many this is a jungle. Let us have a look at the different types of insurances which may be important to home owners.
What is property?
Date: Feb 02, 2010
When we talk about property we usually use the word in a general sense - meaning anything someone owns. Often we use the word when talking about real estate - "We have a property in Queensland", or referring to a rural farm.
Property Lines, Fences & Trees
Date: Jan 02, 2010
In Australia, most of the laws that govern property boundaries are determined by state legislation and vary from state to state. Fencing regulations often vary between local, shire and regional councils. Housing estates or residential communities may also have specific regulations about fencing. For up-to-date information, it is advisable to contact your local council or a solicitor in the state where the property is located.
What is a mortgage?
Date: Dec 02, 2009
In days of the GFC, we hear a lot about interest rates, mortgagee sales and the like, so what exactly is a mortgage? A mortgage is a document which secures a loan against property and is usually registered with the Land Titles Office.
Leasing a Commercial Property
Date: Nov 01, 2009
In recent newsletters we have had a look at leasing or renting residences and retail premises. The other type of properties often leased are commercial or industrial premises, and typical of these will be office premises, industrial units and workshops of various kinds.
Leasing a Shop
Date: Oct 03, 2009
The vast majority of shops, whether they be in a large suburban shopping centre or in a suburb, are owned by the operator, and in many cases the premises are leased from the land-owner. The Retail Tenancies Act provides a code dealing with leases of retail premises, and is primarily designed to protect tenants.
Renting a home
Date: Sep 02, 2009
In New South Wales there are three main types of leases:- residential leases, retail leases and commercial leases. In this newsletter we shall look at residential leases, which are governed by the Residential Tenancies Act.
Just what is strata title?
Date: Aug 03, 2009
Strata title is a New South Wales invention, which was instigated by major property developers in 1960. The building of unit blocks was becoming popular, but there was then no means of giving buyers a Torrens title deed as they would have received if they had bought a free-standing home.
What Exactly is Conveyancing?
Date: Jul 02, 2009
Conveyancing is a legal term for legal transactions involving real estate. It can involve buying and selling, financing, leasing and other areas such as subdividing and the creation of easements and covenants. Australia has one of the highest percentages of home ownership in the world, so many of us will be involved in a conveyance during our lives.
What on earth is an easement
Date: Jun 02, 2009
Our own Australian Torrens land title system is remarkably straight forward. You can look at your title deed, known as a Certificate of Title, and see who the owner is. Also listed on the deed are "Notifications" matters which affect the title, and the most common of these are mortgages, leases, easements and covenants.
Let the lender beware
Date: May 02, 2009
With a population which is aging, but is also mobile, more and more of us are giving Powers of Attorney, usually to partners or family. The usual Power of Attorney gives the attorney the power "to do on my behalf anything I may lawfully authorize an attorney to do". It also says, "This power of attorney is subject to the following conditions and limitations", and commonly the word "nil" appears there.
Date: Apr 02, 2009
One of the sad signs of the effect the Global Financial Crisis is having on Australia is the increasing number of people suffering "mortgage stress", and of mortgage foreclosures. In this Newsletter we shall have a look at mortgages, how they work and what you can do if you are facing difficulties.