With the increased use of online services across all areas of our lives, cybersecurity is extremely important. Particularly in conveyancing transactions where large amounts of money are transferred between accounts.
Email phishing is of particular concern and requires that we all be extra vigilant in dealing with email communications. Phishing is where a criminal impersonates an organisation in order to steal or alter important information.
For example, let’s say you have a property purchase coming up and have been liaising with your solicitor via email. Your email may have already been hacked without your knowledge and the hackers have been tracking those emails. Your solicitor sends you an email outlining their trust account details for deposit of settlement funds. This email is intercepted by the hackers who change the bank account details. The email then continues to you with the hacker’s account details and you subsequently transfer the funds to the hacker’s account. The funds are never received into the solicitor’s trust account and the panic sinks in. Goodbye money.
In the above example, the end result could have been avoided by telephoning your solicitor to verify their trust account details. This account verification process can be applied to all instances where account details are received via email. Importantly, you should check the telephone number within the email to ensure this also hasn’t been changed by the hacker. You want to ensure you contact the person you have been liaising with to confirm any bank account details rather than the hacker.
As hackers become increasingly sophisticated, it is important that we are all cyber vigilant. Caution is better than catastrophe!
At Everingham Solomons we take cybersecurity seriously because Helping You is Our Business.
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So, you are looking to find the perfect property. You have spoken to your bank and know the price range which works best for you. You have even remembered to factor stamp duty into your budget. For those who may have forgotten, stamp duty is a duty which is payable when you acquire property in NSW. For example, purchasing a property for $400,000 would incur stamp duty of $13,452. If you are a first home buyer, you may be eligible for an exemption from duty.
If you are acquiring property as a gift, stamp duty is still payable, unless an exemption applies. As there is no purchase price, stamp duty is calculated on the value of the property which must be evidenced by a Valuation.
A Valuation may also be needed for purchase transactions involving related parties. In such a situation, stamp duty would be calculated on the greater of the purchase price and the value of the property.
Upon stamping of the Contract and/or Transfer, Revenue NSW will require that you complete a Purchaser/Transferee Declaration. The purpose of the declaration is to report to the Australian Taxation Office on the transfer of land and to identify if you are a foreign person as Surcharge Purchaser Duty and Surcharge Land Tax may be applicable.
Supporting evidence must also be furnished to Revenue NSW. For instance, if you are acquiring land in your own name and are an Australian citizen, you will need to produce a certified copy of your full Birth Certificate (not extract), current Australian Passport or Australian Citizenship Certificate. If the name on any of your documents is not your current name i.e. you have since married, you will need to produce evidence of your change of name. Such evidence includes your Marriage Certificate issued by the Registry of Births Deaths and Marriages. The ceremonial certificate signed on your wedding day is not sufficient evidence.
To make the transition to home ownership as smooth as possible, contact the expert team at Everingham Solomons, where Helping You is Our Business.
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So, you have sold your property and have decided to purchase another. It may sound simple, however the process can be rather cumbersome and there are various matters which require your careful consideration. For instance, should your purchase Contract be made conditional upon your sale? Do you have a cash deposit available for your purchase or are you relying on your sale proceeds? Can you obtain early access to your purchase property to ensure vacant possession of your sale property is provided on settlement?
The Conditional Contract:
If you are relying on your sale proceeds for your purchase, it is important to make your purchase Contract conditional upon completion of your sale. This will permit you to withdraw from your purchase, usually without penalties, in the event your sale does not proceed to settlement. This, of course, is subject to the vendor in your purchase being agreeable to entering into a conditional Contract, as a conditional Contract does provide some uncertainty to the vendor that the purchase may fall over if issues arise in your sale.
Early Release of Deposit:
If you do not have sufficient funds available for a deposit in your purchase, you may be able to obtain early release of the deposit in your sale to use as a deposit in your purchase. Alternatively, you could seek to pay a reduced deposit or use a Deposit Bond in lieu of a cash deposit. Ultimately, this would be subject to either the purchaser in your sale being comfortable with the early release of the deposit or the vendor in your purchase being agreeable to accepting a reduced deposit or a Deposit Bond.
Vacant Possession and Early Access:
Most Contracts require that you provide vacant possession of your property on settlement and that you cannot begin moving into your new property until settlement has occurred. For properties which are significant distances away, this may not be of concern when transit times are factored into the settlement timing. However, for properties within close proximity, you may find yourself at your new home with an entourage of removalists waiting for settlement to occur. Accordingly, with the vendor’s approval, you may be able to obtain early access to the property or part of the property i.e. garage to begin moving items into the property prior to settlement.
At the outset, discuss your plans with the real estate agent in your sale and purchase to ensure they, and the other parties, understand your position at the time of negotiating the sale and purchase. Also, discuss your plans with your solicitor to ensure the appropriate conditions are incorporated into the Contracts. To make the move from your existing home to your new home as smooth as possible, contact the property team at Everingham Solomons, because Helping You is Our Business.
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A Contract for the sale and purchase of property includes conditions stating that the purchaser accepts the property in its current condition and state of repair subject to all defects both obvious and hidden. You might have heard the saying “let the buyer beware”.
As a result, purchasers have an extremely limited right to complain after exchange of Contracts regarding the quality of the improvements and inclusions. Improvements include the structures on the property, for instance the house, shed, etc. Inclusions are usually movable items included in the sale, for instance the blinds, stove, air conditioner, etc. Purchasers should undertake thorough inspections of the property and the inclusions prior to exchange of Contracts, which is when the parties are formally bound by the Contract terms. The inspection process can be split into two stages.
Stage One – Purchaser Inspections
It is recommended that purchasers undertake a minimum of two physical inspections of the property. Often, in the excitement of first seeing the property, purchasers may overlook matters. Purchasers can obtain a copy of the Contract from the real estate agent to take to the inspection as all residential properties listed for sale in NSW are required to have a marketing Contract. Purchasers should review the improvements and inclusions noted on the Contract to establish whether they are accurately listed. A review of the title search is important to ascertain whether there are any easements or rights of carriageway affecting the property. For instance, if access to the property is obtained via another’s property, the title search should recite a right of carriageway.
Purchasers should review any plans attached to the Contract. Whilst the deposited plan will not reveal the location of the improvements on the land, it does show the boundaries of the property and may assist in identifying any possible encroachments. The plan of sewer line will indicate where the sewer main runs and may also show connections into the property. This can alert purchasers to potential issues regarding structures over sewer mains, or unapproved works if, for instance, connections to a further bathroom aren’t shown on the plan.
Stage Two – Professional Inspections
There are various professional inspections which can be obtained. Most purchasers will initially obtain a pest (white ant) report and building inspection report. A purchaser may also wish to obtain an electrical inspection, Survey Report, Building Information Certificate and/or inspect Council records. If the home has loose fill insulation, you will certainly want an asbestos test. For purchasers obtaining finance, it may be a condition of the finance approval that certain inspections are undertaken.
It is ultimately at the purchaser’s discretion as to which pre-purchase inspections are undertaken. Depending upon the individual purchaser’s appetite for risk and the property, inspections obtained will vary. 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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There are many terms which might sound quite foreign when you sell or purchase real estate property. For instance, you will often hear the terms “latent defect” and “patent defect”. For many, this may be the first time you have heard these terms. So, what do these terms actually mean and how should they impact your decision making when selling or purchasing property?
A “latent defect “is one which a purchaser is unable to reasonably discover upon an inspection of the property. A “patent defect” is one which a purchaser, who inspects a property with reasonable care, ought to see or discover.
A defect may be either a title or a quality defect. A defect in title is an interference in the vendor’s ability to perform their obligation to transfer the title under the Contract, being the subject matter of the sale (including the improvements). A defect in quality affects the quality of the land and/or improvements. Whilst a defect in quality may affect the value of the land, or the use to which the land or improvements on the land may be put, it does not interfere with the vendor’s ability to transfer the title. For example, use or zoning of the land, physical defects in the land or improvements (i.e. structural defects, pest infestation, land contamination, etc.).
A vendor is only obliged to disclose to a purchaser latent defects in title. In respect of all other defects, being patent defects in title and quality, and latent defects in quality, the rule is caveat emptor or “let the buyer beware”.
A vendor’s failure to disclose a latent defect in title may entitle the purchaser to terminate the Contract, if sufficiently serious. Accordingly, it is important that defects are classified correctly. However, such distinction is not always easy to make. It may be prudent for a vendor to disclose the defect in the Contract with an acknowledgment by the purchaser that the disclosure has been made. This not only assists the purchaser with their inspections of the property and decision making, but also provides more certainty to the vendor by limiting the purchaser’s right to object or assert other rights regarding the defect.
You should discuss any potential defects in the property with your solicitor. Feeling overwhelmed by the terminology used in conveyancing transactions? Contact the friendly and experienced team at Everingham Solomons because, Helping You is Our Business.
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In order for residential property in NSW to be advertised for sale, a Contract for the Sale of Land is required to be prepared. Whether you decide to sell your property through a real estate agent or privately, you are still required by law to have a Contract prepared. It is therefore important that vendors understand their obligations, especially in situations where vendors have privately listed their property for sale via an online platform.
Briefly speaking, a Contract consists of terms and conditions together with mandatory prescribed documents.
There are numerous terms and conditions contained in the Contract which are standard form, however, can appear quite daunting. Accordingly, vendors should approach a qualified solicitor or licenced conveyancer to assist in the preparation of their marketing Contract, at the earliest opportunity. Further, most solicitors and conveyancers also insert certain special conditions into the Contract, to protect a vendor’s interests and to assist in the selling process.
Also contained in the Contract are prescribed documents. These include, but are not limited to, title and plan searches of the land together with a zoning certificate and sewer diagrams. Any further documents recited on the title search are required to be attached to the Contract. For instance, documents relating to any easements, rights of way, restrictions on the use of land, etc. If a swimming pool is located at the property, a valid certificate of compliance or non-compliance, or relevant occupation certificate is also required to be annexed to the Contract.
It is important that the Contract is correctly prepared prior to the property being listed for sale to ensure the transaction is processed with due speed and minimum inconvenience to all parties. In particular, vendors should check that the improvements, inclusions and exclusions (if any) are correctly recorded in the Contract. Vendors should also carefully review the title and plan searches, and other prescribed documents to ensure they accurately depict the property. Addressing errors or omissions at the first opportunity avoids the added stress of attempting to deal with such issues once other parties become involved.
Having a Contract which is not properly prepared can have dire consequences. For example, a Contract which does not comply with legislation, entitles a purchaser to withdraw from the sale prior to settlement.
At Everingham Solomons, we strive to provide our clients with timely, proper and expert advices because Helping You is Our Business.
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A Building Information Certificate is issued by the Local Council for the whole or part of a building. The certificate is a confirmation from Council 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. The certificate also provides a confirmation that Council will not initiate proceedings with regard to any encroachment by the building onto land either owned or controlled by Council. The certificate is issued for a specified period, being a period of seven (7) years and only covers such matters which exist or occur at the time of issue of the certificate.
In order to apply for a certificate, an application must be lodged with Council. This application can be lodged by either:
the property owner;
a party with the property owner’s consent;
a purchaser under an exchanged Contract for the sale of the property including their legal representative; or
a public authority who has issued to the property owner a notice of their intention to apply for such certificate.
In addition, a Survey Report of the property together with payment of an application fee are required to be lodged with the application. Depending upon the building and surrounding circumstances, Council may request further information to support the application. Presently, the minimum application fee is $250 and this fee increases depending upon the classification of the building. A Survey Report of a standard residential property is a minimum cost of approximately $1,000 (fees vary between surveyors).
Those who should give serious consideration to obtaining a certificate include purchasers of property for which Council do not hold details of approval. For older properties, it is not uncommon for Council to not hold such details. Please note, purchasers seeking to apply for a certificate prior to exchange of Contracts require the consent of the property owner. For purchasers seeking to apply after exchange of Contracts, it is preferable to make the Contract conditional upon the issue of a satisfactory certificate.
Once the application for the certificate is lodged with Council, a mutually convenient time is scheduled for Council to inspect the building. Following the inspection, Council will either issue or refuse to issue the certificate. In the event Council refuses to issue the certificate, Council must notify the applicant and set out the reasons for its decision. Included in the reasons must be details of 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.
Feeling overwhelmed by the intricacies of property ownership? Contact the friendly and experienced team at Everingham Solomons, where Helping You is Our Business.
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Under the Local Government Act 1993 (NSW), an on-site sewage system requires an Approval to Operate from the Local Council in order to be operated lawfully. For an Approval to Operate to issue, and to remain force, the system must be inspected by the Local Council. Councils are permitted to charge fees for these inspections. Depending upon the risk rating of the system, the period for inspections varies from every 1-10 years. The Local Government (General) Regulation 2005 (NSW) outlines performance standards and operational requirements.
It is the owner’s responsibility to ensure the system is registered and operating satisfactorily. It is recommended that owners undertake their own inspections, in addition to Council’s inspections, to ensue systems are operated satisfactorily. A failing system could result in contamination including risks to health and the environment.
If your system is identified by Council as failing, a letter of non-compliance, or other similar document, will issue outlining the rectifications works required. The rectification works are the responsibility of the owner. There is usually a time limit for completion of the rectification works which is dependent upon the severity of the risks.
Most Local Councils provide Factsheets on their websites outlining owners’ responsibilities including how to obtain approval, requirements for ongoing operation, inspection information, associated costs, etc. The NSW Office of Local Government provides a helpful booklet titled “The Easy Septic Guide”.
Initial steps owners of on-site sewage systems should take are:
Number 1: review performance standards and operational requirements, and arrange to undertake a self-assessment of your system; and
Number 2: consult your Local Council to ascertain requirements and inspection fees, and arrange an inspection (if not recently undertaken).
It is advisable for any purchaser of property with an on-site sewage system to request evidence of the approval or undertake inspections to confirm compliance. Accordingly, if you are selling property which has an on-site sewage system, you may wish to consult Council sooner rather than later to avoid any delays in exchange of Contracts once a purchaser is found. As the Approval to Operate is issued to the owner and not the property, purchasers should ensure that the Approval to Operate is transferred into their names following settlement.
For further assistance and for all your property needs, contact Everingham Solomons where Helping You is Our Business.
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One area of recent reform to the Victorian Residential Tenancies Act is aimed at providing tenants with clear rights in relation to the keeping of pets. Currently, the Victorian Act permits landlords to include a ‘no pets’ clause in their residential tenancy agreements. However, changes to the Victorian Act will prohibit such clauses. Whilst tenants will still be required to obtain landlord’s consent, such consent cannot be unreasonably refused.
But what are the rights of landlords and tenants in New South Wales?
The NSW Residential Tenancies Act is silent in relation to allowing, prohibiting or requiring consent for the keeping of pets. Most landlords will include a term in their residential tenancy agreement whereby the keeping of pets is prohibited without their consent. Such a term is currently not prohibited in NSW. The result is that the consent of the landlord is at the landlord’s sole discretion, except in relation to assistance animals.
The standard form residential tenancy agreement published by NSW Fair Trading stipulates, as an additional term, that “The tenant agrees not to keep animals on the residential premises without obtaining the landlord’s consent”. The standard form also provides that “The landlord agrees that the tenant may keep the following animals on the residential premises:”. These additional terms can be deleted upon approval by the landlord and tenant at the time of entering into the agreement. It is therefore important that both the landlord and tenant understand the terms of their agreement at the time of entering into the agreement.
Accordingly, the keeping of pets in residential rental properties in NSW is, in most instances, at the sole discretion of landlords and tenants, except where a strata scheme is involved. Most strata schemes will have a by-law restricting animals without the owners corporation’s consent or a by-law prohibiting animals altogether.
For tenants entering or currently in the rental market who are considering or already have a pet, the RSCPA makes several recommendations in facilitating a pet-friendly rental. For instance, preparing a pet resume with information on the pet together with references including previous landlords and supplying images of enclosures for birds or pocket pets.
One of the major concerns landlords have when considering consenting to the keeping of pets is the potential for property damage. One of the major concerns for tenants is having freedom within their rental property. Understanding each other’s concerns and obligations, and addressing potential issues at the outset may alleviate potential disputes.
For all your property needs, contact Everingham Solomons because Helping You is Our Business.
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PEXA is a platform for e-conveyancing and facilitates an electronic settlement of your sale or purchase of land in real-time. Put in its simplest form, it is part of the e-conveyancing process that deals with property settlement and land registration, and is supported by legislation nationally. It is anticipated that by 1 July 2019, electronic settlements will be compulsory in NSW.
Most conveyancers and solicitors are making the move towards electronic settlements now as it provides greater certainty and security of a successful property settlement. Whilst there are various factors that can impact a property settlement, a simple matter of documents not arriving or a cheque being spelt incorrectly can delay a settlement by days. This can cause significant stress, especially for vendors who are relying on settlement funds or for purchasers having to reschedule removalists.
PEXA removes the manual aspect of property settlements. Therefore, there is no need to wait for settlement documents to arrive or to rush to the bank to organise bank cheques. In fact, an electronic settlement uses electronic funds transfers which have a faster clearance period.
PEXA also facilitates real-time lodgement of documents including the validation of documents prior to settlement. In a manual settlement, it can be weeks after settlement before a Transfer is registered. If the Transfer is requisitioned by the Land and Property Information, the process can be even longer. This results in delays in notification to the applicable government departments of the change in ownership. Whilst rare, this delay can also cause issues in the event new legal interests are registered on the title prior to registration of the Transfer.
We are still in the transition period for electronic settlements. It is, therefore, important you discuss with your conveyancer or solicitor whether it is available in your sale or purchase as all parties must be agreeable to processing the transaction via PEXA. There is also a fee in settling via PEXA, however, this fee is offset by the costs incurred in manual settlements including bank cheque, postage and agency settlement fees.
Everingham Solomons has and will continue to extensively invest in training for solicitors and staff to ensure a seamless transition occurs with the new system and to continually enhance client service quality.
At Everingham Solomons, we aim to process your transaction with due speed and minimum inconvenience to you because Helping You is Our Business.
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With the increased use of online services across all areas of our lives, cybersecurity is extremely important. Particularly in conveyancing transactions where large amounts of money are transferred between accounts.