There have been some concerns in recent years regarding the notion of “equitable” rights over property. That is, the claim that one party holds a property “on trust” for the other party due to an alleged promise that the property would one day be passed on. This issue has been raised particularly where one party has been allowed to live in a house (and undertake renovations etc), with the often argued expectation that the house would one day be theirs.
In the recent case of Wheeldon [2011], the wife in a family law dispute sought a declaration that the husband’s parents held a property on trust for the husband. Following this the wife also sought orders that the property be transferred to the husband and a half share be transferred to the wife.
The wife claimed that a month before the marriage, the husband’s father told the couple that they could live at the property if they paid its rates. They lived there for 26 years and raised two children there. The wife argued that the property was held in trust because they were encouraged that the property was a gift.
In taking into account the husband’s parents denials of any conversations that may have promised a gift of property, Fowler J rejected the wife’s claims and found that the husband and wife had been “given permission to occupy the property and no more.”
This case should act as a reminder to anyone entering into an arrangement for the occupation of a home to ensure that the terms of the occupation are well defined and preferably documented. The legal owner of the house should be very wary about anything that is said or alluded to, which may encourage the occupier to believe the property will be theirs. Similarly, the occupier of a home that may be of the belief the property will be theirs should be cautious with any money they spend on improving the property on the (mis)understanding that the property will pass to them.
Should you require advice in relation to the ownership of property or what constitutes the assets of a marriage, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Whether you are buying your first home, or relocating, purchasing property can be daunting. If you are considering buying at auction then the experience can seem all the more confronting. The experience need not be a daunting one as long as do your homework. To assist you, the following information may provide some guidance as to what to expect and how best to prepare for the big day.
An auction provides the venue through which buyers and sellers come together to permit interested buyers to make bids on property they wish to purchase. If you are the successful bidder at an auction, you will be required to sign the Contract and pay your deposit then and there. Most importantly, if you buy at an auction, you are immediately bound by the terms of the contract. It is for this reason that you need to attend an auction well prepared.
Being prepared means, at the very least, thinking about the following:
A couple of weeks before the auction, ask the real estate agent for a copy of the contract. You should then take the contract along to your solicitor and have them explain the terms of the contract to you to ensure that you know what you are purchasing before committing yourself at auction.
Next, you should consider whether you wish to obtain pest and building reports for the property. If you find termites after the auction, it may be too late to do anything because your rights to claim compensation are very limited.
If you are borrowing money to finance your purchase, it is crucial that you make sure you have formal finance approval in writing from your lender. If you purchase a property at auction without formal finance approval and there is a hiccup in getting your finance before settlement, then you risk losing your 10% deposit and the property. You also need to speak to your lender about arranging to have a deposit ready to hand over on the day of the auction.
On the day of the auction, the real estate agent will provide you with a bidder’s guide. This guide contains important information for would-be purchasers intending to bid at an auction. One final tip would be to attend an auction or two as a spectator to familiarise yourself with the auction process.
At Everingham Solomons we can help answer all your questions about buying or selling your property at auction because Helping You is Our Business.
Click here for more information on Lesley McDonnell
In a recent full Federal Court decision, a New South Wales property developer purchased a single story house, intending to develop it into units for use other than for residential accommodation. At the time of settlement the home was occupied by a tenant. The developer adopted the view that the sale was a taxable supply because it was his intention to develop the land into commercial units and consequently claimed a tax credit from the ATO.
The ATO took a different view.
The GST legislation provides that the supply of property is not subject to GST if the premises are to be used predominantly for residential accommodation. The issue was whether the property was to be used predominantly for residential accommodation.
The developer contended that the question as to whether the premises were to be used predominantly for residential accommodation is to be determined by reference to the subjective intentions of the developer. The developer asserted that it intended to develop the property at the end of the tenancy period for uses which were not predominantly for residential accommodation.
The full Federal Court dismissed the developer’s submissions and determined that the test as to whether residential premises are to be used predominantly for residential accommodation should be determined objectively by reference to the physical characteristics of the property as at the date of acquisition and that the intentions of the future owner are irrelevant.
The implications of GST must be considered in every property transaction. It is still an area which is fraught with uncertainty.
At Everingham Solomons we have the expertise to assist you with all of your property and development matters because Helping You is Our Business.
