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BUNDLE

Leases, Wills, Business & Franchise

This bundle includes guides from the following three publications, as well as our Practice Management guide as an extra bonus!


Recent updates can be viewed on Obiter - our blog.  


Leases


A guide to negotiating and drafting retail, commercial and rural leases including assignment, termination, transfer and other related transactions. The commentary covers the Retail Leases Act requirements and key practical issues in leasing such as bank or personal guarantees, interruption, outgoings, repairs, renewals, registration and subleases.


Precedents include commercial and retail leases in plain English, agreements to lease, disclosure statements, licences, a library of additional clauses and notices, appropriate letters and all that is required for the quick and accurate production of leases and advice to landlords or tenants. Our comprehensive Retainer Instructions ensures nothing is missed and the client is properly advised.


Some of the most popular precedents in this publication include:



  • Advice to parties reviewing a lease

  • LEASE - Retail - Annexures A and B

  • LEASE - Commercial industrial - Annexures A and B

  • Deed of assignment of lease

  • Reply to lessor's solicitor returning executed lease

  • Notice to Owners Corporation


Wills, Powers and Advance Care Directives


This valuable and thorough publication allows the practitioner to take instructions using a comprehensive and methodical instruction sheet then prepare wills, powers of attorney, supportive attorney appointments, medical treatment powers, advance care directives and support person appointments with confidence, whether for a single client or for complex families and including where the clients have an extensive or complicated asset portfolio.


Precedents include various ways to deal with blended families, superannuation death benefits and rights to occupy.


Commentary includes discussion of the tax treatment of superannuation, the use of testamentary trusts, family provision considerations and dealing with assets in multiple jurisdictions.


Take the worry and risk out of will drafting and maximise its value to your practice by using our excellent and easy to follow publication.


Business and Franchise


The easy to follow, comprehensive procedures and checklists in this guide eliminate common issues which cause delay or dispute in relation to contracts for sale of business, such as purchaser entity, finance, premises and franchise requirements.


Precedents include our new Uniform Contract for Sale of Business which covers all aspects of the transaction from pre-exchange vendor warranties and purchaser guarantees (by shareholders where applicable) to completion, including effective releases of PPSR security interests, transfer all of business assets including copyright works, trade marks, supplier contracts, et cetera and the ASIC/Fair Trading requirements for the transfer of business name. Our contract also customises the competition restraints so they are enforceable, bind the key people and deal with e-commerce, non-solicitation of staff and customers and confidential information.


The commentary compares business structures, sets out the tax consequences of sale price apportionment, explains the tax treatment of stock, long service leave and other employee entitlements, considers the status of the premises and any franchise agreement and discusses many other important issues affecting business conveyancing.


Some of the most popular precedents in this publication include:



  • Uniform contract for sale of business

  • Letter to purchaser's solicitor submitting contract

  • Letter to vendor's solicitor with executed contract for exchange

  • Direction to pay to purchaser's solicitor

  • Order on agent

  • Notice to complete

  • Direction to pay to incoming mortgagee

  • Summary of relevant considerations

  • Letter to vendor's solicitor raising requisitions



MATTER PLAN
  • “ Victoria A full commentary on the law and practice as it currently applies to lease matters. ”
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        • “ Generally206 Lease or tenancy207 ”
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        • “ The owner of real estate may give possession of that real estate to another person, such that the other person has the right to use and enjoy the real estate to the exclusion of all of the world, including the owner. Such a right is recognised as a proprietary right and thus protected by the law. ... ”
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        • “ Whilst there may have been a difference in the past between the meaning of lease and tenancy, the terms are now effectively interchangeable. To lease premises is the same as to rent. The landlord is the same as the lessor, and the tenant is the same as the lessee. This chapter uses the word lessor ... ”
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        • “ A lease is as a proprietary right and, as such, enjoys the protection of the law. The lessee is entitled to enjoy the right until it expires and may enforce that right against all of the world. A licence however is merely a contractual right that exists between the parties to the contract. It is ... ”
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        • “ Whilst there is little doubt that a lease for one year is of a fixed duration, a lease from week to week may go on forever. However such an arrangement is still regarded as a lease for a fixed duration as it is capable of termination by either party at the end of each repeating period. An ... ”
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        • “ A lease must have a specified or definable commencing date. A lease that does not have a commencing date capable of precise definition will be void. Darling Point Securities P/L v Industrial Equity P/L (1991) NSW ConvR 55-589(2001) 76 ALJ 86 ”
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        • “ Validity The common law has traditionally required proprietary rights to be established in a formal way; indeed the fundamental requirement in relation to interests in land is that they be created by deed, which is a document formally executed by seal. An arrangement that does not satisfy this ... ”
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        • “ Equity is a concept, now applied by all our courts, that allows the court to achieve justice, notwithstanding technical legal rules. Thus the rule that would invalidate a lease of more than three years if it were not in the form of a deed was overcome by the creation of what is known as an ... ”
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        • “ As equity has shown itself prepared to enforce an agreement to lease, it is often said that an agreement to lease is as enforceable as a lease. This concept has been merged with modern legal concepts to establish the principle that, where it would be unconscionable for either party to resile from ... ”
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        • “ Whilst it is possible to register a lease of more than three years on the certificate of title, it is not normally done in Victoria because of the protection offered to a tenant in possession by the Act. s 66 and s 42(2)(e) Transfer of Land Act 1958Customer Information Bulletin Edition 83 October ... ”
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        • “ Incorrectly defining or describing the premises may give the lessee a right to damages. Foong & Leong v Great Union P/L [2001] VCAT 1540 ”
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        • “ The lessee is bound to use the premises in accordance with any specified use and a failure to do so will constitute a breach of the lease. If the lease provides that the use may be altered with the consent of the lessor, there is no implied obligation on the lessor not to withhold consent ... ”
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        • “ Written leases are traditionally prepared in duplicate so that both lessor and lessee will have a ‘copy’ for their records. The lease is the basis of the lessee’s right to possess the property and as such it is the lessee’s title. The lessor is entitled to retain the certificate of title to the ... ”
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        • “ It is normal for the lessor to arrange for preparation of the lease. As a result, it is normal for the lease to provide that the lessee will be responsible to pay the lessor’s legal cost. However these provisions are negotiable in all circumstances and in fact prohibited by statute in relation to ... ”
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        • “ Many leases provide for the lessee to pay a security deposit to be held to secure the lessee’s compliance with the terms of the lease. Special rules apply in relation to residential and retail tenancies. Generally speaking there is no presumption that the lessor is to hold the security deposit in ... ”
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        • “ Unless the proposed lessee ensures that the mortgagee of the freehold consents to the lease, the lessee will be liable to lose possession of the premises if the lessor defaults under the mortgage and the mortgagee wants to take possession. The prior-in-time interest of the mortgagee will defeat the ... ”
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        • “ Whether it is the lessor or the lessee who is responsible to pay outgoings in relation to the leased premises will depend entirely on the agreement. Leases often require the lessee to pay outgoings, such as rates and taxes, but what is included depends entirely on the words used. Insurance premiums ... ”
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        • “ The lessee is entitled to possession of the leased premises, free of interruption from the lessor or any other person. This right is known as the right to quiet enjoyment, but it is virtually the only right that the lessee enjoys. The right is created by the lessor covenanting with the lessee to ... ”
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        • “ As the lessor generally prepares the lease, it usually creates rights in favour of the lessor. These rights are generally created by requiring the lessee to enter into covenants to do, or not do, certain things and empowering the lessor to enforce those covenants. A lessee will normally covenant to ... ”
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        • “ The lease has traditionally been prepared by the lessor’s solicitor. This gave the lessor the ability to specify the terms and conditions, and it was normal practice to require a lessee to deliver up the premises at the expiration of the lease in the same condition that they were at the beginning ... ”
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        • “ Leases often require the lessee to repair and/or maintain the premises and further to deliver the premises up at the end of the term in their original condition, which implies a need to repair and maintain. Repair may involve the replacement of parts of the premises but such clauses usually stop ... ”
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        • “ Lessors have traditionally sought to pass the obligation to repair onto the lessee; but, if the lease does create an obligation on the lessor to repair, responsibility to do so will usually only arise after the lessor receives notice of the need for repair. O’Brien v Robinson [1973] UKHL 1 ”
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        • “ The lessor has traditionally been in a position of strength. Federal competition and consumer legislation has sought to equalise negotiating power and many lessees have relied upon concepts such as misleading and deceptive conduct in disputes arising out of the economic downturn of the early 1990s. ... ”
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        • “ In the absence of a review clause, rent will remain the same during the full term of the lease and, depending upon the option clause, possibly even through a further term. However, most leases do have a rent review clause which may provide for rent to be reviewed during the term of the lease and, ... ”
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        • “ Recorded information is available by phone on 1300 135 070. Information is also available at the Australian Bureau of Statistics. ”
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        • “ Errors may be rectified by the court. Thermoplastic Foam Industries P/L v Imthouse P/L (1990) ANZ ConvR 532 ”
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        • “ A lease is a proprietary interest in land. Just like any other proprietary interest it may be used as security for a loan. The lease may have a clause requiring the lessee to obtain the lessor’s consent before giving a mortgage over the lease. Failure to obtain consent in such circumstances would ... ”
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        • “ Surrender by agreement The parties may agree, or be deemed to have agreed, to terminate the lease by the lessee surrendering, and the lessor accepting. ”
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        • “ It is common for a landlord to seek a guarantee of a tenant’s obligations under a lease. The guarantor’s obligations continue notwithstanding the termination of the lease for breach. Nangus P/L v Charles Donovan P/L (In Liquidation) [1989] VicRp 17Tebb v Filsee P/L & Anor; Tebb v KKV P/L & Anor ... ”
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        • “ The consequences of a breach depend on the terms of the agreement between the parties. The lease may have detailed and specific clauses relating to breach and its consequences. Broadly speaking, a breach that is not remedied will entitle the other party to bring the lease to an end by termination. ... ”
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        • “ Forfeiture is the process whereby the lessor, relying on a breach of a fundamental term of the lease by the lessee, forfeits the lease and thereby becomes entitled to re-take possession of the premises and re-enter. It was usually aided by a clause in the lease authorising re-entry upon forfeiture. ... ”
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        • “ If the lease is terminated by the lessee for breach by the lessor, then the lessee will be entitled to damages. However such situations are rare, as the lessee would ordinarily be satisfied to be free of the lease or else have sought specific performance. If the lease is terminated by the lessor ... ”
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        • “ The lease passes to the lessee the right to possession. If the lease is terminated, the lessee’s right to possession ceases and the lessor is again entitled to possess the property. If the lessor is able to effect re-entry and take possession of the premises without creating a disturbance of the ... ”
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        • “ If a lease has been terminated and the lessee refuses to deliver up possession, the lessor may issue proceedings in the Magistrates, County or Supreme courts. Avin Operations P/L v Clover Pines P/L [2003] VSCA 58Order 53 procedure ”
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        • “ Article:Lease - Abandoned goods If a lessee vacates the premises, leaving goods on the premises, ownership of those goods remains with the lessee and the lessor has no claim to ownership of them. If the lessee requests access to the premises for the purposes of removing the goods, the lessor will ... ”
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        • “ Periodic leases roll on until terminated by notice of either party. In the absence of a contrary agreement, the notice must expire at the end of the period after the period in which it is given. ”
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        • “ A lease is fundamentally a contract and the normal rules of privity of contract apply. But a lease also relates to real estate, and property law has traditionally affected more than just the parties to the contract. Rights arising from property law may therefore result in the lease affecting more ... ”
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        • “ Sublease It is the intention of the parties that the lessee will return to ownership of the leasehold at some time prior to expiration of the lease. It is not intended that the lessee’s obligations will be diminished, merely temporarily assumed by the sublessee, so the lessee remains primarily ... ”
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        • “ Whilst there was some doubt about this and some lessors would require the guarantor to specifically confirm the extension of the guarantee, that is no longer necessary as it has been held that the guarantee is enforceable by the freehold purchaser. Lang v Asemo P/L [1989] VicRp 67Gumland Property ... ”
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        • “ Options generally require that the lessee not be in default in relation to any covenant as a condition of exercising the right to renew. This is construed strictly against the lessee. BS Stillwell and Co P/L v Budget Rent–A-Car System P/L [1990] VicRp 52Compare with: Caltex Properties Ltd v Pittard ... ”
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        • “ The lessee is entitled to a lease that is identical to the expired lease and a renewal does not present the lessor with an opportunity to review the lease. The only justified changes are those necessary to reflect the effluxion of time and any change in the parties. The lessor either retypes, ... ”
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        • “ A right of first refusal or right of pre-emption in favour of a lessee may be included in a lease. Such a right is regarded as different to an option to purchase. It is a purely contractual right, giving the lessee no additional interest in the land. ”
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        • “ There are two ways that the lessee may change. Sublease ”
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        • “ Lessor A may enter into a lease with lessee X, thus passing possession of the property to X for the duration of the lease. But A still enjoys ownership of the property, which at that stage is known as the right of reversion or reversionary interest. As property, that right may be transferred to ... ”
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        • “ A consideration of residential tenancies is outside the scope of this work. ”
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        • “ A consideration of caravan parks, which are governed by the Residential Tenancies Act, is outside the scope of this work. ”
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        • “ Generally236 Application237 ”
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        • “ Consumer protection considerations have dominated the development of the law for the last quarter of the twentieth century. One area of concern was the relationship between a landlord and a tenant of premises used for retail purposes. With the development of shopping malls, ownership of such ... ”
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        • “ The 2003 Retail Leases Act applies to leases entered into after 1 May 2003, including the renewal (either by option or agreement) of an existing lease. Limited parts of the 2003 Act apply to all leases. s 11 Retail Leases Act ”
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        • “ The Retail Leases Act applies to any premises from which goods or services are supplied to the general public. The 2003 Act requires that this be the sole or predominant use of the premises and provides that the Act does not apply to any part used for residential purposes. s 4 2003 Act as amended ... ”
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        • “ Even if the premises are used for retail purposes, the Act will not apply if: the occupancy costs (rent and outgoings) exceed $1 million per annum (s 4(2)(a) Retail Leases Act 2003 and r 6 Retail Leases Regulations 2013); or ”
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        • “ Floor area was relevant to the 1998 Act, but is not relevant to the 2003 Act. ”
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        • “ Consumer protection requires information. A consumer is more likely to make a good decision if the consumer has access to all relevant information. The 2003 Act requires a landlord to provide all persons who negotiate to enter into a lease with a copy of the proposed lease and an information ... ”
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        • “ The 2003 Act provides that an assignment is a continuation of the old lease. A lease that commenced prior to 1 May 2003 will come under the 2003 Act if renewed after 1 May 2003, but not if merely assigned after that date. The 1998 Act will continue to govern such leases. s 8 2003 ActSaratoga ... ”
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        • “ The 2003 Act requires a retail lease to be for a period of five years. The tenant may request the Small Business Commissioner to waive the section. The waiver application may be found at www.vsbc.vic.gov.au. ”
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        • “ Key-money is the demand for money by a landlord as a condition to the landlord granting a lease, agreeing to the exercise of an option, or consenting to an assignment or sublease. Key-money is prohibited by the Act. ”
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        • “ The Act provides: that the lease specify the time and method of review; and ”
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        • “ Traditionally leases drawn on behalf of landlords have included a requirement that the tenant pay the landlord’s legal costs in relation to preparation of the lease and also any matters arising during the lease, such as upon assignment or default by the tenant. However the Act prohibits the lease ... ”
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        • “ Leases often require tenants to pay outgoings, such as rates and service charges, in relation to the property. As retail tenancies are often located in shopping centres, it is also common for such leases to require the tenant to contribute to body corporate and common area expenses. The Act ... ”
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        • “ Many retail premises are located in retail shopping centres. The Act imposes penalties if the landlord fails to maintain the centre or interferes with the conduct of the tenant’s business. The tenant must be consulted in relation to changes within the centre. ss 53 – 59Fernandes v Lam P4/1999 ... ”
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        • “ The primary venue for retail tenancy disputes is VCAT (Victorian Civil and Administrative Tribunal). However the Act seeks to ensure that all disputes first go to mediation. Either party to a lease may refer a dispute to the Small Business Commissioner and a VCAT application requires a certificate ... ”
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        • “ At common law a landlord has a very limited repair obligation. See also Mega Byte Baby P/L v WJH P/L (Retail Tenancies) [2005] VCAT 1391Westgate Battery Company P/L v GCA P/L (Retail Tenancies) [2005] VCAT 1647 ”
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        • “ The Act requires any security deposit paid by the tenant to be held by the landlord on behalf of the tenant in an interest bearing account. s 24 Retail Leases ActCafé Dansk P/L v Shiel & Ors (Retail Tenancies) [2009] VCAT 36 ”
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        • “ The Act prohibits unconscionable conduct. s 76 Retail Leases ActBarbcraft P/L v Geobel P/L [2003] VCAT 1700Tenth Vandy P/L v Natwest Markets Australia P/L [2010] VSC 2Australian Competition and Consumer Commission v Dukemaster P/L (ACN 050 275 226) [2009] FCA 682Articles (2005) LIJ May 50 and ... ”
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      • “ REFERENCE SERIES ”
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      • “ Recurring outgoings, such as rates and taxes, are adjusted between the parties as at the settlement date. This right/obligation has long been a part of the standard form contract of sale of land and its present incarnation is general condition 15. Whilst requiring apportionment of outgoings ... ”
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      • “ Quality disputes in off the plan contracts often relate to the size of the finished product A summary of the provisions of the Sale of Land Act 1962 that allow for avoidance of off the plan contracts was published in the May 2015 Law Institute Journal. Those provisions only relate to a ... ”
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      • “ Contracts that relate to the sale of land prior to approval of a plan of subdivision are the subject of ss 9 and 10 of the Sale of Land Act. Whilst not specifically defined as such, Off the Plan contracts are referred to as ‘prescribed contracts’ s 9AA(7). Section 9AA ”
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      • “ Property law has been the subject of three legislative pronouncements in 2010, although the changes have tended to tinker around the periphery rather than impose radical change. Act 1 introduced the following changes: ”
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      • “ Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states. By Russell Cocks Published in 2010 ”
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      • “ It is a fundamental principle of contract law that any attempt to penalise a contracting party for breaching that contract will be unenforceable. However the law also recognises a number of exceptions to this principle, notably the entitlement of a vendor of a contract of sale to forfeit the ... ”
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      • “ The Vendor’s Statement required by the seller of real estate pursuant to s 32 of the Sale of Land Act 1962 is a fundamental document in the conveyancing process. Designed as a consumer protection mechanism, the statement requires the vendor to disclose certain items of relevant information to a ... ”
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      • “ A caveat is a document authorised by s 89 Transfer of Land Act 1958 (Vic.) as a means by which a person claiming an interest in the land of another person can record that interest on the title to land owned by that other person. The virtue of a caveat is that it serves to give notice to the world ... ”
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      • “ The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way ... ”
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      • “ The article Caveats - Forcible removal 1 considered the question of removal of caveats from the point of view of a caveator who had a legitimate caveat but was faced with a demand from a third party to provide a withdrawal to allow a dealing to proceed. This article considers removal of caveats ... ”
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      • “ The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way ... ”
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      • “ 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 ... ”
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      • “ The caveat is the Torrens system’s safety valve. The principle of indefeasibility allows an interest in land, once registered, to effectively destroy competing interests, but the caveat gives a competing interest holder a momentary chance to assert their interest. Unfortunately, caveats are not ... ”
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      • “ The Victorian Court of Appeal has introduced an element of uncertainty into conveyancing settlements that will have property lawyers anxious to adopt the (hopefully) soon to be introduced electronic settlement regime. Settlement Group P/L v Purcell Partners [2013] VSCA 370 conducts a post-mortem ... ”
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      • “ Australian property law in general, and conveyancing in particular, were dominated for two centuries by the common law principle of caveat emptor (let the buyer beware) which gave very little protection to a purchaser against misrepresentations by the vendor. The age of the consumer, which began ... ”
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      • “ Regular readers of this column will note a recent contract-centric emphasis, and this column continues that focus by considering how the standard form contract can, or should, be changed. At the risk of repeating well known law, the standard contract of sale of real estate is not a compulsory ... ”
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      • “ The much anticipated arrival of electronic conveyancing, at least in relation to settlement, is upon us, with PEXA (Property Exchange Australia) providing a platform for firms to engage electronically. The authors of the Law Institute of Victoria contract of sale of land - Murray McCutcheon, David ... ”
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      • “ 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) ... ”
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      • “ The recently reviewed Contract of Sale of Real Estate published jointly by the Law Institute of Victoria and Real Estate Institute of Victoria establishes 28 general conditions as the fundamental terms of the agreement entered into by the vendor and purchaser. As a contract designed to be used by ... ”
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      • “ Many contracts for the sale of land are subject to the purchaser obtaining approval of a loan. In most cases the purchaser will have undertaken preliminary inquiries in relation to the availability of finance and the application process will be something of a formality and result in an approval. ... ”
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      • “ Umbers v Kelson confirms a silly decision. The case concerned a finance condition in a contract for the sale of a business. The wording in that condition is effectively the same as the wording in the finance clause in the standard contract of sale and so the case has important ramifications for ... ”
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      • “ The Supreme Court has made another decision that, from the point of view of purchasers at least, might be described as ‘tough’. Certainly vendors might view the result favourably, but it is suggested that, on balance, the decision places too high a duty on purchasers before the purchaser is ... ”
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      • “ Prior to the introduction of the 2008 copyright Contract of Sale of Real Estate it was common for a vendor to include a standard form guarantee in a proposed contract and to require directors of a corporate purchaser to personally guarantee the performance of the contract by signing that guarantee ... ”
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      • “ Determining whether negotiations between a vendor and a prospective purchaser have reached the stage where it can be said that a legally binding contract of sale of land has come into existence is a question that often occupies the attention of courts. The legal principles to be applied are rarely ... ”
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      • “ A sub-committee (consisting of Richard Park, Murray McCutcheon, Russell Cocks and David Lloyd)of the Property Committee of the Law Institute has been working on a new form of contract of sale of land that is expected to become available for general use from 30 September 2007. The use of a ... ”
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      • “ The contract of sale of land in common use is not strictly a compulsory document. It is prescribed pursuant to the Estate Agents (Contracts) Regulations 2008, but those regulations only bind estate agents. This means that if an estate agent prepares a contract the prescribed form must be used, but ... ”
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      • “ The prescribed Contract of Sale of Real Estate has now been in use for 12 months. The contract was prescribed pursuant to theEstate Agents (Contracts) Regulations 2008, which came into effect on 28 September 2008. These regulations bind estate agents but not other participants in the conveyancing ... ”
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      • “ The 2008 Contract of Sale of Real Estate was amended in 2012, principally in response to the Personal Property Securities Act 2009(Cth) (the Act). As an indication of the complexity of the Act, it has been decided to make further amendments to the standard contract that again largely address the ... ”
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      • “ It is relatively common for a purchaser of land to want to nominate an additional or substitute purchaser to complete the purchase. Most commonly this arises in a family situation where one spouse or family member has signed the contract and desires to add another spouse or family member or in a ... ”
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      • “ A contract of sale of land essentially involves two parties – the vendor and the purchaser. The common law undoubtedly recognises the right of the named purchaser to nominate an alternative purchaser. Additionally, most standard form contracts (including General Condition 18 of the 2008 prescribed ... ”
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      • “ The law relating to terms contracts has been governed, principally, by the Sale of Land Act 1962 for half a century. Essentially, the Act seeks to protect consumers from unfair contracts and is an early example of consumer protection. Traditionally, a terms contract was created if the purchaser ... ”
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      • “ Terms contracts are relatively rare, but still common enough to create difficulties. In short, they may arise in one of two ways: by payment, where the contract price is spread over a number of payments, in contradistinction to a cash contract that has just two payments, being a deposit at the ... ”
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      • “ Last month I discussed the recent changes to the Sale of Land Act 1962 in relation to terms contracts. I made the point that those changes appear to mean that it is no longer possible to create a terms contract by multiple payments, although it remained possible to create a terms contract by the ... ”
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      • “ 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 ... ”
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      • “ 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 ... ”
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      • “ This column is concerned with two cases on entirely different topics, but connected by a similarity in the name of the principal parties and the fact that they are recent decisions in the Real Property List of VCAT, a jurisdiction that is growing in importance for property lawyers. Pavlovic v ... ”
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      • “ 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 ... ”
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      • “ Property lawyers of a certain vintage have been much influenced by two ‘parks’ and may, from time to time and no doubt due to their vintage, get those parks confused. The first in time and perhaps in memory is Ellenborough Park, a park in London that is the subject of the case cited as Re ... ”
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      • “ Regulation is the life-blood of lawyers, but it is also the bane of their life and that is particularly so when it impacts on common or garden transactions such as conveyancing and leasing. A recent example is the introduction of further Regulations relating to essential safety measures. ... ”
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      • “ The issue of which party, landlord or tenant is responsible for the cost of essential safety measures and associated annual reports in relation to leased commercial premises is causing controversy. Essential safety measures include such services as: ”
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      • “ 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 ... ”
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      • “ Conveyancing has traditionally been haunted by three systemic inefficiencies: 1. requisitions and the answers thereto; ”
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      • “ A Supreme Court ruling makes claiming a return of deposits difficult The Supreme Court has made another decision that, from the point of view of purchasers at least, might be described as tough. Certainly vendors might view the result favourably, but it is suggested that, on balance, the decision ... ”
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      • “ 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 ... ”
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      • “ 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. The common law has a rule against penalties. This rule prohibits the ... ”
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      • “ Disputes often arise in conveyancing transactions as the matter approaches settlement and the purchaser is dissatisfied with the condition of the property. These disputes typically arise after the purchaser has conducted the final inspection allowed by Condition 15 and discovered that the property ... ”
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      • “ One of the innovations introduced by the 2008 standard contract of sale was a procedure designed to deal with the problem of deterioration of the property between the day of sale and the proposed settlement date. ”
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      • “ 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 ... ”
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      • “ This column is concerned with two cases on entirely different topics, but connected by a similarity in the name of the principal parties and the fact that they are recent decisions in the Real Property List of VCAT, a jurisdiction that is growing in importance for property lawyers. Pavlovic v ... ”
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      • “ The much anticipated arrival of electronic conveyancing, at least in relation to settlement, is upon us, with PEXA (Property Exchange Australia) providing a platform for firms to engage electronically. The authors of the Law Institute of Victoria (LIV) contract of sale of land - Murray McCutcheon, ... ”
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      • “ Estate agents have always been given a degree of ‘poetic licence’ when it comes to describing the property that they are retained to sell on behalf of a vendor. To describe a property as ‘immaculate’ Walker & Anor v Masillamani & Anor [2007] VSC 172 - or as having ‘perfect presentation’ (Mitchell ... ”
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      • “ Victorian estate agents might be contemplating adopting this famous Dire Straits song as their new anthem after the recent Court of Appeal decision of Icon Property P/L v Wood [2008] VSCA 123, a decision handed down on 26 June 2008. Wood engaged Icon to sell an apartment. A purchaser signed a ... ”
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      • “ GST needs to be at the forefront of every property lawyers mind when dealing with the sale (supply) of real estate. If the transaction relates to ‘residential premises’ then GST does not apply, but it does apply if those ‘residential premises’ are ‘new residential premises’ or are not ‘premises’ ... ”
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      • “ Last month I wrote about owner-builders and suggested that the only issue that causes property lawyers greater concern is GST. Perfectly on cue, 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 ... ”
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      • “ Prior to the introduction of the 2008 copyright Contract of Sale of Real Estate it was common for a vendor to include a standard form guarantee in a proposed contract and to require directors of a corporate purchaser to personally guarantee the performance of the contract by signing that guarantee ... ”
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      • “ Property lawyers do not often hold ‘privileged’ information. All information that comes to a lawyer about a client is confidential and is protected from disclosure by the duty to the client of confidentiality. The concept of legal professional privilege or, as it has come to be known recently, ... ”
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      • “ Land tax is imposed by the state government as a source of revenue. In this respect it is similar to stamp duty or taxes on gambling, and it is undoubtedly an important revenue stream for government. Essentially it is a wealth tax designed to raise revenue from taxpayers who own valuable, ... ”
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      • “ Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states. By Russell Cocks Published in 2011 ”
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      • “ Solicitors have to deal with abandoned goods left on premises in three common situations: in a sale, where the vendor is obliged to give vacant possession; ”
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      • “ Distress is an ancient common law right entitling a landlord, initially, to seize and retain a tenant’s goods if the tenant failed to pay rent. Eventually the right was extended to permit the landlord to sell those goods if the tenant continued to fail to pay the rent. It would be hard to imagine, ... ”
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      • “ The recent case of Xiao v Perpetual Trustee Company Limited and Macquarie Office Management Limited [2008] VSC 412 is a typical ‘David versus Goliath’ scenario, with the outcome complying with biblical expectations. Xiao (the tenant) operated a café/restaurant in the ground floor of a substantial ... ”
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      • “ Section 4(1)(a) of the Retail Leases Act 2003 provides that the Act applies to premises: wholly or predominantly for – ”
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      • “ A lease of land is essentially a contractual relationship between the landlord and tenant. The lease also creates a proprietary interest in the land in favour of the tenant and the tension between contractual and proprietary rights has been reflected in the law relating to termination of the lease ... ”
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      • “ Whilst there is considerable consistency between the property laws of Victoria and New South Wales, there are also significant differences. Some differences in practice are: ”
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      • “ The December 2007 column considered which party to a contract of sale of land, the vendor or the purchaser, is liable for a levy struck prior to the date of the contract in relation to the property sold. This column considers the liability of the parties in respect of a levy or notice ... ”
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      • “ No topic (apart perhaps from GST) causes conveyancing lawyers as much angst as Owner-Builders. The requirement that a vendor who sells a home within ‘the prescribed period’ provide warranty insurance to the purchaser sounds simple enough, but the reality is that solicitors for the vendor regularly ... ”
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      • “ The law has a number of special requirements when a property that is affected by an owners corporation is going to be sold. These requirements can mean that the preparation of the obligatory Vendor’s Disclosure Statement is delayed until an Owners Corporation Certificate is obtained from the ... ”
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      • “ New rules are being considered that will change the present r 27.2 offence of giving a conditional undertaking to an offence of asking for a conditional undertaking. Legal practitioners are under stringent obligations to comply with undertakings that they may give. Specifically rule ... ”
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      • “ Conveyancing is concerned with the transfer of land and improvements from one owner to another. The doctrine of fixtures means that the improvements on the land are considered by the law to be part of the land and therefore a contract for the sale of real estate simpliciter does not involve the ... ”
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      • “ A recent Magistrates' Court case SDC (Vic) Pty Ltd v. Davies and others [2010] VMC 3 has considered an issue relating to the consequences of rescission of a contract of sale of land. Whilst such decisions are not binding on other courts, the fact that they are now reported on AustLII means that ... ”
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      • “ A caveator’s arguments in support of the contract upon which his caveat was based were not well received by the court in the recent case of Damco Nominees P/L v Moxham [2012] VSC 79, with the result that the contract was found to have been terminated. Consequently the caveatable interest based on ... ”
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      • “ 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 ... ”
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      • “ Victorian Civil and Administrative Tribunal (VCAT) has published an advisory opinion on the interaction between the obligations created in respect of essential safety measures by the Building Regulations 2006 and the landlord’s repair obligations pursuant to s 52 Retail Leases Act 2003. Whilst ... ”
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      • “ 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 wreak havoc on the ‘innocent’ villager. As a recent case ... ”
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      • “ In September 2011 I wrote a column in relation to sheriff sales based on the case of Kousal v Suncorp-Metway Limited [2011] VSC 312. The case exposed the sheriff sales process as flawed and likely to lead to injustice but at that time Mukhtar AsJ. lamented that “the Court can do no more”. In fact ... ”
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      • “ Legal practitioners are licensed to provide legal advice. Estate agents are licensed to sell real estate. Both professions operate, in part, in the real estate industry and at times the distinction between their respective roles may become blurred. Indeed, the 1990s saw a push in Victoria for ... ”
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      • “ Lawyers are not financial advisers but, when acting for a client in a commercial transaction, lawyers will be liable for the advice that they give, or fail to give, in relation to the commercial consequences of the client’s decisions. Two recent Victorian cases have considered the extent of these ... ”
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      • “ Lawyers face difficulties as regards charging costs and/or commission when acting as a lawyer to, and executor of, a deceased estate. Traditionally lawyers practising in all but large city firms would dabble in property law and wills and estates. ”
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      • “ Most property lawyers will also be involved in the administration of deceased estates and, on occasions, may in fact act as the executor of a deceased estate. This is entirely appropriate, as there will always be clients who do not have a close friend or relative who they can appoint to fulfil ... ”
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      • “ Since the Stamps Act morphed into the Duties Act, it is not even correct to refer to the tax imposed on a transfer of land of land as ‘stamp duty’, however old habits die hard and it may take a generation or two to eradicate this habit. There is no particular justification for the government ... ”
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      • “ The case of Clifford v Solid Investments Aust P/L (Solid) has thrown a scare into Victorian developers. Off the plan sales are an important tool for a land or apartment developers. Such sales allow a developer to undertake a development sure in the knowledge that buyers are waiting to complete ... ”
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      • “ The sale of land ‘off the plan’ is a common occurrence in the property market. Its principal virtue is that it provides certainty to both vendor (as to the sale) and purchaser (as to the eventual purchase) of the subject property. Whilst there may be some delay in relation to the eventual ... ”
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      • “ The April 2011 column considered the case of Joseph Street Pty Ltd v Tan, a decision at first instance reported at [2010] VSC 586. The case has now been reversed on appeal, reported at [2012] VSCA 113. ”
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      • “ Many properties are sold ‘off the plan’.  This is the phrase used to describe a property that is a lot on a proposed plan of subdivision, meaning that the plan of subdivision creating the lot has been drawn but it is not yet registered at the Land Titles Office. Historically, it was not ... ”
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      • “ The Owners Corporations Act 2006 took effect on 1 January 2008. In some respects it is a radical change; in others it is just like a holiday – more of the same in a different place. Owners corporations (OCs) are creatures of subdivision. Land may be subdivided into separate parcels and share ... ”
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      • “ An owners corporation is a legal entity established by statute to represent the owners of property.  It is a body corporate and it may come into existence (is incorporated) cert as a consequence of the registration of a plan of subdivision pursuant to the Subdivision Act. Owners corporation can ... ”
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      • “ Owners corporations often face an inherent conflict of interests when determining responsibility for repairs and maintenance undertaken by the OC. Part 3 of the Owners Corporations Act (Vic.) 2006 (the Act) is headed ‘Financial management’. Division 5 of that part has specific provisions relating ... ”
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      • “ Whilst it is relatively simple to state legal principles, the application of those principles always depends upon the specific facts of the case. That is why it is not possible for a lawyer to advise a client what the outcome of any particular dispute will be. The best that we can do is weigh up ... ”
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      • “ Property law is an inherently conservative branch of the law. The contest between strict legal principles and the application of equity seems to have occupied an inordinate portion of the last two centuries, with the common law principle of caveat emptor still being the starting point of any ... ”
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      • “ A conveyancer’s perspective An excellent summary of the operation of the Aboriginal Heritage Act 2006 (Vic) appears in the June 2008 Law Institute Journal at page 52. This column considers the operation of the Act from the point of view of conveyancing and seeks to identify how the Act might ... ”
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      • “ The Vendors Statement required by the seller of real estate pursuant to s 32 of the Sale of Land Act is a fundamental document in the conveyancing process. Designed as a consumer protection mechanism, the statement requires the vendor to disclose certain items of relevant information to a ... ”
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      • “ The GAIC has been a political football. The government sought to establish a fund to provide for infrastructure in developing areas, not such an exceptional idea, however some bright spark hit on the idea of collecting the tax upon transfer from the ‘existing’ owner to the ‘developer’.  This would ... ”
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      • “ Section 32 Sale of Land Act 1962 requires a vendor of land to provide a proposed purchaser with certain information about the land prior to the signing of a contract as a means of consumer protection and an equalization of the bargaining position between the parties. However s 32 does not ... ”
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      • “ During 2012 the Department of Justice undertook a review of vendor disclosure obligations, specifically with a view to reducing red tape. The Sale of Land Amendment Bill 2014 amends s 32 of the Sale of Land Act and will come into effect on 1 October 2014 if not proclaimed before. Perhaps the most ... ”
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      • “ Death can impact on a conveyancing transaction in a number of ways, whether the death occurs prior to commencement or during the course of the transaction. Survivorship ”
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    • “ Guidelines to the Retail Leases Act 2003 – What are "retail premises"? Victorian Small Business Commission ”
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    • “ 1001 Conveyancing Answers (VIC) Papers, articles and case law ”
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