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.
I'm impressed, shandawgg - good (and sometimes quite funny) answers. Thanks for your AMA.
Thanks pjetson.
before this ends.
just want to know how much you make ?
you can inbox me directly if you want.
Hi mate,
A good guide I use when it comes to performance review is the Hays Legal Salary Guide. See here: https://au.hudson.com/portals/au/documents/salary%20guides/Legal%202016%20Salary%20Guide%20(AU).pdf
You can say that I am within the mid-tier range with 4-5 years PAE.
When will Half life 3 be out?
On the date the official announcement is made notifying the public of its release.
Does that mean never?
How much money laundering is occuring through property at the moment?
Not sure. Perhaps some of those Gold Coast lawyers may know more about that than me. I joke.
Hi shandawgg, when you say commercial, do you mean commercial law? Or do you mean commercial property law? Thanks
Hi Xiaoyer,
Both.
Ok. Hoping if you could provide some advise in regards to a dispute with a removalists.
I've recently engaged a removalist to move a piano from the in laws to my place. Booking was made over the phone and I specifically asked if all insurances were included and was told so. Got a text message confirming booking with insurance entitlements of public liability and good in transit insurance.
On the day of the move, they came and picked up the piano without checking the conditions of it and unloaded it at my place. I saw them taking it out the door from the in laws and in the door at my place and there were no incidents. At the end of the move, was given a document to sign that they don't cover damages from loading and unloading and acknowledgment that the goods were received in good order.
Later in the evening, the missus came home and found a few dents and a gash on the side of the piano. I contacted the removalist about it and he said that there was no way that the piano was damaged by them. The in laws said that they polished the piano the day before and there were no damage.
Would you be able to tell me what my options are? The removalist has offered to compensate for the total of the bill that I paid him out of goodwill but I've got a quote from a piano restorer which is about 4 times what I paid the removalist.
My issues are:
1. The section of the document that said that damages are not covered due to loading and unloading should have been signed prior to the move and if so, I would have had the opportunity to organise insurance for accidental damage through my contents insurance.
2. I didn't check the piano before I signed the acknowledgement that there was no damage to the piano because like I said, I saw them exit the in laws and enter my place with no incident.
3. I asked about the goods in transit insurance and he told me that the insurance company would laugh about a claim for a few dents on the piano.
What are my options to recover the cost of the repair? Thanks.
Does this have anything to do with property law?
Hi Xiaoyer,
The first place to contact is the business itself. I would provide them with the quote you received from the restorer.
If you cant get a satisfactory response, you should look into whether you can make a complaint with the ACCC (or if in Qld, the [Office of Fair Trading] (https://www.qld.gov.au/law/fair-trading).
You should look into obtaining legal advice from a commercial litigator.
Hi
I have few investment properties. I'm wanting to give away 50% share of all the properties to my wife after we get married.
Is there a way to do this without attaching any extra large taxes i.e stamp duty etc…
Thanks
Edit:
All properties are in NSW.
For what it's worth I can tell you in Qld you can only give half of your family home to your partner without incurring stamp duty.
Stamp duty will apply to all the investment properties.
I dont think i can add to much to what Random110 said below.
If you purchased the properties under your superfund then you will have some options available to you once you retire.
What can I do about a tenant who decides to squat my property after they receive notice to quit? How long would the process take to regain possession, and would it be expensive?
How can I force a scumbag builder to repay my 1k deposit I paid for a new build.
Had to cancel it under the finance clause. Requested it almost 4 weeks ago, have gotten every excuse under the sun as to why it hasn't been refunded yet, they dont deny they are going to refund it, they are just screwing me about for weeks in the process of doing it.
P.s never build with Aushomes in QLD.
I am not up to date with the latest version of the building contracts but last time i checked, the QBCC version stated that the deposit was to be refunded immediately.
Keep chasing and if no luck, tell the builder the next time you will have your solicitor follow up.
Final notice to the builder. In writing, and giving a reasonable time for it to be paid.
Also in the letter, state that without further notice to them you will be lodging a claim in your relevant state's small claims tribunal.
It's a minimal fee (around $80), and doesn't allow lawyers and lengthy days in court.
You've exited the contract under a legitimate clause.
Lodge a claim against the builder, and also report them to their relevant membership group (MBA and HIA).
HOWEVER….
You also need to be aware that you'll be up for any costs incurred by the builder up to the point of you giving notice under the finance clause.
This will no doubt include draftsperson/architect fees, and any costs associated with obtaining council approval.
Just depends on how far things went before you decided to pull the plug.
Deposit is definitely owed back to you, no question.
But if you've entered a standard building contract, there is a clause in there FOR SURE about the builder recouping any reasonable costs borne by them on your behalf. Once you've signed that contract, the builder is bound by it- but so are you.
in Qld you can only give half of your family home to your partner without incurring stamp duty.
So if you own half the house and your spouse owns half and you decide to give your half to her there is no stamp duty in QLD?
My Partner is separated (over 8 years)from his wife and now wants her to buy out his half of the family home. Can that be done without incurring stamp duty? and what sort of legal advice would you give for such a transaction? I had expected a document stating the purchase price of his portion would be given to him in return for him handing over any entitlement to the home and having it notarized would be enough?
There is a joint loan on the property currently also, how would that play into all of this?
Hi Sun N Moon,
Stamp duty will be payable unless there is a family court order involved allowing the transfer between the parties). If they are in good terms, consent orders may be filed with the court providing, among other things, the transfer to the husband, payment of consideration, payout of the loan.
The exempt stamp duty provision relates to when both own the property as joint tenants and then wish to sever the joint tenancy (to tenants in common in equal shares).
Your partner should call a family lawyer and obtain a quote for consent orders then weigh up the costs against the stamp duty.
Your very kind to do this for us, Thanks!
So if you own half the house and your spouse owns half and you decide to give your half to her there is no stamp duty in QLD?
No, the exemption is that if you own your principal place of residence in your sole name, and you wish to transfer a half interest to your spouse (be it husband, wife or de-facto), then no stamp duty is payable.
Unless there's a family law order, stamp duty will otherwise be payable, and will need to be supported by a market appraisal.
Thanks for the information.
Can an admitted lawyer that hasn't practiced ever since their graduation in 2010 have a chance at a law job?
Yes, very much so.
Our firm just employed a solicitor who took a 5 year break from his legal career pursuing his business interests.
Yes, persistence is key. In the meantime, work at whatever job so you can to build interpersonal skills and to show future employers what you've done in between.
Is there a chance the track could bend?
I suggest you read the terms of use.
What is the main difference between a retail lease and a commercial lease?
Would you advice getting a commercial lawyer for every retail lease or only if it is complicated? (Lawyers are not cheap that's all…)
Governed by different legislation (commercial = property law act Qld- retail = retail shop leases act).
Commercial- landlord favoured, all costs can be passed on to the tenant I.e land tax, landlords legal costs, rates and other outgoings. Commercial- usually all leases except that of a retail and residential nature.
Retail lease- is a lease of a shop in a retail shopping centre (retail shopping centre is a centre with more than 5 shops that are retail). Strict laws in what can be charged to the tenant (nothing if I recall correctly on a new lease).
If legal costs are a main concern, engage a lawyer to assist you with the heads of agreement and review only. Costs can be racked up on the negotiations with the landlord.
Do you offer fellow OB discount if we were to avail your services in the future?
Hi TrEnDZ09, yes can do. However, if anyone already has a lawyer I lalways encourage solicitor loyalty.
Hi shandawgg, a fairly specific question - someone I know has a small shop in Westfield with the contract under the 'NSW Real Property Act 1900' (not sure if this means it is a typical retail lease?). There is a bank guarantee involved in the contract.
The business is losing money and they think declaring personal bankruptcy may be their only option to get out of the lease as they will not be able to pay the rent. Would you advise doing this or perhaps contacting a commercial lawyer to explore other options?
Thanks!
He's asleep, but lucky i'm here to make shit up.
They should see a commercial lawyer and explore other options.
You don't generally want to enter bankruptcy if you can avoid it - those bankruptcy trustee's are kind of expensive and being made bankrupt can really disrupt your rhythm well after you're discharged from bankruptcy.
Unless of course you're a barrister
Re: last line
That is a disgusting misuse of privilege if that is happening for the purpose of tax evasion
Hi Pwoh,
Yes, definitely. The lease will have provisions stating that bankruptcy is a default. On a bankruptcy event, the landlord will have access to the bank guarantee and may chase the guarantors (if any) for any shortfall.
Contact a property lawyer in NSW and ask them to advise some options such as:
If the business can be sold, and the lease assigned (landlords consent required)
If the lease can be surrendered to the landlord (and damages negotiated)
Depending on their circumstances, relocated to a smaller shop in the centre.
Hi shandawgg,
Thanks for doing this.
I've got a question about a problem my brother has with a window/glass repair tradesperson.
The tradie was hired to repair a broken window. After the job was completed and signed for, my brother discovered shards of glass on the bed and in his jacket and a deep scratch across his TV.
When my brother complained about this and asked why at the very least a dropsheet wasn't used, the tradesperson (via email), got extremely abusive and personally attacked my brother. He even gleefully said that my brother had no leg to stand on since he already signed off on the work.
My brother forwarded to me all the correspondence so I'm happy to publish them here with all the names redacted. I'm just so angry right now because of the way he spoke with my brother and the sheer disrespect and bile that just gushed out from this guy. My question is, can my brother challenge this legally given that he already signed off on the repair?
Thanks!
PS: my brother lives in the western suburbs in NSW.
Wow, this makes me angry just reading this.
What does the document say in relation to the work conducted? It may only cover the extent of the installation and not the poor workmanship.
More information is required but in this day and age, it is astounding on how much a bad business review can do to a business.
Thanks for you offer to field questions.
I am looking to purchase a townhouse in NSW as a first home buyer towards the end of the year to avoid paying rent. I'm relatively new to this and I am wondering f you could outline some of the pros/cons of purchasing a Strata vs. Torrens title property? Sorry if it's a dumb question but I don't really understand what the difference is despite doing a bit a research already. Thanks!
Hi SFK,
It depends on what you want as a buyer -
Strata cons (units/townhouses) - strata levies on top of rates and water, close proximity to neighbours, community living, by-law compliance (although owning a pet is becoming a bit easier), parking spaces restricted, gamble on whos living upstairs, downstairs, side to side…
Strata pros - community living, close proximity to neighbours, amenities such as gyms, pools, saunas (if applicable).
Torrens pros (standalone houses etc) - flexibility to subdivide, generally more space, less restrictions than units
Torrens cons - maintenance of the property as opposed to the strata manager/caretaker looking after the common property
Thats just a few things but im sure the ozbargain community can add more.
I would like to pull out of a contract for an apartment I purchased in October 2015 in Bowen hills. The developer is Starhill and the complex is called Topaz Residences.
The estimated project completion date was April 2017 when they initially marketed it, however construction has not even started.
The project was supposed to consist of two towers with 156 apartments in total. The towers would wrap around a restored heritage house.
However I have been informed by my solicitor a while ago that Tower B will no longer be built. I have tried to email the developers via their website to find out exactly what the changes are and what the new completion date is (at the moment no construction has started on the site) but they have not replied to my email. They were very quick to reply to my sales enquiry before but now I feel I have been left in the dark about what is happening to this development. The sunset clause is 3.5 years from the contract date.
I found out the developer is not doing so well online but my lawyer has never mentioned this to me. I found it after I did some online searching:
https://www.insolvencynotices.com.au/notices/starhill-proper…
Is it possible to get my initial deposit back? How should I go about trying to get this back?
Oh no JenB, check the contract for events of default for the seller.
Get your lawyer onto it straightaway to see if you can get your deposit returned. Insolvency or an application for insolvency may be an event of sellers default and may entitle you to termination rights.
Good luck and hopefully your deposit was put in an interest bearing account!
For a simple sales and purchase of a property with a mortgage that needs to be discharged before the funds are released to the seller is a licensed conveyancer good enough for the job or is a solicitor required?
I assume you are in NSW or WA?
Also when you say sales and purchase, are they interlinked? I.e. the purchase of your (new) property is conditional on the sale of your (old/current) home?
If you are cost conscious, then a licensed conveyancer may win you over but I always err on the side of caution and engage a solicitor. A conveyancer will do the job but if there are any hiccups on the way, then youll be regretting not getting a lawyer in the first place.
Hey Shandawgg thanks for answering. I should have framed the question better, it is just a purchase of a property with a mortgage on it that needs to be discharged to protect the buyer's interests (so that the Buyer doesn't assume responsibility over the mortgage). What could go wrong in QLD?
Of course without reviewing the contract, it sounds like a standard conveyance.
A release of mortgage will be exchanged at settlement for the outstanding seller's loan balance. A bank cheque will be drawn on the settlement day for these funds.
Just make sure before you sign a contract that the mortgage will be discharged. Most industry standard contracts will have an "encumbrance" section which provides what interests will remain on title after settlement. Just make sure the mortgage is NOT noted in that section.
More complex deals will need a solicitor, most commonly where special conditions are required to be drafted (subject to DA approval, building approvals, simulatenous sales etc etc).
Hi Shandawgg,
If a person buys an Off-the-plan unit, where it does not settle until a few years time, if the person loses their job within that period, and they cannot get a loan, are there "get-out" clauses within the laws other than what's stipulated in the contract?
Hi Kyoba, most off the plan contracts do not include 'break clauses'. The danger is forfeiture of the deposit and a claim against the buyer for the difference in any future sale price and costs (re-advertisement, legals etc). The buyer is not in a very strong position under the contract if they were to lose their job and they don't have a special condition. Outside the contract, there may be recourse under unfair contract terms under ACCC
Just to add to shandawgg's post, most finance approvals are only good for three months. They will always be subject to a valuation once title has issued. So even if you can keep a similar paying job between signing the contract and settlement, you're still not guaranteed of your finance coming thorugh.
Buying off the plan is a risky proposition, and frankly I can't see the appeal in it, particularly in the current environment.
What do you think about Marriage?
Marriage is not just a word, its a sentence.
It's a life sentence…
Can a judge preside over a case where they have an interpersonal relationship with one of the parties
They attended uni together and remain acquaintances through shared interests
Interesting.
You can make an application to the judge to recuse/disqualification himself/herself.
is the gun deal that was posted illegal?
Sounds interesting but wouldnt have a clue.
I have a friend who is currently studying law (first year) but that's his second degree so he has some prior knowledge in another field (Engineering). He's unsure which area of law he wants to practice in, what advice would you be able to give him for that?
Tough one.
You have to do 11 compulsory law modules (when i studied it was called the Priestly 11 or something). The remaining units are electives. I would encourage him to take a variety of units and chose the one he likes.
Like most, I didnt choose my area of practice. It was my first job out from uni.
Sorry to barge in on another persons AMA, but this situation was unique to me. I wanted to do IP law specifically patents, but found out afterward even though I am tech savvy I needed a science / engineering degree to do it.
If he has (or is) doing Engineering as well, he is in a unique position that many lawyers are not in. He can go into patent law.
Tell him to pick up an Intellectual Property law elective, if he hates it, no biggee, if he loves it though, a new door will be available to him.
Thanks mate. Are there any other electives that might be helpful/related to the Engineering discipline? Also, he's finished that degree already and is doing Law as a single degree.
Intellectual Property, specifically Patents, is the field that comes to mind that requires an Engineering/science degree.
Otherwise it is just a matter of what looks best to him when he reads the elective list. Mining, Petroleum, etc might be related to his Engineering degree, but then again it may not be depending on the type of engineering he did. It'd just be his preference.
Great advice.
If you are a member of a body corporate, and an owner is bypassing their water meter and stealing water, who's responsibility is it to act if the body corporate receives an overall bill via the primary meter, and has to read the sub meters and issue individual bills?
Currently we are all picking up the difference, as the committee is reluctant to act, I believe purely to avoid conflict.
Ahh that sucks!
This is something the committee should handle.
Ask the body corporate manager to put it on the agenda for the next AGM, or call a EGM if its urgent.
All gets recorded in the minutes.
Unfortunately the committee is made up of people with no understanding of what is occurring, and the body corporate management is in another part of the state.
Easier to get rid of the individual meters (or just stop reading them) and just apportion the bill based on unit entitlement. This will avoid a confrontation and share the burden more evenly.
@sp00ker: Not really. It is properties, not units. 12/15 properties are self sufficient with tanks, 1 is abusing and using 2-300000 liters, and not paying for it.
Maybe putting the proposal to get rid of meters on the agenda is enough to get rest of owners to shame the 1 loy into compliance…
Married couple , however house titled is under husband only.
If couple was to separate, who would get the property. Let's say both partners financially contribute equally to their marriage.
I should add that this property is the main residence
Is there a mortgage over the property?
Is there a binding financial agreement in place (i.e. prenuptial?)
Would either party be agreeable to selling their share to the other?
Presumption rests with the husband, but may be rebutted with equal financial contribution.
Are there any family lawyers here (or Ozbargain gurus) that can add to this?
I heard the call my learned friend =p.
You are mostly right.
@bschick7 there is not really a presumption for the husband and it is not rebutted just by financial contributions. Non financial contributions i.e. homemaker duties, raising the kids can be given equal if not greater weight than financial contributions, along with a bunch of other factors like the answers to Shandawgg's questions. So for a married couple, it largely doesn't matter whose name it is registered under because it is held on a trust for both of you when there is a dispute.
You should consider lodging a caveat as a precaution.
Btw great answers all around Shandawgg.
Awesome, thanks @humdogg
I'm looking to buy land in a new estate. Have had contact with the developer, the finance and builder I plan to use. The developers are not yet issuing titles for the land, but I can sign a contract to buy the land once it's available. The developer has posted prices for their land, although they have increased recently since they've sold signed contracts for half of their lots.
Is there anything critical I should check about the lot I'm after that will affect value/cost of building in the future?
Maybe this isn't a strictly legal question, but if you have any related advice, thanks!
Yes, you can ask for a soul test special condition to ensure the foundation is good before you build. Also can request that a valuation condition be added (a bank will do a valuation pre-subdivision and one post subdivision to ensure there has been no decrease) so that if the value falls below the pre-valuation, you can terminate.
Of course, you can try it with the seller/developer and see what sticks.
*soil test
With a large portion of the industry having job applications claiming 'People of diverse background and women encouraged to apply' at the end of their posting. How would you recommend somebody that is neither gain entrance into the industry?
where are you located please?
Hi d2joy,
Brisbane CBD.
I am a tenant, just moved into a property 2 months ago. Last month we found a mouldy area in our kitchen cupboard (because water leaks from the side of sink), the agent contacted the landlord but he has not done anything about it yet, What can we do and what are we entitled to? Thanks!
The RTA website is an invaluable source of information for both tenants and landlords.
If worse comes to worse, you can issue a notice to remedy breach for repair and give a reasonable time frame for the landlord to fix the leak. https://www.rta.qld.gov.au/Forms-and-publications/Forms/Form…
Although, no one likes to receive a notice like this so best bet is to chase the property manager before going to these lengths.
can someone buy their first house as an investment property and claim most of the purchase amount on tax in a couple of years and than change it to primary residence after?
Yes, but is your question relating to the loss of first home owners grant/stamp duty concession if purchasing an investment home?
oooh true, so can they buy it as a primary residence and after a few months change it to an investment property? to claim it on tax than switch it back to primary.
First home owners grant - must live in the property continuosly for 6 months
First home stamp duty concession - must retain the property for 1 year (i.e. cannot sell, transfer or sometimes lease the property out).
Hope this assists.
What about leasing a room?
@jerjergege:
I am trying to recall (from my very dodgy memory). I dont think so, from memory you would lose benefits.
@jerjergege: OSR Qld says no to leasing room for duty concession but yes for the grant - https://www.qld.gov.au/housing/buying-owning-home/first-home…
Any idea about VIC?
I went through the housing.vic.gov.au site and didn't find the information a bit back. Would be good to know if I can lease a room out I won't need to use all 4.
Do you ever feel embarrassed with the extraordinary high fees lawyers unashamedly charge for trivial/routine matters?
I encourage clients to shop around (ozbargainers are blessed with these skills).
Also, everyone has a right to challenge costs and if you believe they are too high, ask for a reduction.
I'm not the OP, but I practice in commercial/property/wills & estates in Queensland so I feel I can chime in.
Firstly, it's dangerous to treat a matter as trivial or routine. That's how mistakes are made, potential issues are missed, etc.
This might sound odd to those outside of the profession, but lawyers are risk adverse. We don't want to find themselves in trouble as a result of doing a half arsed job. The insurance excess on claims made starts at around the $10-15k mark plus there's the risk of a complaint being made to the Legal Services Commissioner. Not to mention that you probably won't be in your Partner's good books…
I feel there can also be a disconnect between what the client considers straight forward, and what the practitioner does. It probably ties in with the above point. Unfortunately, the clients who expect you to do the bare minimum of work to keep the cost to the bare minimum will be the first to have a crack at you when something goes pear shaped.
So in essence, to do what may seem a trivial or routine matter properly will take time. And time costs money…
I'm not sure why I should feel embarrassed about what I charge. I've done a lot of study in a challenging degree to get this far. My hourly rate effectively includes my secretary. Plus, unless you're an equity partner or high up in a top tier, the pay per hour probably isn't as great as you'd expect. I'm certainly not looking for sympathy, but if you think your average lawyer is swimming around in cash for doing bugger all each day because of a grossly inflated hourly charge-out rate, you'd be misconceived.
Hi there,
Do you know much about NSW law?
I purchased a off the plan Apartment in April 2014, the building all finalized early this year and most units have settled no problem.
But my unit is still not settled. The developer claims there is some dispute between them and their funding bank (it is an overseas bank that they got loan from for the building project), and the funding bank refused to release the property title for settlement. But as I said most units have settled. Developer advised till now 5 units cannot settle due to above reason.
In this case, What will be the best approach for me instead of just keeping waiting for no promise from developer? I do not want to cancel the contract given sydney property price went up a lot during last 3 years.
Thanks.
Hi,
There is usually a clause in OTP contracts regarding when the property has to settle. Common (if there is a thing) contracts provide that once the title is registered at the LPI (i.e. gets its own vol/folio), settlement must occur within (xx days [usually 14 days]).
If settlement does not occur, you will have a number of rights and option including termination. There may also be default interest rights which you can charge against the seller.
Contact your solicitor and ask what is available to you.
Thank you very much for your help!
Hey, great job on the AMA
my husband has a mortgage on our residence that the bank convinced him he needed his sisters name on the mortgage as well (not as a guarantor, as a part owner) financially she hasn't contributed beyond $10K which has since been repaid. The mortgage is now at $0 - would it be better to remove her name before the mortgage/deed is finalised with the bank, or after, or is there no difference?
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.