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Home | Q & A on 2GB discussing Property Law 07/11/13

Property and conveyancing discussion on 2GB

Thursday, 7 November 2013

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CS       And a great little segment especially when we talk property and conveyancing which is very timely at the moment, the market is red hot! so if your in the middle of the conveyancing process or considering who to choose or maybe there are some property questions you’d like to have answered, free of charge, legal advice free, unheard of in this world but not unheard of on the afternoon programme, jump on the open line right now, Paul Sant from Turner Freeman who are our sponsors and our experts on the programme he will be taking your calls, so jump on right now, he won’t be around forever, 131873 is the telephone number, 131873, Paul good afternoon.

PS       Good afternoon Chris

CS       Got you on the phone this afternoon, you are a busy man!

PS       I am at the moment.

CS       Yeah, this is hot climate.  How risky is it when people buy property site unseen.  We’ve had a few stories this week of people discovering property in Sydney at the, below the $1 million mark and simply bidding without even seeing inside the property.  How dangerous is that?

PS       Extremely, I mean to buy something and spending that type of money without seeing it, I mean it’s just ridiculous.  Look in a tight market, where we clearly have demand exceeding supply, this is a good opportunity, if someone has got lets call it a dodgy property or a property with problems, this is a great time to off load it, because the demand is there, I think you’re just asking for that type of trouble.  One could argue if your buying land, oh well what’s the problem, but even with land, I mean you could look at the figures, you can say of this is an area, I’m paying X dollars, this is the current rate out there, but then you go and look at the land and there’s a huge big hole in the middle of it, or its full of trees.

CS       Termites

PS       Oh yeah, that’s a big thing with buying houses, that’s just crazy.

CS       So alright, if I turn up to an auction and I fall in love with something in the space of 10 minutes and I throw in a bid and I end up winning that bid

PS       Yep

CS       What are my contractual obligations, can I

PS       On the fall of the hammer you are obliged to sign that contract, the property is yours and you hand over a cheque for the 10%

CS       10% of the total amount, I’m done as soon as he goes, bang you’ve got the property.

PS       If the property is on the market, it’s been announced, you’re the highest bidder, at the fall of the hammer, and it’s yours.

CS       Ok, George has got a question for you, it combines probate and property, go ahead George.

C1       Oh good day, when a person dies, his own property involved, how long does it take for Probate to be finalised.

PS       It varies, there has to be certain documentation to be prepared and submitted to the Court.  You have to include all the property, not just the real estate, its all property that say its in New South Wales, prudent lawyers will get confirmation of those figures, we will write to the banks, write to the investment companies, check their shares, get a market appraisal of the property.  I would say usually between 3 to 6 months.

C1       Sooner then I’ve been told previously.  Thanks a lot.

PS       That’s alright, but each case is different.  If you’ve got complicated share holdings or the terms of the Will provide for the property not to be sold for a certain time, that all effects the final distribution.

CS       Just on conveyancing, back to conveyancing again, and we all like to save a quid, how dangerous is it though to go for the cheapest conveyancer? And I say that from some personal knowledge, I remember a property I bought years ago in Queensland which I don’t hold any more and I went for the cheapest I could find and gee they were lacking when it comes to attention to detail.

PS       Well my friend, let me quote to you the words of a judge, Judge Hanley in a conveyancing case.  He said “conveyancers can’t be expected either by their clients or by the Courts to provide a champagne service for what amounts to a beer price” and that’s the reality of it.

CS       You pay for what you get.

PS       Definitely, people say, let’s be blunt, let’s compare solicitors and conveyancers.  You think we are under the same obligations.  We’re not, totally not.  As practitioners we’re obliged to manage that client’s affairs and we’ve got a positive obligation, so that means if there is something in the contract that I think is relevant, I’ve got to tell the client whether he is interested or not.

CS       Yeah

PS        A conveyancer may not have that same obligation.  And in fact Courts, well it’s indicated in some of the Court cases that we’ve looked at, is that there is a lesser onus on conveyancers to

CS       I remember having 2 bills that were sent to me 18 months after I settled on a property from the conveyancer who said, uh oops!

PS       I forgot this and I forgot that

CS       Sorry about and they have also put interest on what you owed, oops!  And I went terrific, at least we got the cheapest commission.

PS       Look, I keep saying to people, look at the bottom line, and look at the total figure.  Don’t get carried away with one figure that includes everything.  Compare apples with apples.  Does it include all the enquiries, I mean a lot of people are taking short cuts out there.

CS       Exactly, alright Paul stay there I’ve got to go to a break, we’ll come back and take all our callers straight after that, Paul Sant from Turner Freeman in our legal matters segment.

C2       G’day Paul

PS       Hey Sean

C2       I was just wondering, I want to buy a property off my father, and I want to buy it for less than its worth, I just wondering what dramas I need to

PS       Two issues, no. 1 stamp duty, just because your father decides to sell your property for lets say $200,000.00 because you are related, the stamp duty’s office will say, provide me with a valuation.  Valuation comes in at $600,000.00 you pay stamp duty on $600,000.00.  Alright so don’t think you are going to save stamp duty by paying a lesser price.  Now the next question, probably the next difficult part is on the finance side of it.  If you’re buying a property for $200,000.00 and you want to borrow $200,000.00 you are going to have a problem.  You are buying a property for $600,000.00 and your borrowing $200,000.00 it might not be that much of a problem.  I know the banks will do there own valuations, but the valuers are often guided or assisted by what your prices disclose on the contract.

C2       Ok, I thought it would sort of work, like in lieu of deposit, if I was buying a property and borrowing less than what it’s worth, I thought the banks would look on that favourably

PS       Look, yes the banks will just look at the value of the property.  But I’ve just had, with experience, have seen were you are doing something like that you’ve really got to make it clear to the bank what it is all about.

CS       Yeah exactly, good on you Sean, thank you for your question, Steven go ahead

C3       Yeah hi Paul hi Chris

CS       G’day

PS       Hi Steve

C3       I wanted to ask a question about purchasing a house from a mortgagee in possession.

PS       Yep

C3       And in this case, normally you’d get I suppose clear title, but in this case there is some sort of financial caveat that has been put on the title and the mortgagee in possession will not remove that.

PS       You’ve got to be careful what you are talking about.  If for example, it talks about, it comes to priority.  Let’s say there is a mortgage registered on title and after that there may be a caveat, right someone else is claiming an interest in the land.  Under a mortgagee, if the sale is by the mortgagee in possession, that caveat will automatically be removed when lodging the transfer pursuant by a mortgagee in possession.  That works for caveats it doesn’t work for writs.

C3       Ok it is the caveat, so I was wondering

PS       No the rules of the land titles, LPI rules or the Conveyancing Act rules sorry, there is a whole section there that will say what impediments are removed upon tendering the transfer from a mortgagee in possession.

CS       Ok let’s move on from Steven, we’ve got Rick from Lithgow, you’ve got a rental question.

C4       Yes a rental question, yeah mate we rented a premises and we’re still there

PS       Sorry what was that you’re renting?

C4       Yeah we’re renting.  We rented the premises; we’ve been there for about 8 months.  The real estate agent insisted that we have direct debit, which they own it, they maintain it and it goes through whichever bank they choose and it’s been running clearness for 8 months.  Now I’ve got a Government job and like look work every night at 6.00 pm your money goes in on pay day and you pay your rent on the due date.  What’s been happening is their bank has been asking for the money say at 11 in the morning or 3 in the afternoon and its been bouncing back saying, nah insufficient funds available and I keep getting letters going, the rent money is not available on that day and I’m saying well from 6pm until midnight its still the same day and they keep saying well it’s not our problem and you do it again and well boot ya!

PS       I think they’ll have fun trying to do that in front of the tribunal.  I don’t think.  Look the smart thing to do would be to change the debit date to a day or two after your pay goes in.

C4       Absolutely correct, but they don’t want to do that and I can’t tell why that would be the deal.  At the end of the day it’s their rental system

PS       Put it in writing.

C4       Ok, well I guess that’s what I’ll have to do

CS       And then keep it, exactly good onya Rick thank you, Jack go ahead

C5       G’day guys how are you.

CS       Very well

C5       Good, my parents just sold a house in Seven Hills and bought one in Blacktown, now the house is only 5 years old, 5/6 years old so it’s still on the builders’ warranty.  Now we had a problem with the shower leak and we found out that the certifier went bust and the builder went bust and no OC was given to the house.

PS       So no occupation certificate was given to the house?

C5       Yeah

PS       Can you still make a claim, have you got the home owners, was there is there a home owners warranty insurance?

C5       Well for it to be released the CC to be given, the construction certificate, home owners warranty had to be in place and we don’t know where to chase it.  The builder’s gone bust and we can’t get a hold of the certifier.

PS       Um, contact the council, probably they would have a record.

CS       That’s a good start off

PS       As to who would have been the certifier

CS       That’s a good point

PS       And you go from there

CS       Go to the council and see where you get to and usually someone in the council can point you in the direction

PS       You may

CS       Where else it might be found

PS       need the file to be brought up from archive and pay to have a look through it all, get someone to look through it.

CS       Alright, I’ve run out of time Paul but thank you so much for being with us today and thank you for the advice.

PS       Thank you

CS       Paul Sant from Turner Freeman, our experts and sponsors of the legal matters segment.

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