Early possession in the sale of a property occurs when a vendor, being the owner of the property, allows a purchaser access to the property prior to settlement. There can be various reasons why a purchaser may request early possession. The purchaser may have sold their property, or they may need to vacate their residence earlier than expected. The purchaser may also wish to gain a head start on moving by storing items in the property if the whole or a portion of the property is vacant.
In terms of the advantages of early possession, it is the purchaser who primarily benefits as early possession provides relief for housing or storage issues the purchaser may be experiencing. There may be some advantages for the vendor. Such as, if the property is vacant it may be beneficial to have someone residing in the property to reduce the risk of a break-in and vandalism. Early possession can also create additional income through an early possession fee. Whilst there are some benefits for vendors, allowing early possession comes with risks.
If the vendor grants the purchaser access to the property prior to settlement, the purchaser is obtaining the benefit of the property whilst the vendor must wait until settlement to receive the settlement monies. This is because, at settlement the title to the property passes from the vendor to the purchaser when the purchaser pays the settlement monies to the vendor. The risk is, if settlement does not go as planned, the vendor may experience the added stress, delay and cost of taking action to have the purchaser and their belongings removed from the property. The vendor may also need to deal with repairing damage caused by the purchaser.
Every sale is unique and involves vendors and purchasers who have different needs and goals. Early possession is just another consideration to the transaction. Before you agree to granting a purchaser early possession of your property, it is strongly recommended you seek legal advice. This is to ensure you fully understand the risks but also to ensure the terms of early possession are clearly outlined and agreed to by all parties.
For efficient and expert advice, contact Everingham Solomons where Helping You Is Our Business.
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Security of your identity is not only important during your lifetime but also after death. Having unmanaged online accounts poses a risk to your identity and can be stressful for your loved ones. With the increasing amount of work and socialising that occurs online, it is prudent to have a plan on how you want your digital assets to be managed after death.
As there is currently no specific law in NSW that applies to a person’s digital assets when they die, online account providers adopt their own varying processes in dealing with a deceased person’s account. Some providers may be prepared to share the content with the executor, next of kin or beneficiaries whilst others close the account immediately. The differing requirements and processes of providers can be overwhelming. It is therefore important to have a Digital Asset Plan to help guide your loved ones.
A Digital Asset Plan usually consists of:
A list of your online accounts.
Your username for each account.
How your passwords can be accessed. For instance, whether they are stored on a “password safe” application or in a further secure location.
Your wishes for your accounts i.e. memorialise, closure, deletion, etc.
It is important you keep this information in a safe and secure place to minimise the risk of identity theft or cybercrime.
Some providers enable you to nominate a legacy contact with them direct. You can also appoint a person to liaise with those providers to manage those assets on your behalf. This can be done by including a power in your Power of Attorney to permit your attorney to manage your digital assets during your lifetime in the event of your incapacity. A power can also be included in your Will to permit your executor to manage your digital assets after your death.
Whilst the legislation in this area is still evolving, at Everingham Solomons we have the expertise and experience to guide you with all your estate planning needs, because Helping You is Our Business.
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Estate planning is more than just preparing a Will. You should also consider who will make decisions during your lifetime should you be unable to make those decisions for yourself. These decisions include your legal and financial affairs, and your health and lifestyle. For this you will need to appoint a Power of Attorney and an Enduring Guardian.
A Power of Attorney is a legal document which deals with legal and financial decision making. An Appointment of Enduring Guardian is a further legal document which deals with health, medical and lifestyle decision making. These documents enable you to appoint trusted family members and/or friends to make decisions for you in the event you lose capacity to make those decisions for yourself in the future.
To prepare both of these documents you must have capacity. It is therefore important you prepare the documents whilst you can understand the nature and effect of the documents.
If you lose capacity and do not have a Power of Attorney and/or Appointment of Enduring Guardian, the Guardianship Division of the NSW Civil and Administrative Tribunal has the authority to determine applications for substitute decision makers. They can issue orders to appoint a financial manager and/or guardian on your behalf. Whilst this may result in added stress for your loved ones, it may also result in someone being appointed who you may not have ordinarily appointed yourself.
In determining who you should consider appointing, it is important they are trustworthy and will act in your best interests. In terms of a Power of Attorney, they should be responsible enough to manage your finances. You can appoint more than one person and by doing so you can elect for them to be appointed jointly, or jointly and severally. Jointly means they are only able to make decisions if they all agree about the decision. Jointly and severally means they can make decisions together but can also make decisions independently of each other.
At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.
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If you have sold or purchased property before, you may be familiar with what is known as the “cooling off period”. The cooling off period is five business days following exchange of Contracts whereby a purchaser is permitted to withdraw from the Contract for any reason and rather than forfeiting 10% of the purchase price, the purchaser only forfeits 0.25% of the purchase price. For off the plan Contracts, the cooling off period is ten business days following exchange of Contracts.
The cooling off period only applies to Contracts for the sale of residential property. For the purposes of the cooling off period, residential property is defined as land with no more than two places of residence or vacant land which allows for the construction of a single residential premises. The area of the land must be no more than 2.5 hectares.
Despite a property being residential property, there are certain cases when there is no cooling off period. For instance, if the cooling off period is waived, if the property is sold by public auction or the Contract is exchanged on the same day as the public auction but passed in, or if the Contract is exchanged in consequence of the exercise of an option.
The cooling off period can be extended by a provision in the Contract or by the vendor in writing prior to the expiration of the period. The period may also be shortened by written or oral agreement by the parties, or it may be waived by the purchaser. For the purchaser to waive the cooling off period, the purchaser’s solicitor or conveyancer must provide what is known as a Section 66W Certificate.
In country areas such as Tamworth, it is normal for the vendor to request the cooling off period be waived as Contracts are rarely exchanged by the real estate agent. If you are purchasing in an area of high demand, you may need to exchange with the cooling off period to prevent the loss of the property to another purchaser whilst still allowing yourself the opportunity to consider the purchase further.
You should always seek legal advice before signing or entering into a Contract. For efficient and expert advice, contact Everingham Solomons where Helping You Is Our Business.
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Preparing a Will may seem daunting, but it is important that you put in place a Will that reflects your wishes, and to reduce the burden on your family and loved ones when you die.
To alleviate some of your stress, this article provides a brief overview of what to expect at your first appointment with us. The appointment is usually in person as it is important instructions are received from you personally. This allows us to have a conversation with you to ascertain details to help us prepare your Will, such as:
Personal details including identification, contact details and occupation.
Whether you have a current Will.
Details of family and other relationships i.e. spouse/de facto, children, stepchildren, dependents and former spouses.
Particulars of assets both solely and jointly held i.e. real property, bank accounts, shares and motor vehicles.
Particulars of liabilities i.e. mortgages and loans.
Superannuation information including any binding or non-binding nominations.
We will discuss with you who you would like appointed under your Will and how you would like your assets to be distributed to beneficiaries upon your death, such as:
Who you would like to appoint as your executor(s).
If you have infant children, who you would like to appoint as guardian(s).
Specific gifts to any beneficiaries.
Who the residue of your Estate is to be distributed to.
Substitute beneficiaries to cover the event of beneficiaries predeceasing you.
Depending upon how you wish your assets to be distributed, further discussions may be required regarding family provision issues. For instance, people who may be entitled to make a claim on your Estate on the basis that adequate provision has not been made for them under your Will.
We will also discuss other estate planning documents such as Powers of Attorney and Appointments of Enduring Guardian which operate during your lifetime. These documents permit you to appoint another person to make financial, and medical and lifestyle decisions on your behalf should you be unable to do so.
Once instructions are obtained for the preparation of your Will, our appointment is usually concluded. A draft Will is then prepared and submitted to you for your approval, and a further appointment is scheduled for reviewing and signing of your Will.
At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.
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Once Probate or Letters of Administration has been granted by the Court in a deceased Estate, and before any assets of the Estate are distributed, the legal personal representative (i.e. executor or administrator) of the Estate has the ability to publish a notice of intended distribution, in accordance with section 92 of the Probate and Administration Act 1898.
Where is the notice published?
On the NSW Online Registry for Courts and Tribunals.
What does the notice state?
The notice outlines the deceased’s details and, in brief, states that any person having any claim upon the Estate must send particulars of the claim to the legal representative within 30 days of publication of the notice. The notice further states that after the 30 days, and after 6 months from the date of death of the deceased, the legal representative intends to distribute the Estate having regard only to the claims of which the legal representative has notice at the time of distribution.
Why is the notice important?
The notice provides legal representatives with some protection in their capacity as legal representatives against claims made, in accordance with section 93 of the Succession Act 2006. A legal representative who properly distributes property of the Estate after publication of a notice of intended distribution will not be liable in respect of that distribution to any person who has a claim (for example, beneficiaries or next of kin seeking to make a family provision claim), unless the legal representative had notice of the claim at the time of the distribution.
Can the notice be published in an Estate where a Grant has not been obtained?
One of the disadvantages of administering an Estate without a Grant of Probate or Letters of Administration is that a notice of intended distribution is unable to be published. Whilst the size and nature of the assets of an Estate are commonly considered by the executor or proposed administrator when deciding whether to obtain a Grant, having the ability to publish a notice of intended distribution should also be considered by the executor or proposed administrator.
At Everingham Solomons, we have the expertise and experience to assist you in administering deceased Estates because Helping You Is Our Business.
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The type and size of the development will determine whether Council approval is required. Generally, minor development such as small decks or garden sheds are identified as exempt development and can be undertaken without Council approval. Development such as home additions will require Council approval. Prior to undertaking any development, you should seek Council or legal advice specific to your development.
How do I obtain Council approval of an unapproved structure?
The owner or an authorised third party can apply for a Building Information Certificate. This certificate is issued by Council and is confirmation that Council will not issue an order, or take proceedings for an order or injunction, for the repair, demolition, alteration, addition or rebuilding of the building. Applying for this certificate will require a survey report of the property and Council’s inspection of the structure. If Council refuses to issue the certificate, Council must notify the applicant setting out the reasons for its decision and the work required to be undertaken to permit a certificate to issue. Depending upon the type of work required, this may result in additional costs. Once issued, the certificate is for a period of seven (7) years and covers such matters which exist at the time of issue of the certificate.
Selling a property with an unapproved structure?
Vendors should discuss any unapproved structures on their property with their solicitor. This is due to the prescribed warranty under the Conveyancing (Sale of Land) Regulation 2017 that provides ‘the vendor warrants that, as at the date of the contract and except as disclosed in the contract … there is no matter in relation to any building or structure on the land … that would justify the making of any upgrading or demolition order’. A breach of this warranty by the vendor may result in the purchaser being permitted to rescind the Contract.
Purchasing a property?
Be alert to structures that require Council approval. Initially, you or your solicitor should make enquiries of the vendor to obtain copies of the Council approvals held. If the vendor does not hold approvals, Council records can be inspected with consent of the vendor. These records may take time to obtain, so parties should be conscious of potential delays.
Important reminder!
If you are planning to undertake development upon your property, check whether Council approval is required. If so, ensure all approvals are in place before works are commenced and the works are consistent with the development consent. Don’t forget to schedule the appropriate inspections during construction to obtain that final approval known as an occupation certificate.
Feeling overwhelmed by the process of obtaining Council approval? Contact the friendly and experienced team at Everingham Solomons, where Helping You is Our Business.
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Covid-19 has forced a lot of industries to adapt to a new way of business and the legal industry is no different. Limits to face-to-face contact has forced the development of technologies and laws to allow for remote witnessing of legal documents.
During the pandemic the NSW Parliament introduced temporary legislation to allow for the signing and witnessing of documents via ‘audio-visual link’ (AVL). It proved so successful that the recent passing of the Electronic Transactions Amendment (Remote Witnessing) Bill 2021 has now cemented the temporary measures into law.
AVL witnessing operates by the witness observing the client sign a document in real time over AVL. The witness then confirms having witnessed the signing by the client by either signing the document as soon as practicable after witnessing or signing an exact copy of the document. The witness further endorses the document by specifying the method of AVL signing.
Being a regional firm based in Tamworth and Quirindi and servicing the entire North West region, Everingham Solomons is welcoming this opportunity to better serve our clients. The ‘tyranny of distance’ has long been a frustration and now we are seeing the measures introduced to endure the pandemic producing long-term benefits for our clients.
People living in regional or remote areas, or those that may suffer from illness or mobility problems can now benefit from this choice and flexibility.
Everingham Solomons understands the need for access and flexibility because Helping You is Our Business.
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From 11 October 2021, all paper Certificates of Title for land in NSW will be cancelled and converted to electronic Certificates of Title.
What does this mean for me as a landowner?
1. If you hold a paper Certificate of Title, that paper title will be cancelled.
2. Those who pay off their mortgage will not receive a paper title.
3. A cash purchaser of land will not receive a paper title following settlement.
4. When a parcel of land is subdivided, consolidated or in any other way created, a paper title will not be issued for that new parcel of land.
Don’t panic! The cancellation of your paper Certificate of Title will not change the ownership of your land.
The Torrens Title Register is the primary register for land held in NSW. This register records land ownership and will continue to be the primary source recording a person’s interest or estate in land in NSW.
The purpose of the cancellation of paper Certificates of Title is in line with the Registrar General’s transition to 100% electronic Conveyancing.
Whilst most dealings with land registered on the Torrens Title Register must already be lodged electronically by a subscriber i.e. solicitor or conveyancer, once this transition is complete, all documents must be lodged electronically by a subscriber.
At Everingham Solomons, we strive to complete your conveyancing transaction efficiently, accurately and securely, because Helping You Is Our Business.
There are various enquiries and inspections you should consider undertaking when purchasing a property. One of those is a Survey Report.
What is a Survey Report?
A Survey Report is obtained from a surveyor to establish that the improvements you wish to buy are actually located on the land you are buying and also to establish if there are any encroachments by improvements onto other properties or by improvements onto the land you are buying. A further purpose is to demonstrate that the house is positioned on the land in order to comply with Council’s set back requirements from the boundaries. The location of the fences may not be a true indication of the property boundaries.
How much does a Survey Report cost?
The cost of a Survey Report for a residential property consisting of a house and land usually starts at $1,000.00 and will increase depending upon the size and location of the property.
Do I need to obtain a Survey Report?
There is no requirement to obtain a Survey Report when purchasing property however, it is an important report you should consider obtaining.
What are the consequences of not obtaining a Survey Report?
There may be no consequences or you may find yourself in a situation where you have purchased a property and the structures on the property encroach upon neighbouring land. You will then have the potential added costs of addressing the encroachment including entering into negotiations with the neighbour for a boundary adjustment or easement for the encroachment, or having to upgrade or demolish the encroachment. You may also encounter difficulties or delays in selling the property if a subsequent purchaser identifies issues with the boundaries. Accordingly, the cost of obtaining a Survey Report at the time of purchase could assist in avoiding the added costs of dealing with issues in the future.
At Everingham Solomons, we discuss the inspection options available to permit purchasers to make informed decisions because Helping You is Our Business.
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Early possession in the sale of a property occurs when a vendor, being the owner of the property, allows a purchaser access to the property prior to settlement. There can be various reasons why a purchaser may request early possession. The purchaser may have sold their property, or they may need to vacate their residence earlier than expected. The purchaser may also wish to gain a head start on moving by storing items in the property if the whole or a portion of the property is vacant.
Security of your identity is not only important during your lifetime but also after death. Having unmanaged online accounts poses a risk to your identity and can be stressful for your loved ones. With the increasing amount of work and socialising that occurs online, it is prudent to have a plan on how you want your digital assets to be managed after death.
If you have sold or purchased property before, you may be familiar with what is known as the “cooling off period”. The cooling off period is five business days following exchange of Contracts whereby a purchaser is permitted to withdraw from the Contract for any reason and rather than forfeiting 10% of the purchase price, the purchaser only forfeits 0.25% of the purchase price. For off the plan Contracts, the cooling off period is ten business days following exchange of Contracts.