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Nov 21
Property-Law-Act

Property Law Act 2023

By Articles, Property Law

PROPERTY LAW ACT 2023 Queensland

The Property Law Act 2023 (“the Act”) passed the Queensland Parliament on 25 October 2023. The Act will replace the Property Law Act 1974 (Qld) and aims to simplify, streamline and modernise Queensland’s property laws, better facilitate e-conveyancing and electronic transactions, and remove outdated provisions.

The Act has not yet commenced but will take effect on a date to be fixed by proclamation, which may be several months into the future.

The Act will have implications for a range of property matters, including conveyancing and commercial leasing. It is expected that contracts used for the sale and purchase of land will also be updated as a result. The Real Estate Institute of Queensland has indicated it will be updating its contract pro formas before the Act commences and it will be important for all users of these contracts to ensure they are using the correct version once the Act commences.

Some key features of the Act include:

  • A new seller disclosure regime;
  • Updates to reflect the use of electronic conveyancing;
  • New delay events provisions;
  • Changes to the way easements bind successors in title; and
  • New rights for buyers where there is destruction of or damage to a dwelling house.

We consider each of these aspects in more detail below.

Seller disclosure regime

A seller disclosure regime has been introduced for the sale of both residential and commercial property in Queensland. Before a buyer signs a contract of sale, the seller will be required to provide a disclosure statement, together with certain other documents (“prescribed certificates”) in relation to the property they are selling. There are certain exceptions, such as where the seller and buyer are related and the buyer gives a waiver notice. The buyer may be entitled to terminate at any time before settlement if the disclosure documents are not provided (or not provided correctly), or there is a mistake or omission that relates to a material matter, which the buyer was not aware of and had they been aware, they would not have entered into the contract.

Modern conveyancing processes

Provisions relating to the settlement of contracts have been updated to reflect modern conveyancing processes, including electronic conveyancing.

Delay events

Provisions dealing with a delay of settlement due to an adverse event (such as weather, public health emergency, act of terrorism, war or similar event) now apply. These provisions largely reflect the current ‘delay event’ provisions in the REIQ contracts. New provisions also relate to inoperative computer systems for electronic conveyances on the date of settlement.

Easements

A covenant in a registered easement will bind both the grantor and grantee of the easement, and each of their successors in title, unless the covenant is expressed to be personal to the grantor or grantee.

Destruction of or damage to dwelling house

Buyers will now have a right to rescind a contract by notice if, after entering that contract, the residential dwelling is damaged or destroyed and is unfit for occupation. This right can be exercised until the earlier of settlement, the buyer taking possession, or the seller restoring the dwelling.

OMB Solicitors has a team of experienced property lawyers Gold Coast that can assist you to navigate these legislative changes. If we can be of assistance, please give us a call on (07) 5555 0000 or email us at info@omb.com.au.

Jul 25
Its just a simple agreement right?

Its just a simple agreement right?

By Articles, Family Law

It Just A Simple Agreement: Financial Agreement

“I just want a Financial Agreement, it’s just a simple one to say that we will each keep our own assets”.

If I (and most family lawyers gold coast I am sure) had $1 for every time they had a client say this to them, we all would be retired!

To put it simply, there are no “simple” Financial Agreements and particularly no simple Financial Agreements that are being entered into at the commencement of a relationship.

To illustrate just how and why these agreements need to be carefully considered, properly drafted and advised upon, below are just some of the many questions (and questions within questions) and queries that I have when discussing Financial Agreements with a client:

  1. Will your assets be kept strictly separate? Will you keep your financial contributions towards these assets strictly separate? Do you now or do you intend to acquire any assets together (this can be any form of asset, from a property to a car, caravan, shares or investments)? If so, what will be the financial arrangements for the acquisition and ownership of this asset?
  2. If there are co-owned assets, how will these be divided if you separate? How gets to keep them? If there is an argument about who gets to keep them, how will this argument be resolved?
  3. Will the agreement cover all assets in their entirety? Or is the intention of the agreement just to “quarantine” certain assets from a claim upon separation? If only certain assets are dealt with then the specific assets not covered will need to be dealt with in accordance with usual family law principles and as such you may end up in negotiations regarding these matters. If you want to specifically avoid all forms of family law application, then the agreement must cover ALL assets.
  4. If there is to be a payment made at payment is to be made from one partner to the other upon separation then how is that calculated? Is it by reference to years of the relationship or number of children? Is there a sliding scale to a maximum amount? Is it based on dollars or percentages? Does the dollar amount increase over time? Is that increase based on CPI or another figure? When is the payment due, is it in one lump sum or over time? What are the consequences of non-payment?
  5. Do you plan to have children? If so, what do you intend to do with the terms of the agreement at that time? Does it terminate or do you put in place different payment arrangements? How will you re-consider the terms of the agreement at that time to consider what is fair and reasonable?
  6. If there is a significant difference between one partner’s income and financial position, will there be provision for support for the lesser financial spouse if the parties separate? If so, how is that to be calculated? How long is it to go on for? Will it decrease over time?
  7. What about your pets? How will they be considered in the agreement? Who will have possession of them at separation? Will you have shared possession? How will their food and veterinary expenses be dealt with?
  8. Do you wish to trigger a review of the agreement? If so when? Is it by reference to years, or events (such as children being born or houses being purchased)?
  9. Do you anticipate receiving an inheritance in the near future? Is this to be quarantined? What will you do if the funds are intermingled with joint assets?

So if you are considering a Financial Agreement at the commencement of your relationship, please consider it as a detailed and complex document that needs careful consideration and most importantly, expert legal drafting.

Taking the time to get proper legal advice about these types of agreement is of utmost importance. Utilising a specialist Family Lawyer is the best way to ensure that your agreement is drafted as you want it to be and is carefully considered and deals with as many of the “ifs, buts and maybes” that could arise.

The specialist family law team at OMB Solicitors can guide you through this process to ensure that your needs are met and your agreement drafted promptly and properly.

Jul 06
Richard Dawson - Estate Planning Lawyer and Partner at OMB Solicitors

Happen that Make it Necessary to Update Your Will

By Videos, Wills and Estates

In this video, OMB Solicitors Partner and Wills & Estates lawyer, Richard Dawson, shares the things that happen that make it necessary to update your Will and your Power of Attorney.

Transcript

Necessary to Update your Will and your Power of Attorney

Hi there, I’m Richard Dawson, the partner in the estate team here at OMB. Today I’m going to be talking about have you updated your will and power of attorney? And is it time for you to do so.

If you haven’t looked at it recently, I’d like you to think about a number of circumstances which might give rise to whether or not you should update your will and power of attorney.

For example, have you actually looked at it in the last five years? Just imagine what you were doing five years ago and I guess everyone life changes.

But what happened five years ago that is different to today, and should that be a circumstance where you would update your will? Have you married in that time? Have you divorced in that time? Have you found yourself a new partner? Have you got more children or grandchildren? And are they named in your will?

You might also consider the beneficiaries and the executors who are appointed in your will and the attorneys appointed under your enduring power of attorney, and ask yourself, are those people the most appropriately named persons to hold those positions under your current circumstances?

If the answer to that is no, then it’s definitely a time for you to update your will and or your power of attorney. So what I’m asking you to do is go and revisit, have a look at your current will and power of attorney and if it needs updating, just reach out to us and we’ll take it over from there and we’ll keep it as simple and straightforward process as we possibly can.

Thanks again for listening.

Jul 05
Simon Bennett - Partner at OMB Solicitors

What You Need to Know about a “Put and Call Option Agreement” in Property Matters

By Property Law, Videos

In this video, OMB Solicitors Partner and Accredited Property Law Specialist, Simon Benett, talks about what you need to know about a “put and call option agreement” in property matters.

Transcript

Know About A “Put And Call Option Agreement” In Property

Hi there, Simon Bennett from OMB Solicitors. Today I wanted to have a chat to you about a document called a put and call option agreement, now you may have heard this term, but you may not fully understand what it does or why you might use it.

So a put and call option agreement generally refers to an agreement between two parties, and let’s take a property transaction, for example, where one party, the seller, might grant a put and call option to a buyer who’s looking for some flexibility.

They may be looking for some flexibility to conduct due diligence, they may be looking to on sell the property or something of that nature or even delay the actual contract date for one reason or another. Now, the put and call option agreement provides that flexibility, but it also provides certainty, and that’s really important.

So how does it work? Well, one party grants a call option, so the seller grants the buyer a call option, where the buyer can call on that option so they can affect that option to force the seller to enter into a contract, which is all predetermined and usually attached to the agreement to sell the property, if we’re dealing with a property transaction to sell that property to that buyer.

Now, if the buyer does not exercise that call option, the seller has certainty because they may exercise the put option which has been granted to them by the buyer and the put option is an option to force a sale of the property by the seller to the buyer. So the buyer will be forced to purchase the property.

So the certainty comes in that if one of the parties requires the transaction to proceed and enter into a formal contract, it will happen. That is, either the buyer by way of the call option or the seller by way of the put option, and only in the event that neither party wished the transaction not to proceed would it not proceed.

So there’s the certainty and the flexibility is until such time as that option is exercised, we do not have a formal contract, and as I said, there is a number of different benefits and uses for that and if you’d like to understand a little bit more about how you might use a put and call option, give us a call at OMB property team and we’ll be pleased to give you a hand.

Apr 11
cameron - OMB Solicitors

Development next door? Know You Right

By Ligitation, Videos

In this video, OMB Solicitors’ Partner, Cameron Marshall, talks about what you need to do and how Gold Cost Lawyers can help when you as an owner of land have a development happening next door and you get a request for access to your property.

Transcript

Good morning, my name’s Cameron Marshall, I’m a partner at OMB Solicitors. Today I’m going to talk about what happens when you, as an owner of land, have a development happening next door and you get a request for access to your property.

It’s a very common occurrence on the Gold Coast, development is what built this city and it will continue to do it in the future. That said, it when someone comes and asks you for access to your land, what do you do? Well, there’s a few things you can do, and I’m going to go through those today with you.

So the first thing is don’t panic, okay? It’s a very common occurrence of a developer wanting access, especially for swing plans for cranes over a neighbour’s land, okay. So first thing, don’t panic, it’s common. We at OMB can help you out and deal with it.

That brings me to step two. What do you do? You come and see OMB Solicitors and we will help negotiate what they call a access deed if you wish to give access to your property and that brings me to a little bit of the law on this situation is, firstly, you own your land, you don’t have to give access to the developer next door if you don’t want to.

I’ll raise one caveat with that, there is legislation, the Property Law Act, which does provide that a landowner is able to seek access through the access of the legislation, if it is essential for the use of their property to have to be able to access your land, okay.

So there is a provision in the law that allows access to be sought through the courts, but that’s granted only after a certain process is satisfied and criteria are ticked off. So I’m not going to go through that today, but I just wanted to step one is you don’t have to give access. But there are some caveats to that statement.

The next part I wanted to discuss is why would you give access to a property owner wanting access to your land? Well, there’s a few reasons. The first one, and it’s an important one, is it gets you a seat at the table, so to speak, of the development next door. So a tenant of law that goes back for hundreds of years is a landowner can do what they want with their property, okay.

So if someone’s wishing to build a development next door to your property, as long as it’s compliant with the appropriate approvals, they can do so. You have limited right of objection to what happens on their land because it is their land.

However, if they want access to your land, then you get a seat at the table to be able to have a say in things that you otherwise may not get a say in. I’ll give you an example, work hours. The development approval will have a work hours from the council.

You may decide if you, say, operate a business or if you’re a body corporate, that you may wish for a little bit quieter period from a 6:30 start that’s allowed and want to push it out to say, 7:30.

You could negotiate with the landowner next door to be able to be a part of the access provisions that those hours of work are changed, otherwise you wouldn’t get it. Another thing you normally would be able to negotiate is an indemnity.

If something happens and damages your property, you get a right of indemnity, usually under the deed of access as a condition of you providing access to the property.

That means if something happens to your land or your property, you’ve got an easier right of compensation and a right of recovery against the developer next door.

Another reason is compensation, compensation can be sought and asked for and is commonly given when a developer is wanting access to a property. Of course it can’t be unreasonable, but it allows some type of compensation for you giving up the right of the use of your land for a period of time.

There’s also insurances cover, you can make sure that are taken so the developer has the appropriate cover in the case that something goes wrong, hopefully it won’t, but if it does, you want to ensure that they’ve got appropriate cover.

There’s other things that can go into the deed, but generally it is a way of ensuring protection for your property as a trade off for the use of your land for a period of time.

It’s not an indefinite period of time, of course it’s up to you how long it extends, but it’s usually for the extent of the development. So if a landowner next door is wanting access to your property, don’t panic, come and see OMB solicitors and we can walk you through the process without stress.

Thank you.

Apr 10
Harley Wilkinson

What you need to know about contesting a Will

By Videos, Wills and Estates

In this video, Harley Wilkinson, a Solicitor at OMB’s Wills & Estates team, discusses contested estate matters in family provision applications and how our Gold Coast lawyers can help you with your estate planning matters.

Transcript

You Need To Know About Contesting A Will

Hello, my name is Harley Wilkinson, I’m a solicitor in the wills and estates team here at OMB. So I just wanted to talk very quickly about contested estate matters and family provision applications.

So while a lot of what we do here at OMB in the wills and estates team is giving advice about estate planning and estate administration, both in Queensland and New South Wales, we also give advice to executors and beneficiaries in a range of contested estate matters.

Whether you’re in Queensland or New South Wales, an eligible person is able to contest an estate by making a family provision application with the relevant Supreme Court. However, not everyone can make a family provision application.

There are certain eligibility criteria that apply, in New South Wales for example, firstly, you’ve have to be an eligible person, and I’ll get to that in a minute. Secondly, you need to have been either left out of a will or not been left adequate provision, or not received what you thought you might be entitled to.

So eligible persons typically include a spouse and children, although there are certain other categories of people that also fit that description and are eligible to apply.

So the process of applying for further and better provision, making family provision application in either the supreme or New South Wales Court can be confusing and complicated, and there are certainly some differences with respect to the law and the procedure between Queensland and New South Wales.

So there are some strict time limits that apply both between the New South Wales and Queensland jurisdictions, and there are some differences. So rather than wait and let it go, give us a call, get some advice, we can let you know where you stand and what the process is.

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