Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?

 In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

 

·         The origin of the electronic communications;

·         The destination of the electronic communication;

·         When the electronic communication was sent;

·         When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

·         The time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or

·         The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

o   The electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.

A Good Conveyancer Can Save You Many Thousands of Dollars

Two recent cases which came before the Queensland Courts illustrate very well the vital importance of ensuring that the Conveyancer that you appoint to handle your property sale or purchase is an experienced and high quality practitioner. In the case of Filmana Pty Ltd & Ors –v- Tynan and Anor, at the heart of the dispute was the question of whether the contract for the sale of the property in St Lucia in Brisbane was still on foot or whether negotiations about the possibility of a Deed of Rescission and a replacement Contract, which were inconclusive, had affected the validity of the Contract. The Court found that the original Contract remained on foot, and the Sellers obtained judgement against the Buyers for 2.8 million dollars.

In another case known as Petersen & Anor –v- Corby, the Court was again asked to make decisions in relation to a Contract which has not settled. In this case the Sellers asked the Court to give summary judgment on their Application but the Court has decided not to because of the uncertainty surrounding the Contract and whether or not, and if so in what way, it had been amended or changed. The situation in this case is made more complicated because the proposed Buyers Solicitors in the conveyancing transaction were New South Wales Solicitors who appeared not to be familiar with the intricacies of Queensland Conveyancing Practice. The Sellers claim for damages for breach of Contract against the Buyer will therefore proceed to a Trial, with all of the delay and legal expense that goes with that.

These cases highlight very clearly the need to ensure that you appoint a Conveyancer who has the skills and experience to deal with your transaction, but also the time that they need to be able to devote to ensuring it is done properly.

A View On Property

Anyone buying or selling property in Queensland needs to be aware of the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act. The affect of this Act is that anyone who owns a property is entitled to retain the view that exists at the time that they buy it. If that view subsequently becomes obstructed by a tree, on another property (which is more than 2.5 meters tall), then this Act of the Queensland Parliament enables the property owner whose view has been lost to take action to have the trees pruned or if necessary removed, in order to preserve their view.

A recent decision of the Queensland Civil and Administrative Tribunal has confirmed that this possibility exists, even for properties that were purchased many years ago, and long before this statute was passed. The recent case decided by the Tribunal dealt with one property purchased in the 1980’s and a neighbouring property upon which the trees had grown that was purchased in 2001.

A vital point to understand is that a Buyer is only entitled to the view that exists at the time that they buy the property. We can see this leading potential Buyers of property requiring the Sellers to enforce their rights to a view, to improve the outlook, before a prospective buyer signs the Contract.

Would you go Guarantor for your son or daughter?

Congratulations you paid off your home loan! Your children or child has all grown up and moved out. Now your looking forward to your retirement.

Now its time for your son or daughter to buy their first home or business or real expensive car and the bank will not lend them the money. They say they will not lend them the money unless they have a guarantor. Your son or daughter has promised that they can meet the repayments between themselves and their partner. Please mum and dad can you go guarantor for us.

The first thing that could happen is you could lose your own home and maybe even find yourself living on the street. As harsh as that sounds, unfortunately it happens. Your son or daughter may lose their job or become ill and not be able to make the loan repayments.

If you become a guarantor, what does it mean for you? A guarantor allows the equity in their home to be used as additional security for the Borrower’s loan. This can happen in a few different ways. All the equity in your home could be used as security or only a set amount could be used. Check the contract and ensure you fully understand what is required by you if your son or daughter can not make the repayments, for example if you have to repay the loan in full or only in part.

We know they may be family but it is essential that you get independent legal advice before signing anything. Never agree to any loan that is not scheduled to be repaid back by a certain date such as overdrafts or lines of credit. Do your checks and don’t get caught.

Your own solicitor for life or a one time offer

When you have decided to buy a home or a house for investment purposes, you will need a conveyancing solicitor. Many people will simply google “Conveyancer” or “Conveyancing solicitor” which will see a large variety in the quality of results that this produces. 

There are solicitors who as well as attending to your conveyancing can also support you in a range of other legal areas. It can be a concern, if your conveyancer only deals in conveyancing, as moving into a new home can potentially include a variety of areas of law. Should you need assistance in preparing new Wills, family advice, company advice, employment advice etc then you would want to have a solicitor that can support you in all your needs, not only during the purchase of your home, but for life. It would make sense that after spending many weeks with your solicitor and building a relationship with them that your lawyer deals with future requirements that you might have.

Otherwise, how does a simple, ‘cheap’ high volume conveyancer sound to you, where your matter is churned out as one amongst many and one has to hope that it was still completed correctly. Or would you prefer to build a long term relationship with a lawyer who is committed to ensuring that they provide you with a high quality personalised service as the foundation of a long term, ongoing relationship?

Copies of Community Management Statements in Sale Contracts – No longer required

By recent amendments to the Body Corporate and Community Management Act 1997 information required to be given by a Seller to a Buyer pursuant to Section 206 has been amended such that the requirement to disclose a copy of the Community Management Statement (commonly referred to as a CMS) on the sale of an existing lot has now been removed. It is no longer a requirement that a copy of the current CMS be attached to the Contract.

The writer is somewhat curious as to why this amendment has been made. The purpose of the original provision for the inclusion of a CMS in the Contract was for disclosure purposes to the Buyer (i.e. taking a consumer protection type approach)

Despite this change, it is strongly recommended that apart from the usual enquires from the Body Corporate, a copy of the CMS will need to be obtained and considered by any Buyers of community titled property. This responsibility for obtaining this CMS has now reverted back to the Buyer or the Buyer’s legal representative rather than that obligation being on the real estate agent (or other person complying the contract) to attach at the time the Contract is prepared.

Gold City Councils Local Law 17- Potential Rights to Terminate

The Local Law 17 which relates to the maintenance works and waterway areas commenced 5 July 2013. Broadly speaking Local Law 17 imposes disclosure requirements for Sellers and provides potential termination rights for Buyers. A useful information sheet has been issued by the Gold Coast City Council (“GCCC”). This may be found at http://www.goldcoast.qld.gov.au/local-law-no-17-maintenance-of-works-in-waterway-areas-2013-information-sheet-16990.html. The information sheet notes that disclosure requirements and potential termination rights relate to “relevant lots” which are those lots that have “specified prescribed works” completely or partially on the lot or are waterfront land connected to a specified prescribed work (example revetment walls, training walls, jetty’s or pontoons).

Despite the important impact of Local Law 17 in relation to properties in the GCCC region, there is no requirement to record the applicably of Local Law 17 on the title to affected properties.

Whether you are buying or selling any property in the Gold Coast area you may need to consider a number of additional factors including making specific enquires as to whether or not the property is a relevant lot for the purpose of Local Law 17 by examining the physical property and/or making enquires with the GCCC.

In summary Section 15 of Local Law 17 applies to a contract for the sale of a relevant lot (being a lot on which a specified prescribed work is completely or partially situated or a waterfront lot that is connected to a specified prescribed work). Section 15.2 provides that the Seller of a relevant lot must ensure that certain information is disclosed in the contract and if such information is not disclosed then the Buyer may have a right to terminate the contract.

Consequently, care should be taken when buying or selling property within the Gold Coast area to ensure that it is not caught or affected by Local Law 17. For completeness, a warning should however be given in that Local Law 17 may be affected by Section 57A of the Property Law Act. As result of the application of that provision in any potential termination may be contested and if so could potentially lead to protracted litigation and consequential costs.

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Our range of Conveyancing and Property Services:

We prepare contracts and/or contract special conditions, and provide legal services in relation to all types of property and conveyancing matters, including the sale and purchase of: 

• Houses and Residential Land.      
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• Lots in a Community Title Schemes (residential and commercial).
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