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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Are you in Year 12 at Tamworth, Quirindi, Gunnedah or Manilla?
Are you wanting to study Law next year at University?
Great news – the applications are now open for the Sir Adrian Solomons Memorial Law Bursary
Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.
The Sir Adrian Solomons Memorial Law Bursary has long provided financial assistance for the successful applicant during their first year of university as well as an opportunity to gain valuable paid work experience in our offices periodically throughout the duration of their studies.
Everingham Solomons will also be making a cash donation to the school of the successful applicant to assist in maintaining the excellent educational standards that our region can offer.
Local High Schools have been contacted and advised of the details. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.
We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.
The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career. The Bursary is also open to students currently undertaking a gap year who will be commencing university study in 2023.
Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply. Applications will be accepted until Thursday, 12 January 2023.
If you would like more information on the Law Bursary, please contact Everingham Solomons because, Helping You is Our Business.
Quite often I come across sellers, testators, shareholders, lessors/lessees and mortgagors/mortgagees wherein their names are incomplete or otherwise different from their identification documents (ID) i.e. birth certificate, driver’s licence, passport and marriage certificate (if applicable).
The spelling of your name is critical when preparing any legal documents for example your Will, Power of Attorney, Appointment of Enduring Guardian, sale and purchase of Land Contracts, Leases, Mortgages and transferring of Company Shares.
These discrepancies can result in delays finalising your property transaction, in some cases causing a breach of contract and can result in increased transaction costs, and frustration. It can also cause issues or delays with selling your shares if you want to hit the market at its peak.
There are many reasons for the inconsistencies, however the most common are:-
Anglicised names (which buyers/sellers/shareholders may commonly go by in day to day life) are not always the same names as reflected on their legal ID documents
Marriage (or breakdown of marriage) where the seller has changed their name since purchasing the property or shares
Missing middle names, which buyer/seller/shareholder may not use all the time, accidently being omitted from the legal documents i.e. Contract for Sale or Purchase of Land/Share Transfer Forms/Will/Power of Attorney etc
Testators/donors providing misspelt names of their executors, beneficiaries and attorneys.
Old errors, perhaps from missing or incorrectly spelt names when a seller originally purchased the property/shares or data entry errors made by land/ share registry at the time
Foreign names where there is unfamiliarity. In some cultures, the christian name is written last and the surname is written first for example, Liu Jianguo, in Chinese would be Mr. Jianguo Liu using the Western style.
As we are moving towards a more digital world, it is becoming more important for us to use our full legal name as set out in our identity documents, and we need to ensure our full legal name is used on all documentation in any legal process.
At Everingham Solomons, we have the expertise to assist you because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Under the Firearms Act 1996 (NSW) (“the Act”), to possess or use a firearm a person must be authorised to do so, by either a firearms licence or permit.
Section 8 of the Act provides a person who holds a firearms licence (“the licensee”) is authorised to possess or use a registered firearm of the kind to which their licence applies, but only for the genuine reason they have for possessing or using the firearm. It is an offence to possess or use a firearm without authorisation.
The Commissioner of Police has broad ranging powers to revoke a firearms licence via automatic, mandatory, and discretionary decisions.
Automatic Decisions
A licensee’s licence is automatically revoked by operation of law if they are subject to a firearms or weapons prohibition order (s 24(1)), a final AVO (s 24(1)) or they cease employment in their position that allowed them to have off duty possession of pistols (like armed security guards).
Mandatory Decisions
These mandatory decisions relate to armed security guards that fail to undertake required firearms training, their Security Licence is revoked under the Security Industry Act 1987 (NSW) and/or the security licensee breaks any condition of the firearms licence.
Discretionary Decisions
Under s 24 of the Act, the Commissioner can revoke a licensee’s firearms licence:
For any reason for which a licence application may be refused;
For any contravention of the Act or Firearm Regulations;
For any contravention of a condition of the licence;
If the Commissioner believes the licensee is not a fit and proper person to hold a licence;
If the Commissioner is satisfied that the licensee through either negligence or fraud has caused a firearm to be lost or stolen; and/or
For any reason prescribed in the Firearm Regulations
What are your options if the NSW Firearms Registry revokes your firearms licence?
Under s 75(1) of the Act, the revocation of a firearms licence is a reviewable decision. The first step is to request an internal review of the decision by the Firearms Registry. If this review is unsuccessful or the registry doesn’t respond within 21 days your only option is to apply to the New South Wales Civil and Administrative Tribunal (NCAT) to review the revocation decision. This will involve presenting evidence to the Tribunal as to why the revocation should be overturned.
Challenging a revocation to a firearms licence can be quite complex, so for this reason we would invite you to speak to one of our specialist team as Helping You is our Business.
In recent legal news, the Mandatory Disease Testing Act (NSW) 2021 is now in force.
The new Legislation will allow heath, emergency services and public sector workers to request that a Mandatory Disease Test be conducted on a person who’s bodily fluids come in contact with the worker, while performing their duties, arising out of a deliberate act that causes the worker to be at risk of contracting a disease.
Essentially if a worker meets the above criteria, they will be required to meet with a medical practitioner within 24 hours (or as soon as reasonably practical, but no later than 72 hours after contact) to discuss their contact with another person’s bodily fluids.
Once this has occurred a senior officer can either make the mandatory order against the perpetrator of the fluid event or if that person is a vulnerable person, make an application to the Courts to make an order, requiring the perpetrator to submit to mandatory testing. The senior officer or the Court can also refuse to make the order if they feel that an order is not justified or if the third party will not voluntarily submit for disease testing.
It is an offence to fail to comply with a mandatory disease test order and also if you are a worker who provides false or misleading information to a senior officer. The penalty for both of these offences is a maximum of $1,100.00 or 12 months imprisonment or both.
The Solicitors at Everingham Solomons, keep up to date with all the latest legal news, so that you don’t have to, because Helping You is Our Business.
A landlord of a residential premises is permitted to sell their property even while it is currently being occupied by a tenant. However, the landlord must comply with certain requirements of the Residential Tenancies Act 2010 (NSW) to prevent interfering with the tenant’s right of occupation of the property.
The landlord is required to provided notice of the sale of the property to the tenant. The notice must be given by the landlord, or their real estate agent, to the tenant at least 14 days before any potential purchasers are allowed to inspect the property. If this preliminary notice is not given to the tenant, the landlord has no right to access the property for the purposes of conducting an open house or allowing potential purchasers to inspect the property.
If the notice is provided to the tenant, then both the landlord and tenant must come to an agreement as to the days and times that the property will be available for inspection by potential purchasers. The tenant must not unreasonably refuse to make the property available for inspections; but, they are also not required to agree to allow more that two inspections a week. As long as proposed inspection times are reasonable, i.e. during daylight hours and not schedule for an excessive period of time, then there are no further requirements that the landlord must observe. It is up to both the tenant and landlord to reach an agreement that works for both parties.
If you require further assistance regarding any tenancy issues or advice in relation to the sale of your property, then contact a solicitor at Everingham Solomons because Helping You is Our Business.
It is not commonly known that during family law property settlements, your superannuation entitlements form part of the matrimonial or de facto asset pool. Superannuation differs from other assets such as real property, money and vehicles because it is technically held in trust by the super fund.
Part VIIIB of the Family Law Act 1975 allows for superannuation entitlements to be included and divided as part of the asset pool. When a parties superannuation is divided under Section 90XT, it is referred to as a ‘splitting order’. To action a splitting order, the party seeking the split must write to the trustee of the super fund to advise them of the proposed split they are seeking. This is referred to as granting the super fund ‘procedural fairness’ by notifying them of the intention and seeking the super fund’s approval.
It is a requirement of family law property matters, that parties disclose their financial positions to each other to allow for informed negotiation over the division of assets.
However, sometimes in family law matters which are particularly acrimonious, parties may attempt to hide their assets, including superannuation, from their former partner. This can lead to unnecessarily lengthy, frustrating and expensive experiences.
In an effort to increase the “visibility” of superannuation in family law matters, the (somewhat wordy) Treasury Laws Amendment (2021 Measure No. 6) Bill 2021 (Schedule 5) came into force on 1 April 2022. As part of this amendment, parties to litigated family law matters can now apply to the Federal Circuit and Family Court of Australia to find out what their former partners superannuation holdings are.
To make such an application, the applicant must be a party to family law property proceedings before the Federal Circuit and Family Court of Australia. The Court, after approving the request, communicates with the Australian Taxation Office, who in turn provide the requested superannuation information back to the Court. The information will typically include:
The name of the owner and their client number.
The identity of the Super fund and their ABN.
The reported balance and the date this was last reported.
This information is generally provided within a period of 7 days, making for a much quicker and simpler means for parties to Court proceedings to find out their former partners superannuation holdings.
On some occasions, parties may agree to exclude their superannuation entitlements from negotiations. However the inclusion of superannuation in the asset pool is important in examples where one party might be a stay-at-home parent, or otherwise not in the workforce for significant periods of time. Further, the older the parties are, the more likely their superannuation is to be high in value and comprising a significant asset.
At Everingham Solomons we have the expertise and experience to assist you with all matters relating to family law matters, because Helping You is Our Business.
Leases give a Tenant a right to exclusive use of a property. More simply they get a legal right to solely occupy and use a property as if it is their own. This means that no other person is allowed to occupy or enter a property without the consent of the Tenant.
So, what happens when the Landlord or their agent needs to get in for some reason?
Generally, a Landlord may need to enter a property so that repairs or inspections can be conducted, because the property is for sale or to comply with health and safety requirements.
In order to do this, they will need the consent of the Tenant.
Landlords and their agents also do not require consent if they are entering the property because of an emergency, to carry out emergency repairs or if they genuinely believe that the property is abandoned.
However, there are circumstances in which the Tenant’s consent is not required, if the Landlord has given a certain amount of notice to the Tenant.
The notice period in which a landlord is required to provide a tenant varies and comes down to the reason for which access is sought.
Here are some common reasons why a landlord might seek access and the required notice periods under the Residential Tenancies Act:
To complete an inspection: 7 days (Max 4 times in 12 months)
Carry out necessary repairs: 2 days
To comply with WHS obligations: 2 days
To obtain a property valuation: 7 days
To take photos to advertise property for sale: Reasonable notice (max once in 28-day period before marketing)
To show potential buyers: 14 days
You can, of course agree to waive the required notice period.
There are also some conditions in which a landlord or their agent is required to uphold. Normally, access is not allowed on Sunday’s, public holidays or at unreasonable times. They are also not allowed to stay in or on the property longer than is necessary to carry out their task.
At Everingham Solomons we have the expertise and experience to assist you in your leasing needs with our Accredited Specialist in Property Law on hand because Helping You is Our Business.
It is a commonly asked question, “When someone dies, who can request a copy of the deceased person’s will?” It is often both a confronting and sensitive question for many people to ask particularly when unlike the movies, there is no obligation on the executor of a will to hold a formal “reading of the will” following the death of the deceased person. In NSW, the answer can be found in section 54 of the Succession Act 2006 (NSW).
Section 54 provides that a person who has possession or control of the will of a deceased person must allow certain people to inspect or be given a copy of the will upon request at their own expense. In NSW, the following persons may inspect or be given copies of the will upon request being made to the person who has possession or control the will:
(a) any person named or referred to in the will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person.
Section 54 provides a right for eligible persons to inspect the will, while section 54(3) imposes a requirement on the person who has possession or control of a will of a deceased person to produce it to Court if the Court so requires. Accordingly, a person who has a right to inspect a will needs to bring an application seeking an order for production to the Court if their request to inspect the will of a deceased person is refused.
At Everingham Solomons we have the expertise and experience to assist you with with all matters relating to wills and deceased estates, becauseHelping You is Our Business.
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We have seen over recent times high profile media personalities and sports people lose their jobs based on what they have posted or said on social media in relation to political and religious views.
Their stance in response to such sackings may include “it’s a free country”, “I was off the clock”, and “I am entitled to my opinion and my right to free speech”. Whilst Australia is a free country and they are entitled to their opinion, it is not without consequences, and legally enforceable consequences at that.
An employer cannot terminate an employee for expressing a political or religious view, as they will be in breach of the General Protection provisions under the Fair Work Act, however, employers also have a right to protect their business. If the comments made by employees on social media and other public platforms, whether during work time or outside of work hours, are likely to cause the business harm then the employer may terminate the employee’s position. If you have an employee posting questionable content, or you have been terminated for expressing a view, please contact our office because Helping You is Our Business.
Click here for more information on Libby Campbell.
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.
Are you in Year 12 at Tamworth, Quirindi, Gunnedah or Manilla?
Under the Firearms Act 1996 (NSW) (“the Act”), to possess or use a firearm a person must be authorised to do so, by either a firearms licence or permit.
In recent legal news, the Mandatory Disease Testing Act (NSW) 2021 is now in force.
A landlord of a residential premises is permitted to sell their property even while it is currently being occupied by a tenant. However, the landlord must comply with certain requirements of the Residential Tenancies Act 2010 (NSW) to prevent interfering with the tenant’s right of occupation of the property.
It is not commonly known that during family law property settlements, your superannuation entitlements form part of the matrimonial or de facto asset pool. Superannuation differs from other assets such as real property, money and vehicles because it is technically held in trust by the super fund.
Leases give a Tenant a right to exclusive use of a property. More simply they get a legal right to solely occupy and use a property as if it is their own. This means that no other person is allowed to occupy or enter a property without the consent of the Tenant.
It is a commonly asked question, “When someone dies, who can request a copy of the deceased person’s will?” It is often both a confronting and sensitive question for many people to ask particularly when unlike the movies, there is no obligation on the executor of a will to hold a formal “reading of the will” following the death of the deceased person. In NSW, the answer can be found in section 54 of the Succession Act 2006 (NSW).