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 16, 2012 Leave a comment
A new collaboration between Russell Cocks, Michelle Lember and By Lawyers For Lawyers is 1001 Convyeancing Answers QLD. Designed to provide easy to find, short, sharp answers to common questions that arise in day to day conveyancing practice in QLD.
1001 Conveyancing Answers is a respected and trusted resource used by hundreds of Australian law firms as it provides practitioners with a complete suite of tools and comprehensive information to provide quick answers to resolve questions and areas of uncertainty in relation to conveyancing matters within Queensland.
View 1001 Conveyancing Answers QLD on Smokeball
February 15, 2012 Leave a comment
A new addition to our ‘Step-by-Step’ library is Leasing (SA), a practice guide and legal precedent forms covering the law in South Australia (SA) in relation to leases whether they be Retail, Industrial Commercial or Rural, Business.
By Lawyers for Lawyers are the author of the Leasing (SA) Step-by-Step Legal Practice Guide and Precedents
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 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
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
June 16, 2011 Leave a comment
The recent case of Ilvariy Pty Ltd t/as Craftsmen Homes v Sijuk [2011] NSWCA 12 deals with the duty owed by an occupier to provide a safe work site for sub-contractors. As public liability policies rarely cover sub-contractors and WorkCover policies don’t cover non-employees, a failure to address this issue adequately in the precedents will result in an occupier – often not a person present on the site – having an uninsured and non-delegable risk. Read more of this post
June 6, 2011 Leave a comment
The Residential Tenancies Act 2010 commenced on 31 January 2011 with sweeping changes to the old regime. Including a new standard lease. The new legislation replaces the old Residential Tenancies Act 1987. The new laws apply to all residential tenancies in NSW and represent a comprehensive review of the existing laws. There are over 100 changes to the old legislation. Many of these will impact on clients who are landlords of residential property. Particularly when they are buying or selling a property. 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
February 23, 2011 1 Comment
One of the fundamental concepts in relation to a contract of sale of land is that the contract must be in writing and signed by the parties (or at least ‘the party to be charged’). This requirement can be traced back to the Statute of Frauds of 1677 and can now be found (if you know where to look) in s.126 of the Instruments Act. The requirement that a contract be signed was designed to prevent fraud by preventing one party to an agreement claiming or denying that an enforceable contract existed in situations of uncertainty. By requiring a signature the law created certainty. Read more of this post
