To bring a tenancy to an end you must provide written notice to the landlord or managing agent, in a specific timeframe depending on your situation. When your fixed term is ending – if you want to leave at the end of your fixed term lease you need to give the landlord at least 14 days’ notice. You can provide this notice at any time up to the very last day of your fixed term. If your fixed term has already ended – if you have continued to rent the premises, say on a week to week or month to month basis, you need to give the landlord at least 21 days’ notice. When the Landlord has decided to sell the property – if you are still in your fixed term you can end your tenancy by giving the landlord at least 14 days’ notice. This however doesn’t apply if your landlord advised you of their intention to sell the property before you entered into the tenancy agreement. When the landlord gives you notice – if you have been given a notice of termination, you are entitled to move out before the notice ends. If you are at the end of a fixed term agreement you must pay rent until the Lease term ends, otherwise you only need to pay rent up until you vacate the property.
Under no circumstances should you ever stop paying rent, even if there is a dispute with the landlord. This is a breach of the lease agreement. Victims of domestic violence – new legislation introduced in February this year has created a provision that applies if you are in a domestic violence situation. In these circumstances there is no minimum notice period, however you must provide specific evidence to the Landlord as well as a domestic violence termination notice to both the Landlord and any of your co-tenants. The evidence that may be used in this situation is a declaration from a Medical Practitioner, a Domestic Violence Order, Family Law injunction or a Conviction Certificate.
Different rules apply for Commercial, Industrial and Retail leases.
Confused about your rights as a tenant? Contact the team at Everingham Solomons, because Helping You is Our Business.
If you are renting out your property, your property is likely to need maintenance from time to time. You may consider a handyman or woman to do the “easy jobs” like replacing tap washers or taps, repairing or replacing leaking toilets and cisterns as a good low cost alternative to engaging a licensed contractor.
However, when hiring someone to do any plumbing work, you must make sure they hold a current licence. Only a qualified and licensed plumber and/or drainer can legally undertake repairs such as but not limited to:-
Replacing tap washes or taps
Repairing or replacing leaking toilets and cisterns
Repairing or replacing a hot water service
Repairing water leaks
Clearing or repairing blocked sewer lines
Any person doing plumbing repairs for a payment who is not suitably licensed is breaking the law and can be fined $1,100.00. If the person engaging them does so knowing that the work can only be undertaken by a suitably licensed plumber, that person is also breaking the law and can be issued with the same fine.
At Everingham Solomons, we can assist you with your property queries because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
When selling your property, it is usual for a purchaser to pay 10% of the purchase price as a deposit for the property. This money is usually held by the Real Estate Agent and under the standard conditions of the Contract can be recovered by Vendor if the Purchaser defaults on the Contract.
However, it is becoming increasingly more popular for Purchasers to ask if you will accept a 5% deposit or sometimes even less.
So what happens if you accept a lesser deposit?
Most of the time, the transaction is completed as normal and the money that would have been held as a deposit is simply paid to the Vendor at settlement. But if the Purchaser defaults on the Contract, can a Vendor claim the balance of the 10% deposit?
The Courts have discussed this exact situation during a number of cases and generally the answer is no.
The Case Law suggests that the Courts will only allow a Vendor to claim the full 10% deposit in circumstances where the Vendor can prove that the 10% is a genuine pre-estimate of the loss suffered by the Vendor.
Typically, if a Vendor accepts a deposit smaller than 10% of the purchase price, Solicitors will draft a special condition that specifically notes that the balance of the 10% deposit becomes payable upon completion or upon the default of the Purchaser. In theory this sounds good, but despite the intention of this clause, it is often not enough to allow the Vendor to recover the balance of the 10%. The Court’s usual view of these special conditions, is that any condition that relies on the default of a Purchaser to make something come into effect, is a penalty and as such will not be recoverable.
If you are considering accepting a deposit smaller than 10% of the purchase price, you should think carefully as there are no guarantees that you will be able to recover the balance of the 10%, despite the intentions of the Contract.
If you are concerned that you will lose the Purchaser if you do not agree to a lesser deposit, there are other options for payment of a deposit including a deposit bond. Deposit bonds are usually for the full 10% Deposit and upon a default can be recovered by the Vendor for it’s full value.
Selling your property can be stressful and it’s important to know your rights. Everingham Solomons has a dedicated property team who can help take some of the stress away because, Helping You is Our Business.
Changes to the law in NSW has implemented a no meter, no pump policy under the Water Reform Action Plan. Greater penalties now exist for Water Licence holders who do not comply with the obligation to install a properly working meter.
Under the plan, it will be an offence for Water Licence holders to:
Fail to comply with the conditions of a Water Licence or works approval which requires the installation of a meter;
Fail to install metering equipment when required;
Take water from a metered water supply work if the meter is not working properly;
Interfere with, damage, destroy or disconnect any metering equipment; or
Fail to keep the required metering records.
In addition, the Natural Resources Access Regulator (NRAR) has been established in New South Wales to investigate and enforce meter installation and compliance. NRAR have indeed been active and a number of prosecutions are underway. The NRAR acts on anonymous complaints and have very wide powers of investigation.
The fines vary depending on the severity of the offence. The maximum penalty for a breach is $1.1 million and/or prison terms of two years for an individual and in the case of a continuing offence, a further penalty of $132,000 for each day the penalty continues. For corporations, the maximum penalty is $5.005 million and in the case of a continuing offence, a further penalty of $264,000 for each day the offence continues.
The Commonwealth government has increased funding for water use efficiency projects known as the Murray–Darling Water Infrastructure Program and will provide $1.5 billion dollars funding for water efficiency projects in return for the transfer of an agreed volume of water saved.
The types of eligible projects include:
Improving irrigational layout and design;
Permanent planning to improve water efficiencies;
Computer and automation equipment to help manage farm watering operations;
Improving and reconfiguring water storage systems including channels/replacing them with piping or close channels.
We have the expertise to assist you in knowing the conditions imposed on your licence, in assisting should you be subject to a NRAR investigation or should you be interested in reviewing water saving projects involving subdivision and transfer of water entitlements, because at Everingham Solomons, Helping You is Our Business.
In every Contract there is a set time for Completion, or ‘Settlement’ as it is often called. The time for Completion can be a set number of days or weeks after exchange takes place (eg 42 days or 6 weeks), or a set time after another event takes place (eg 14 days after a plan or subdivision has been registered).
Completion or Settlement is essentially when the Purchaser hands over their money and takes title to the property.
It is crucial that a purchaser in a property transaction is aware of the date that Completion is due under the Contract, as there are serious consequences when Completion doesn’t take place on time.
Most Contracts contain a condition that the Purchaser of a property may be charged penalty interest by the Vendor if Completion does not take place on the due date. The interest rate usually varies between 8 and 10 percent and is payable on the outstanding purchase price due at completion (that is, the purchase price less any deposit paid). Depending on the price of the property, the daily interest amount can be hundreds of dollars per day, for every day you are late settling your purchase.
Most Contracts also contain a condition whereby the Vendor’s representative can issue a Notice to Complete, which gives the Purchaser a further term (usually 14 days) to complete the Contract. This notice makes the completion time an “essential” term of the Contract. If completion does not take place at the end of the further term, the Contract can be cancelled and the Vendor may keep the deposit paid, usually equal to 10% of the purchase price.
On top of this the Vendor may also take action against the Purchaser for their costs on the resale of the property (eg agents fees) and also seek compensation if the property is sold for a lower sale price.
Purchasing a property is a rewarding but sometimes stressful exercise and it’s important to know your obligations under a Contract. The team at Everingham Solomons have the expertise to assist you, because Helping You is Our Business.
Despite the recent rainfall received in the area, there has not been any significant inflows into the state’s water storages. On 31 March 2019, the Minister for Regional Water made an order for temporary water restrictions under Section 324 of the Water Management Act 2000 (the Act).
Under Section 324, the Minister has the authority to order temporary water restrictions within a water source for a specified period if those restrictions are determined to be in the public interest. Under Section 324(1), public interest includes “to cope with a water shortage, threat to public health or safety or to manage water for environmental purposes”.
The order imposes temporary water restrictions on certain takes of water from the Lower Namoi Regulated River Water Source, the lower parts of the Namoi Unregulated Rivers Water Sources and the lower parts of the Macquarie Bogan Unregulated Water Sources.
WaterNSW customers have been notified if these restrictions affect your water access licence or approval.
On 30 April 2019, WaterNSW released the Regional Drought Update which showed that general security access licences, mainly held by irrigators in NSW will have zero allocation in both the Namoi and the Peel for 2019/2020 if the conditions remain dry. The report indicated that Keepit Dam is currently at 0.7% of active capacity and that the Tamworth Water supply is only secure through to July 2020
If you are a Water Access Licence or Approval holder, the above restrictions will have an impact on your current conditions of your licence or approval. If you need assistance in understanding your current conditions, please contact Everingham Solomons because Helping You is Our Business.
Before you can advertise a residential property for sale you are required by law to have a copy of the Contract available for prospective Purchasers to inspect. This is required whether you propose to sell through a Real Estate Agent or privately.
To enable a Contract to be prepared you should contact your Solicitor or Conveyancer as soon as possible to avoid delays in getting the Contract prepared.
Legislation sets out various documents and certificates that are required to be attached to the Contract, failure to attach these could potentially give the Purchaser a right to get out of the Contract after Contracts have exchanged.
In addition to title searches, a Planning Certificate and Sewage Service Diagrams being attached to the Contract, the following additional documents may be required depending upon the property and work which may have been carried out:-
Swimming Pool Certificate of Compliance if you have a swimming pool or spa;
Home Warranty Insurance now issued under the Home Building Compensation Fund is required if you have undertaken residential building work in the last six years (for structural work) or two years (for non-structural work) and where the value of the building work is over $20,000.00;
Final Occupation Certificate if you are selling a newly constructed dwelling or a dwelling where you have carried out additions which required Council approval.
There may be issues that may be prudent to be disclosed in the Contract ie things like illegal building work; fencing disputes; any issues with encroachments by or upon the property ie is a structure located over a boundary.
This is certainly not an exhaustive list however it should assist when you start thinking about your property and what you should be discussing with your Solicitor or Licensed Conveyancer.
If you are looking at selling a hobby farm; rural property, commercial or industrial property, there are likely to be numerous other issues to take into consideration in preparing your property for sale.
Ready to take the next step? Contact the property team at Everingham Solomons, because Helping You Is Our Business.
This is an often asked question. Typically, someone will have bought a property at auction in their own name, or from an off-the-plan development and then decide they want to buy the property in the name of their spouse or some other entity like their super fund.
The decision to change names often happens after they have discussed the purchase with their accountant and/or solicitor and things like asset planning and estate planning are raised.
Most people seem to think they can simply change the “purchaser” on the contract by inserting the words “or nominee”.
That process in most cases will not work and will result in you paying double Stamp Duty.
In NSW, the name on the Contract needs to be the same name on the Transfer document. On a $1,000,000.00 purchase price, the Stamp Duty payable by the purchaser is $40,490.00.
If the purchaser on the Transfer is different to the person on the Contract, then the Transfer will be treated as a sub-sale, resulting in a second or additional Stamp Duty amount of $40,940.00 being payable on the Transfer document.
There is an exception; for some limited circumstances contained in Section 18(3) of the Duties Act. This Section allows the ultimate purchaser to be a different person from the purchaser in the Contract, so long as they are related persons.
A related person includes a spouse, parent and child. It can also be a private company where the person is a director or majority shareholder of that company. It can also be a Trust where the natural person is a beneficiary of the trust.
The crucial point when applying S18(3) and which is often missed, is that the ultimate purchaser must have been “related” when the Contract was entered into. So you cannot form a company or trust after the date of the initial Contract.
If the “related person” exemption is not available, then your only real alternative is to attempt to persuade the vendor of the property to rescind the original Contract by mutual agreement and enter into a new Contract.
Sometimes this is possible; however, invariably you end up paying yours and the sellers the legal costs of the rescission of the initial Contract and the new Contract. Sometimes the vendor simply does not want to be involved in such a process
The best option in all cases is to seek appropriate advice as to the purchasing entity and buy it in the correct name from the very beginning.
Our property team at Everingham Solomons can assist you with all your property related matters because Helping You is Our Business.
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.
Click here for more information on Jessica Wadwell
Quite often I come across sellers, testators and mortgagors wherein their names are incomplete or otherwise different from their identification documents (ID) i.e. driver’s licence, passport, birth certificate 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, mortgages and transferring shares.
These discrepancies can result in delays finalising your property transaction, in some cases breach of contract, issues with selling your shares and can result in increased transaction costs, delay and frustration.
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
Old errors, perhaps from missing or incorrectly spelt names when a seller originally purchased the property or data entry errors made by land 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 set out in our identity documents, and 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.
To bring a tenancy to an end you must provide written notice to the landlord or managing agent, in a specific timeframe depending on your situation.
If you are renting out your property, your property is likely to need maintenance from time to time. You may consider a handyman or woman to do the “easy jobs” like replacing tap washers or taps, repairing or replacing leaking toilets and cisterns as a good low cost alternative to engaging a licensed contractor.
When selling your property, it is usual for a purchaser to pay 10% of the purchase price as a deposit for the property. This money is usually held by the Real Estate Agent and under the standard conditions of the Contract can be recovered by Vendor if the Purchaser defaults on the Contract.
Changes to the law in NSW has implemented a no meter, no pump policy under the Water Reform Action Plan. Greater penalties now exist for Water Licence holders who do not comply with the obligation to install a properly working meter.
Before you can advertise a residential property for sale you are required by law to have a copy of the Contract available for prospective Purchasers to inspect. This is required whether you propose to sell through a Real Estate Agent or privately.
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”.