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Property law updates – QLD

28 March 2022 by By Lawyers

Various property law updates have been incorporated in the comprehensive By Lawyers reference manual 1001 Conveyancing Answers (QLD)

Recent judgments which have been added include:

• Contempree v BS Investments Pty Ltd & Anor [2020] QCA 255 – A long term lease that is not registered can still be enforced.
• Legal Services Commissioner v Sheehy [2018] 1 QCA 151 – Solicitors acting on behalf of two people, such as a married couple, require authority from both clients.
• Woolford v Oliver [2017] QMC 14 – Instalment contracts carry additional obligations and duties.
• K7 Developments Pty Ltd v Abbotsford Estates Pty Ltd [2021] VSC 422 – Judicial consideration of the consequences of a contract ceasing to be a Going Concern for GST purposes after contract and before settlement.
• Re Tucker; Nunan v Aylward [2019] VSC 210 – affirming that the younger joint tenant is presumed to have survived the older joint tenant, if time of death cannot be ascertained.

1001 Conveyancing Answers (QLD) is available in all By Lawyers Queensland conveyancing and property law guides. It assists property lawyers and conveyancers to understand the conveyancing process and to solve problems for their clients. The publication receives regular property law updates.

Filed Under: Conveyancing and Property, Publication Updates, Queensland Tagged With: 1001 Conveyancing Answers, property

1 January updates – All states

21 December 2021 by By Lawyers

1 January updates are always a big focus for By Lawyers. While the profession takes a well-earned break By Lawyers remains hard at work ensuring our publications are updated for legislative and regulatory changes that take effect from the new year.

Updates

This year’s 1 January updates for relevant jurisdictions include:

Land tax

In New South Wales and Victoria, land tax is calculated for the calendar year. Threshold values increase annually.

In New South Wales, the 2022 threshold combined land value has increased to $822,000 for all liable land. Special trusts and non-concessional companies are excepted. A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold, plus $100 applies from 1 January. If the aggregate taxable value exceeds the premium rate threshold of $5,026,000 then $61,876 is payable, plus a marginal tax rate of 2% over that amount.

In Victoria, the tax-free threshold for general land tax has increased to $300,000. The trust surcharge threshold remains at $25,000.

All relevant commentary and precedents in the By Lawyers Conveyancing and Property and Trusts guides for each relevant state will be updated for these new threshold amounts from 1 January.

By Lawyers Contract of sale of land

The 2022 edition of the By Lawyers contract will be available 1 January in the Sale of real property publications for Victoria and New South Wales. The contract is located in the Contract folder on the matter plan.

Leases and subleases

In New South Wales, Victoria, Queensland, South Australia and Western Australia the 2022 editions of lease and sub-lease precedents will be available from 1 January. these are found in the Leases – Act for Lessor section of each Leases publication.

Keeping up to date

In addition to our 1 January updates, By Lawyers updates our publications for 1 June and other regulated adjustments where necessary.

Of course we always update our content for relevant legislative amendments and other legal developments throughout the year, in all jurisdictions, as required.

Keeping up to date is one of the ways By Lawyers help our subscribers enjoy practice – and holidays – more!

The team at By Lawyers wishes everyone a prosperous and safe 2022.

Filed Under: Australian Capital Territory, Conveyancing and Property, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: 1001 Conveyancing Answers, conveyancing, land tax, land tax surcharge, leases, property, subleases

Title reform – Conveyancing – NSW

11 October 2021 by By Lawyers

Title reform – involving the cancellation of certificates of title and other changes to the NSW land titles system – commenced on 11 October 2021. Certificates of title are abolished and the Torrens Register is the single source of truth as to a person’s interest or estate in land. All documents to be registered on the Torrens Register must be lodged by a subscriber, who must verify the identity of the client and establish that they have the right to deal with the land.

These significant changes were introduced in part by the Real Property Amendment (Certificates of Title) Act 2021. The Act provides for the cancellation of certificates of title (CTs) and progression towards 100% electronic lodgment of land transactions.

Title reform  – Cancellation of certificates of title

From 11 October 2021:

  • All certificates of title have been cancelled and will no longer be issued.
  • Existing CTs cannot be required to be produced to have a dealing or plan lodged for registration.
  • Practitioners no longer need to obtain a copy of the CT from their client for a property dealing.
  • Banks are no longer issued with ‘control of the right to deal’ (CoRD) and all recordings relating to CoRD holders have been removed from the Register.
  • Banks can no longer be asked to provide CoRD holder consent in a workspace when a mortgagor wants to lodge a dealing for registration, including a subsequent mortgage.
  • Mortgagee consent still needs to be obtained for the registration of certain dealings.
  • Subscribers are no longer requested to enter the CAC (Certificate Authentication Code) details taken from a CT for consent purposes in the workspace. The concept of the CAC is redundant and is no longer required to be kept securely.
  • Where a subscriber has relied on a CT to establish a right to deal in a transaction conducted before 11 October 2021, the CT or a copy of it must be retained, in line with the requirements for retaining supporting evidence in the NSW Participation Rules.
  • Otherwise, firms holding CTs in safe custody after commencement of this title reform have the following options:
    • seek instructions from each client on what to do with their CT;
    • return all CTs to clients;
    • take a ‘do nothing’ approach.

It is not necessary for firms to stamp a CT as cancelled or mark it in any way if returning it to their client.

Information Notice

From 11 October 2021, in all instances of property ownership, an Information Notice will issue. Details on this notice will include the folio identifier, the dealings registered including registration numbers, the subscriber’s reference and the date of registration. As an Information Notice is not a definitive statement of the state of the Register, a title search will be necessary to acquire accurate title information.

All land dealings must be lodged electronically

From 11 October 2021:

  • Lodging land dealings in paper is no longer permitted. All land dealings are to be lodged with NSW Land Registry Services electronically by a subscriber to an Electronic Lodgment Network such as Sympli or PEXA.
  • The Lodgment Rules specify when out-of-scope electronic dealings can depart from the usual manner of preparing an electronic dealing.
  • Paper dealing prepared before 11 October 2021 can still be lodged with NSW Land Registry Services electronically. They are uploaded as a PDF attachment to the electronic dealing known as ‘Dealing with Exception’. Once lodged, NSW Land Registry Services will examine the paper dealing.

All By Lawyers NSW Conveyancing & Property publications have been updated to reflect these changes.

Filed Under: Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates Tagged With: By Lawyers, CAC, Cancellation of certificates of title, conveyancing, CoRD, Information Notice, PEXA, property, Purchase of Real Property, right to deal, safe custody, Sale of Real property, SYMPLI, Torrens Register, VOI

A full description – Conveyancing – NSW

1 February 2021 by By Lawyers

The popular By Lawyers resources A full description of the purchase process in NSW and A full description of the sale process in NSW have recently been reviewed.

As a result of the review a new active hyperlink has been included in the sale version, leading to the Revenue NSW land tax page. This helps practitioners easily access the current threshold for the unimproved value of the land, to determine whether a client is liable for land tax. Land tax is generally only payable on investment properties, as there is a primary residence exemption.

These two helpful resources can be found in the Reference materials folder located at the top of the Sale of Real Property (NSW) and Purchase of Real Property (NSW) matter plans.  They provide a detailed summary of the typical progression of residential sale or purchase matter. Also available in the Reference materials folder is A brief explanation of the transition to E-conveyancing and how to get connected.

These resources, especially the two A full description… summaries, can provide valuable practical assistance for anyone new to conveyancing transactions, for practitioners and support staff  who only conduct conveyancing matters occasionally, or for team members inexperienced in conveyancing who have to step in at short notice in the unexpected absence of a colleague to look after a conveyancing file which is already on foot.

This review is part of by Lawyers continuing commitment to updating and enhancing our publications. All By Lawyers content is kept up to date by our dedicated editorial team and our specialist authors.

Filed Under: Conveyancing and Property, New South Wales, Publication Updates Tagged With: A full description of the purchase process in NSW, A full description of the sale process in NSW, conveyancing, property, typical progression of residential sale and purchase matters

1 January updates – All states

7 January 2021 by By Lawyers

The By Lawyers has attended to the following 1 January updates required by legislation and practice in all relevant jurisdictions:

Land tax – Increases to threshold values – NSW

Land tax thresholds in NSW are indexed to rise on 1 January each year.

The 2021 threshold combined land value has increased to $755,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,616,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in the By Lawyers Conveyancing & Property and Trusts guides have been updated accordingly.

By Lawyers Contract for sale of land

The 2021 edition is now available on the Sale of real property matter plan in the Contract section.

Leases and subleases – NSW, VIC, QLD, SA and WA

The 2021 editions are now available on the Leases – Act for Lessor matter plan for each jurisdiction.

These additions form part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Bankruptcy

In response to the COVID-19 pandemic temporary changes were made to bankruptcy law, increasing the debt threshold to $20,000 from $5,000 and increasing the time frame for a debtor to respond to a bankruptcy notice to 6 months from 21 days.

As of 1 January 2021 these changes have ceased and a new permanent bankruptcy threshold has been implemented.

The current debt requirement for bankruptcy is a minimum debt of $10,000 and the current time to respond to a bankruptcy notice is 21 days.

The By Lawyers Insolvency – Bankruptcy of individuals publication has been updated accordingly.

Always up to date

In addition to our annual 1 January updates, By Lawyers ensures our publications are updated for 1 June and any other statutory or regulated adjustments where necessary. We also promptly  update our content for all relevant legislative amendments and other legal developments throughout the year, in all jurisdictions.

The team at By Lawyers wishes everyone a prosperous and safe 2021.

Filed Under: Bankruptcy and Liquidation, Companies, Trusts, Partnerships and Superannuation, Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates, Queensland, South Australia, Victoria, Western Australia Tagged With: By Lawyers contract, conveyancing, land tax, lease, property, sublease

1001 Conveyancing Answers – VIC

15 May 2020 by By Lawyers

The very popular By Lawyers reference manual 1001 Conveyancing Answers (VIC) has received an extensive review by our author Russell Cocks.

As part of Russell’s review, many relevant 2019 and 2020 cases have been added. These include:

  • Re Tucker [2019] VSC 210 – The younger joint tenant is presumed to have survived the older joint tenant, if time of death cannot be ascertained.
  • Re Wilson [2019] VSC 211 – Unilateral severance in equity will occur on signing of the transfer.
  • Versaci v Rechichi [2019] VSC 747 – Severance based on the conduct of the parties.
  • Maddi Developments P/L v Perpetual Trustees [2019] WASC 253 – Easement acquired by usage.
  • Phillips v Abel [2019] VCAT 1031 – Definition of retail premises – selling sand from a quarry constitutes the provision of retail goods and services.
  • Cooltime Solutions P/L v Viva Energy Aust P/L [2020] VCAT 83 – Rent review is presumed not to be a ‘time of the essence’ clause in a retail lease.
  • Paragreen v Lim Group Holdings P/L [2020] VSCA 84 – Priority – registered proprietor not bound by unregistered covenant.

1001 Conveyancing Answers (VIC) is available in all of our Victorian property law guides. This comprehensive reference work assists property lawyers and conveyancers to understand the conveyancing process and to solve problems for their clients as and when they arise. The publication includes detailed information to address issues quickly and clarify areas of uncertainty.

This cornerstone By Lawyers publication is a must have for all lawyers and conveyancers dealing with property matters and the conveyancing process in Victoria.

 

Filed Under: Conveyancing and Property, Publication Updates, Victoria Tagged With: 1001 Conveyancing Answers, Conveyancers, property, VIC Conveyancing update

Contract of Sale of Land – VIC

7 January 2020 by By Lawyers

With the LIV contract not currently available through LEAP, the By Lawyers Contract of Sale of Land is available to all LEAP users until 1 March 2020. Beyond that date it will remain available to LEAP users who have By Lawyers as a companion product to their LEAP subscription. It can also be accessed by non-LEAP users through the By Lawyers website by subscribing to our Victorian Conveyancing Guide, which has many associated benefits such as full access to 1001 Conveyancing Answers.

Adapting to the use of the Russell Cocks authored By Lawyers contract should present few problems as Russell was the principal author of the LIV contracts, including the 2008 version which effectively overhauled the previous contract and established the current format, making the terms of the By Lawyers contract familiar and making numerous improvements.

The By Lawyers Contract of Sale of Land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The By Lawyers contract removes the need for special conditions other than those covering special circumstances. It has a number of other advances over the LIV contract which further simplify the conveyancing process.

The By Lawyers legal and editorial teams ensure that the contract is immediately brought up to date with any changes in law or practice.

Recent amendments to the By Lawyers Contract of Sale of Land – Parts 1 and 2.

  • The ‘Payments’ section in Part 1 of the By Lawyers Contract of Sale of Land (VIC) has been amended for clarity regarding payment of GST;
  • A new clause has been added to Special Condition 14(f) of Part 2 which attaches a Flight v Booth type test to the purchaser’s ability to end the contract for unsatisfactory pest or building report;
  • The time for settlement has been moved from 3 pm to 4 pm to reflect current practice.

For further information see our previous post Seven reasons to use the By Lawyers contract.

Filed Under: Conveyancing and Property, Legal Alerts, Publication Updates, Victoria Tagged With: By Lawyers Contract of Sale of Land, conveyancing, LEAP, LIV contract, property

Land tax – VIC

19 December 2019 by By Lawyers

Land tax Victoria – Absentee owner surcharge

The land tax surcharge where applicable to Victorian property increases from 1.5% to 2% with effect from 1 January 2020.

The By Lawyers  Victorian Conveyancing publications, as well as the Trusts publication, have been updated accordingly.

By Lawyers wish everyone a happy holiday season.

Filed Under: Conveyancing and Property, Legal Alerts, Publication Updates, Victoria Tagged With: conveyancing, land tax, property

Land tax – NSW

19 December 2019 by By Lawyers

Land tax NSW – Increases to threshold values

Land tax thresholds are indexed to rise on 1 January each year.

The 2020 threshold combined land value will increase to $734,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,488,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in By Lawyers Conveyancing & Property Guides have been updated accordingly.

By Lawyers wish everyone a happy holiday season.

 

Filed Under: Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates Tagged With: conveyancing, land tax, property

NSW – Estates – Can a beneficiary be evicted?

1 August 2018 by By Lawyers

In the recent case of Kennedy v Kennedy [2018] NSWSC 1087 Davies J struck out a defence and granted liberty for the executors to obtain default judgement and issue a writ of possession where one of five adult beneficiaries had been residing in the deceased’s house for about two years since the date of death, despite being requested by the executors to vacate. His Honour observed that:

[7] In my opinion the defences filed by the defendant do not disclose any defence to the claim by the executors. Where there is no lease in place, except if a claim was made in the nature of some form of constructive trust, it is doubtful if there could be any defence to the right of the executors to get in all of the estate property including by obtaining possession of the land.

It is the duty of the executor or administrator to get in the estate. If necessary the executor or administrator can apply to the court for a declaration and/or a writ of possession.

This applies where a beneficiary is in occupation of real property owned by the estate without permission and refuses to vacate.

This case has been added to the Estates chapter of By Lawyers 101 Succession Answers (NSW).

Filed Under: New South Wales, Publication Updates, Wills and Estates Tagged With: assets, beneficiaries, estates, permission, possession, property, recovery, refusal to vacate

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