I Am a Lawyer Practising in Commercial and Property Law in Qld, Ask Me Anything

Disclaimer:

You should seek legal or other professional advice before acting or relying on any of the content here or on the internet generally.

Edit: I thought it important to mention there are free legal advice clinics set up in Qld. See link below for locations:

http://communitylegalqld.org.au/

Edit 2: happy for anyone to PM me if they do not wish to air anything out over the internet.

Comments

  • +5 votes

    How do you think global warming will impact us in the near future?

  • +4 votes

    What do think about the proposed law that would allow the forced sale of unit blocks if 75% of owners agree?
    Can you explain how it might work it practice.

    • +2 votes

      I think there are both advantages and disadvantages to the proposed amendment to the BCCM Act. It is important to note that there are already laws in place which allow the sale of all units in a community titles scheme if all lot owners agree.

      Advantages to decreasing the vote to 75%
      -if the building is old and requires a lot of restoration work (increasing BC fees), the units can be sold in one line which will most likely fetch a higher sale price
      - obtain a better price on the sale (e.g. if there are 10 units in the CTS, sold separately you may receive say $275k but sold together in block, the block may receive $3mil / 10 = $300k)
      - ageing buildings get updates

      Disadvantages
      - our seniors who do not wish to move may be forced out of their homes
      - even if the BC committee did not receive 75%, they can still appeal to the district court for termination of the scheme.

      Please see link to QUT's suggested amendments to the BCCM Act here - http://www.justice.qld.gov.au/__data/assets/pdf_file/0003/33...

      •  

        I'm quite interested in this proposed change but want to know more detail. Say if there are 12 units in the building and I have 2. Do I have 2 votes?

        Is this change proposed in QLD only or nationally?

  • +2 votes

    Any tips for people starting a new retail business entering a lease?

    • +7 votes

      Are you purchasing a business or setting up a business in a retail shopping centre?

      Tips are to ask tenants in the centre who resembles the size and use of your proposed shop (discretely if you can) how much rent they are paying in rent which will give you a starting point on rental negotiations.

      Avoid giving personal guarantees and instead opt for provision of a bank guarantee only.

      Negotiate a rent free period for any fitout works you require.

      Unlike commercial leases, retail leases are governed by the Retail Shop Leases Act which contain minimum standards implied in a retail lease. It is a great piece of legislation for tenants.

      •  

        What is a common rent free period for a retail lease? Say if it's a standard 5x5x5 lease?

        Also, what is a common starting point for a negotiation so you don't come across as not serious about a retail lease? Let's say if it's advertise for $50,000/ year lease as an example.

        Is it more common to have a fixed increase in rent (say 5%) or CPI?

        Finally, when you renew, is there a possibility for the landlord to jack up the price by say 10-20% during "market review" given you have spent the money on reno and would probably agree to any price?

        Thank you in advance!

        • +1 vote

          For retail, I would aim to negotiate a six month rent free period (especially as its a 5 year lease in a retail shopping centre with 2 x 5 year options). Depending on the landlord, you may even negotiate a fitout incentive.

          There are various rental increase methods including fixed, CPI or the greater of CPI or fixed. In retail leases, they are usually fixed around the 4 - 5% margin.

          If the lease contains a market review on exercise of the option, then what usually happens is that the landlord gives you an 'estimate' of what they believe to be the market. You would give your estimate of the market, and if no compromise is reached, then it will get deferred to a independent retailer for determination.

          Tip: ask for a copy of the lease before you sign the heads of agreement and have a solicitor look over it.

        • +1 vote

          @shandawgg: Great advice, thank you!

          Btw, isn't heads of agreement "non-legally-binding"? So does it matter if I sign it before the lawyer looks at the lease? Most agents want you to sign the heads of agreement before giving you the lease to look at in my limited experience…

        • +1 vote

          @oztite:

          Caveat Emptor!

          Yes, do not sign until your solicitor checks it over. Some HOA's say no intent to create a binding legal relationship until both parties have signed a formal contract, others are silent.

          Youre right, the agent want you to make a commitment before signing the formal lease. From a solicitors position, it is really difficult to negotiate terms when your client has already signed the HOA saying otherwise.

    • +1 vote

      And consider an option to renew, noting that once the lease is registered the option to renew is part of the rights that are registered and therefore indefeasible, whatever that means.

      In some circumstances the option to renew can be very valuable.

  • +5 votes

    I'm currently squatting on some land … how long until I can claim I'm the lawful owner?

    • +3 votes

      For a claim for adverse possession to succeed there are a number of common law requirements that need to be met, typically the
      following common law elements are required:

      -Actual possession, such that the legal owner has a cause of action for trespass.
      - The occupier must act as though they own the property and use the land;
      - Continuous and uninterrupted, possession must represent continuous uninterrupted occupation and use of the land. Occasional activity interspersed by periods of inactivity fails the test of continuous and uninterrupted possession;
      - Hostile, possession must be adverse to the interests of the legal owner and without permission of the legal owner;
      - Exclusive, possess the land to the exclusion of the legal owner and not share possession with the legal owner;
      - Open and notorious, use the land in a manner so as to place the legal owner on notice that a trespasser is in possession; and
      - Time, a statute of limitations applies for a definite period of time which outlines the limitation of actions that can be taken. For adverse possession this represents the time period for actual, continuous, hostile, exclusive and open possession by the occupier and also represents the time period by which the legal owner can legally dispossess the trespasser. Around the globe, the required time period can vary from as little as 3 years to as many as 30 years or more

      • +1 vote

        How about if I rent a house, can I claim adverse possession after a period of time?

        •  

          No, you would have a lease interest which would be against point 6 (you need to be trespassing). Having a rental agreement gives you the right to be on the property.

          In today's age, squatters rights arise between homeowner and local councils. i.e. you maintain the small parcel of land next door which belongs to the council, exclude others from using the parcel, perhaps by erecting a fence, then make a claim.

        •  

          If you continue to possess, and do not pay rent, contrary to the landowner's intentions, then the limitations period for AP starts from when you stop paying rent. Then, after 12 years (limitation period in WA, for example), you can claim AP.

    • +5 votes

      Is that you Jimmy?
      I told you to clear out bro.

    •  

      I hope you are kidding. People who do this are the worst kind of scumbags.

      • +4 votes

        worst kind of scumbags

        As opposed to the good kind of scumbags?

      •  

        I hope you are kidding. People who do this are the worst kind of scumbags.

        What about the scumbug landlords that might cram 10 people into a home and perform minimal to no maintenance? I thought they'd be the worst kind

    •  

      I'm currently squatting over a hole in the ground, how do I prevent myself from falling in before I finish my business?

  • +6 votes

    Is property law really as sexy as they make it look in the movies and tv shows?

  • +6 votes

    What do you drive?

  •  

    Hi Shandawgg - did you see the post regarding an OzBargainer having bought an apartment and having his partner move in with him? Can you comment on the legal ramifications of this manoeuvre and what would happen if they broke up, etc? I don't know if this falls under Property law umbrella.

    •  

      No i didnt see it.

      Are his concerns over dis-entitlement of stamp duty concessions or a claim by his partner for proprietary rights over his property?

      •  

        He bought an apartment and was asking if his partner, whom is moving in (they previously lived separately), should pay some sort of rent or board for living in this dwelling. People are commenting about the ramifications if she's paying rent and they split - her entitlements to the property, that sort of thing.

        Here's the link. Not sure if cross-posting is allowed on OzB

        • +3 votes

          Ok, ill read it shortly.

          However, my first instinct would be to sign her up on a residential tenancy agreement so that her rights are as tenant only. Will get back to you.

        • +2 votes

          @shandawgg: Can you advise that to OP? That'd be good.

        •  

          @shandawgg:

          However, my first instinct would be to sign her up on a residential tenancy agreement …

          Hang on, that's a lease, which is a property right which entails exclusive possession. She could then kick him out.

          A licence is all she should be granted, so he can kick her out.

          Of course if they're together for 2 years that's a de facto.

          Don't forget to correct all my mistakes.

        • +1 vote

          @AngryChicken: depends on circumstances. He may own under company/trustee entity. Otherwise, a period tenancy (month to month).

        • +1 vote

          @shandawgg:

          If worse comes to worse for this particular ozbargainer, he should consider de-facto/pre-marital agreement (called a binding financial agreement).

  • -2 votes

    How long should a carton of eggs last in my fridge?

  •  

    What's your opinion on the probate process?

  •  

    what are your views on the tightening of the stamp duty laws?

    • +4 votes

      I dont think its good for the economy. I think they should increase the first home owners stamp duty value limit to $750k and increase the grant to $25k.

  • +5 votes

    Is it the vibe, or Mabo?

    • +21 votes

      It’s the constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe and aah no that’s it, it’s the vibe. I rest my case.

  •  

    Do you believe in love at first sight ?

  • +8 votes

    What if you accidentally bought an apartment/unit that had a 1.8m celling?

  •  

    In 20 words or less what's your opinion on Terra nullius, Mabo and Wik?

  • +2 votes

    What size firm do you work for and what hours do you work? If it's a big firm, also any interesting info like billable hour targets, bonuses, culture, etc.

  • +9 votes

    I have worked in a top 5 law firm, boutique firms and national firms. Current firm is medium size, work hours 8am to 6.30pm - billables are 6hrs (solicitors 7hrs, associates, 6hrs, directors 5 hrs, partners 4hr). No bonuses unfortunately. Great culture with partners who freely give up their time to mentor.

    Solicitors and associates are expected to do the work while directors and partners are expected to develop and building business relationships (which is evidenced in the amount of billables for each position)

  •  

    Did you hear about the Urban Food Street conflict between residents planting trees/gardens on the verge and council requiring them to obtain permits and liability insurance? (see article here)

    How should councils regulate what can be planted on the street verge, or should they regulate it at all?

    •  

      Wow, just read the article.

      I am not up to date on the situation there, but could council take control of what is planted on the verge and then cover the costs of PLI? Even if they could add it to the rates for those particular residents.

      What do you think?

  •  

    Hi shandawgg, thanks heaps for doing this AMA, the OzB populace greatly appreciates it :)

    This is an extremely specific question, but I'm sure you're familiar with the Certificate of Occupancy (COO) and Compliance Certificate (CC).
    Are there generally timelines as to when these must be completed (relative to the house being built/fixtures being installed of course) by the relevant tradespeople?.

    The reason I'm asking is because I bought a house that settled in March 2015, brand new, never been lived in before. I am in the process of submitting a warranty claim for the ducted heating unit which has crapped itself. The manufacturer says the unit is out of warranty (I'm guessing based off the date the builder purchased it), but I've had the house for less than 3 years (the warranty period) and I've got a COO and CC (the CC is from the Plumbing Industry Commission) dated December 2014.
    Is that sufficient grounds to show that the unit was installed in December 2014 itself or could they claim that the COO and CC was issued WAY after the unit was installed?

    I know it's very specific but your advice would be greatly appreciated.

    Thanks mate!
    smarioc

    • +1 vote

      Hi smarioc,

      A “defect” according to the QBCC refers to an issue with the building work that causes water ingress or effects the structural integrity of the building or is not in accordance with an Australian Standard or the Building Code. A complaint to the QBCC about those things can be made within 3 months of noticing them (although that time can be extended).

      Claiming on a manufacturer’s warranty is really on the basis of the individual warranty and will be different from item to item. It would also depend on whether it starts from purchase date or installation date…

      There isn’t a nice easy answer to your question im sorry but please seek professional advice.

      You may have some recourse under the ACCC but i am not sure. Perhaps another lawyer can guide you on this point.

      •  

        Thanks for the detailed reply shandawgg. Is there a specified time period between the installation of (for example) a plumbing work such as a ducted heater, and the issuance of the Compliance Certificate? So if (for example) a ducted heater was completely installed on 1 Jan 2017, is there a specified date by which the Compliance Certificate must be issued, stating that the installation complies with all relevant Australian Standards and Codes etc?

        Thanks again!

        • +1 vote

          If you have an agreement with the plumber, it will mostly likely state the timeframe for installation and your rights on defective installation. I am really of my depth here with building disputes.

        •  

          @shandawgg: No worries, thanks for your help thus far :)

    • +2 votes

      Disclaimer: not a lawyer, but I do have a law degree:

      Your issue is more than adequately covered by Australian consumer law. In a nutshell, goods must last as long as a reasonable person would expect them to last given how much you paid for them… the actual warranty period means nothing…

      Most companies will agree your warranty should start on the date your house became habitable (I.e when your COu was issued…) maybe try calling them and asking nicely

      If not mention ACL and this will hopefully get them to your way of thinking. Failing that go to your local fair trading office… this probably won't do much and you will then have to enforce your rights to goods of merchantable quality in the courts.

      Hope this helps.

      •  

        Thanks mate, your help is greatly appreciated :) will go down that path if the manufacturer refuses to come to the party.

  • -2 votes

    Im a law graduate in Sydney working in property too. Just want to ask. Do you like fidget spinners ?

  •  

    Hi
    I'm curious, in a case like this http://www.theage.com.au/business/property/hundreds-of-buyer... could the buyers/investors get out of their purchase contract?

    In Melbourne (and probably Brisbane) there are several new skyscrapers going up. People have done what these buyers have done. Basically bought off the plan. I'm looking to purchase my first home in the next 5 years. I want to know what happens if the builder goes bankrupt or gets into these legal battles…

    Can I protect myself somehow? Or are there ever clauses where if the property is more than lets say a 1.5 years behind schedule I can bail?

    Excuse the stupid question it's been a while since I did intro to commercial law in first year uni…

    • +1 vote

      Cop-out answer but it all depends on what the contract says. Under the Land Sales Act and BCCM Act provides that the sunset date for completion of the house/unit is 5 and a half years.

      Tip: have a solicitor review the contract before you sign it. It will cost you roughly $300 but can save you a massive headache in the future.

  • +1 vote

    From the transactions you've been involved with, what are the returns on commercial property compared to residential property?

    •  

      Great questions. With our residential investor clients, I see good returns where they have quite a large portfolio. Commercial is by far has the greater returns. A client of my owns 1 commercial property and has a government tenant with a 10 year lease. He's sitting pretty.

      In saying that, commercial property can get pretty complicated at times and costs are usually much higher.

      • +1 vote

        Commercial is certainly more lumpy and higher risk. I have a commercial unit which has been on the market for the last year now. Had one interested party who had a change of mind at the 11th hour. The unit itself is located in an inner west suburb and could be used as an office or retail space.

        Previous tenant had signed a 5+5 year lease but declared bankruptcy after the first year. Not fun.

  1. shandawgg on 14/07/2017 - 10:46
  2. shandawgg on 14/07/2017 - 10:55
  3. shandawgg on 14/07/2017 - 10:43
  4. shandawgg on 14/07/2017 - 10:42
  5. spillmill on 17/07/2017 - 02:22
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