News, Updates and information from and about Smokeball.
May 3, 2012 Leave a comment
The recent decision in Sacks v Klein [2011] VSC 451 considered the well known distinction between joint tenancy and tenancy in common and the impact of the death of a co-owner. It confirmed that whilst co-owners may be registered as joint tenants (legal joint tenants) equity may nevertheless impose an equitable tenancy in common by way of a trust. Read more of this post
March 8, 2012 1 Comment
Land deposits must be held in trust pending settlement or prior release (s.24 Sale of Land Act). Vendors (and particularly their agents) often seek prior release pursuant to s.27 of the Act. A recent case has raised the possibility that release of the deposit may also have some unexpected consequences for the purchaser’s legal rights against the vendor. Read more of this post
February 7, 2012 1 Comment
A Sheriff’s sale is one of the true curiosities of the world of property law. To borrow a phrase ‘a riddle wrapped up in an enigma’. The urban myth conjures up visions of the dastardly Sheriff riding in on his pitch-black steed to wreck havoc on the ‘innocent’ villager and, as a recent case confirms, there is not likely to be a Robin Hood in the wings waiting to swoop in at the last minute to set things right, indeed, quite the contrary. Read more of this post
January 27, 2012 1 Comment
The Personal Property Security Act 2009
Many practitioners have expressed worries as to how the new legislation will affect them and fears that they will overlook actions they should take.
This is written to assist in quelling those fears.
January 19, 2012 Leave a comment
A lease (as opposed to a licence) undoubtedly creates an interest in land in favour of the tenant. A lease for more than three years may be registered on the title to the land and a lease for any period entitles the tenant to lodge a caveat. Registration of the lease will require production of the certificate of title and, in the normal course of events, an order to register from the registered proprietor. Read more of this post
December 5, 2011 Leave a comment
The law is objective – based on principles enunciated in cases and set out in legislation, but clients want subjective answers to their immediate problems. Nowhere is this more evident than the simple legal environment of the common or garden conveyancing transaction. It’s easy for the law to proclaim that the property includes fixtures, but not chattels. What the client wants to know is – is the dishwasher a fixture or a chattel? Read more of this post
November 4, 2011 1 Comment
The law requires us all to do, and not do, a lot of things. Specifically in relation to ownership of real estate, various statutory requirements impose duties on home owners and those engaged in the business of building homes. Indeed, failure to comply with those statutory obligations can result in the imposition of penalties for non-compliance. But the existence of those legal obligations and sanctions for breach do not normally impact on the relationship between vendor and purchaser, which is essentially governed by the fundamental legal principle of privity of contract. Read more of this post
October 10, 2011 Leave a comment
Receipt of a rescission notice is often a time of great stress in a conveyancing transaction. Such a notice is issued when a party defaults in performance of a contractual obligation (usually settlement) and gives the defaulting party 14 days to remedy the default. The party issuing the notice is entitled to claim costs (including legal costs) arising out of the default. What do you do if the legal costs claimed appear to be excessive? Read more of this post
September 16, 2011 Leave a comment
Lawyers should note the State Revenue Office (www.sro.vic.gov.au) Deceased Estates Exemption information of 2/9/2011 in regard to testamentary trusts and duties implications – ‘Section 42 Duties Act – Testamentary Trusts – (Latest Tax & Duty News)’: Read more of this post
September 2, 2011 2 Comments
A covenant, in the widest sense, is merely an agreement, or a term or condition of an agreement. Thus contracts include covenants, mortgages include covenants, and leases include covenants. But considered in the context of real estate, covenants have a particular meaning; being agreements that relate to the use of land. In this respect covenants epitomize the distinction between a contractual right, that only binds the parties to the contract and a proprietary right, that binds all of the world. Read more of this post
September 2, 2011 Leave a comment
The NSW Attorney General, Hon Greg Smith issued a media release on the 23rd August postponing the introduction of laws that require parties to take reasonable steps to resolve their disputes before they commence court proceedings. Read more of this post
August 4, 2011 1 Comment
The concept of a trust has a long history in the law. Its greatest claim to fame is as a weapon by which the conscience of Equity could master the harshness of the Common Law. Whilst the Common Law might demand that T be regarded as the legal owner of Blackacre, Equity would impose a trust in favour of B, and T would be deemed to hold that bare legal interest on behalf of B, the true beneficial owner. Read more of this post
May 4, 2011 Leave a comment
Last month I wrote about owner-builders and suggested that the only issue that causes property lawyers greater concern is GST. Perfectly on queue, changes have been made to the operation of the margin scheme within the GST regime and these changes are bound to cause heartache and pain, particularly in the hip-pocket nerve. Read more of this post
March 30, 2011 Leave a comment
Deposit release is one of the most misunderstood aspects of the conveyancing process. Like most attempts to explain any particular topic, it is best to return to basics to understand what it is that is trying to be achieved. Read more of this post
March 17, 2011 Leave a comment
The commencement of the Personal Property Securities Act 2009 has been deferred from May 2011 to October 2011 to allow more time to prepare for the changes. The reform introduces a single, national online register (the Personal Property Securities Register) which records the registration of security interests in personal property affording protection to lenders and giving secured parties, buyers and other interested persons a single searchable database. Read more of this post
