News

News

Choosing a Conveyancing Lawyer: Cairns

January 30th, 2017

Choosing a Conveyancing Lawyer: Cairns

If you are looking at buying or selling property, you have probably heard the term ‘conveyancing’ quite a bit. But what exactly is conveyancing? In essence, conveyancing is the process that transfers the ownership of a property from one person or entity, to another. As you would imagine, this involves the consideration of many issues, and the careful preparation of important documents. Because of the complexity of the conveyancing process, most people choose to engage a conveyancing lawyer when buying or selling property. But how do you know which conveyancing lawyer to choose? There are many conveyancing lawyers in Cairns, but not all of them will offer you the same service or value for money. Property comes in all shapes and sizes, with specific regulations governing every sale and purchase. Larger properties, or ones with commercial involvement, are often more complicated to buy or sell.

Some conveyancing lawyers only offer their services for smaller, more simple property transactions. This means you need to make sure that your conveyancing lawyer is capable of meeting your needs.

Why is a Conveyancing Lawyer so Important?

Although it is not a legal requirement, engaging a conveyancing lawyer for property transactions is strongly advisable. Buying and selling property involves dealing with many technical points of law and every sale or purchase is different. A property sale or purchase is also likely to be one of the largest transactions you will ever undertake, worth hundreds of thousands of dollars. Property agreements are often tailored to the circumstances of the transaction, and the parties involved. This means that the documents and procedures involved in the process are challenging for those without much experience. It is crucial that each stage of the conveyancing process is completed perfectly. Any mistakes or oversights can cause many problems for you in the future. In fact, you stand to lose money and potentially even property if the conveyancing process is not completed properly. Fortunately, Cairns has skilled conveyancing lawyers with expertise in a diverse range of fields. If you take the time to assess your needs and choose the right conveyancing lawyer, your sale or purchase should be smooth and stress free.

How to Find the Best Conveyancing Lawyer Cairns Has to Offer

To avoid any costly issues when buying or selling a property, you should look for a good conveyancing lawyer. However, finding the best conveyancing lawyer Cairns has to offer is not always easy. There are many lawyers and paralegals offering conveyancing services, so choosing one can be difficult. To give yourself the best chance of finding a good conveyancing lawyer, it is worth doing some research. Most conveyancing lawyers in Cairns list their fields of expertise online, which can give you a clear picture of what they offer. There are a few things to look for in particular, and some of these are listed below.

Do your conveyancing lawyers have much experience in the Cairns region?

Every property transaction is different, which means that conveyancing lawyers must be at the top of their game to keep up. Of course, it is not always easy to assess the suitability of a conveyancing lawyer, but experience is always a good gauge of proficiency. Local experience in particular is always a desirable trait in conveyancing lawyers. If your conveyancing lawyer has many years of experience in Cairns, then they are likely to be familiar with the local property market. This is valuable for two reasons in particular. Firstly, their experience in the local property market will allow them to thoroughly assess your property agreement and provide accurate and pertinent advice. Secondly, their experience with local regulations will ensure that nothing is overlooked during the conveyancing process.

Does your conveyancing lawyer have the knowledge and experience to protect you if something unusual comes up?

No two properties are identical, and nor are any two conveyances. Property transactions involve at least one seller and one buyer, and like anything involving people, sometimes the parties will be fair and reasonable, sometimes not, and sometimes things happen which are beyond the control of either party. An experienced conveyancing lawyer has the knowledge and skill to be able to deal with the variety of issues which can arise, and to guide you safely through them, with minimal stress and inconvenience. Unfortunately some conveyancing lawyers delegate much of the task to inexperienced and untrained clerks, who do not know what to do when something out of the ordinary happens, or just miss an issue completely. In some cases there is not even a qualified lawyer in the office, supervising each step of the conveyance. Different properties also require a conveyancing lawyer to consider different issues and do different work. For example, the conveyance of a commercial building is quite different to a house, which is different to a unit in a holiday resort. Do some research on prospective conveyancing lawyers and find out about their knowledge and experience. Check who the person is who will be looking after your matter, and who the lawyer in charge is.

Do your conveyancing lawyers offer good value for money?

Conveyancing lawyers often charge vastly different fees. This makes it challenging to determine who offers the best value for money. There are many factors that contribute to the value of a conveyancing lawyer. Things like experience, fields of expertise and, of course, the nature of the transaction all have an effect on the fees charged by a conveyancing lawyer. Many conveyancing lawyers offer fixed fee quotes. This means that you know what costs are involved before you engage their services. Fixed fee conveyancing eliminates the risk of unexpected costs and allows you to assess the rates of your conveyancing lawyer before the process commences, but you need to make sure that you are comparing similar services, and that corners are not being cut in order to give you a lower price. It is also important to understand what searches and other outlays will be incurred on your property transaction and whether these charges are included in the quote provided. Where not included, you should ask to be provided with details of what searches will be undertaken, their purpose and the associated cost/s. Remember that saving $100 or so on a conveyancing quote is not good value if it puts at risk your $500,000 property, or a $50,000 deposit.

Choose the Right Conveyancing Lawyer for Your Cairns Property

Purchasing a property is probably the largest investment of your life, so it is important that everything is done to perfection. Finding a conveyancing lawyer that can meet your needs is vital and you should do so early in the process. Many people make the mistake of engaging conveyancing lawyers only after they have signed a contract of sale. What they do not realise, is that by that stage they may already have made an irreversible mistake. Conveyancing lawyers can provide you with accurate and detailed advice before you sign the contract. This will help you minimise the risks associated with your transaction and ensure that you are well informed throughout each stage of the process. There is some degree of risk in all property transactions. However, with a good conveyancing lawyer these risks can be significantly reduced. By taking a few precautions and doing some research, you can protect your investment with the help of a good conveyancing lawyer.

The conveyancing team at Miller Harris Lawyers has over 25 years’ experience with a wide range of property transactions in the Cairns and North Queensland market. Contact us to find out more about the services we offer and how we can help you with your property conveyance.

More

Stepchildren – Can they contest my will?

January 18th, 2017

In today’s world where second marriages and blended families are increasingly common, it is not unusual for clients to ask whether or not their stepchildren can contest their will.

Current Queensland legislation allows for wills to be “contested” on the basis that a person has not been adequately provided for under the terms of a will.  Only certain categories of person are entitled to make a claim of this nature, including:

  1. the deceased person’s spouse;
  2. the deceased person’s children; and
  3. dependents of the deceased at the time of their death.

But what is sometimes difficult for people to accept, is that the definition of children is not limited to simply their biological children, it also includes legally adopted children and stepchildren.

So who are stepchildren?  The answer is not as simple as it may seem.

Pursuant to the Succession Act 1981 (Qld) (“the Act”) a person is a stepchild of a deceased person if:

  1. the person is the child of a spouse of the deceased person; and
  2. the relationship of stepchild and step‑parent between the person and the deceased person did not stop due to the divorce of the deceased person and the stepchild’s parent.

It is also declared, to remove any doubt, that the relationship of a stepchild and step‑parent does not stop merely because:

  1. the stepchild’s parent died before the deceased person, if the deceased person’s marriage to the parent subsisted when the parent died; or
  2. the deceased person remarried after the death of the stepchild’s parent, if the deceased person’s marriage to the parent subsisted when the parent died.

Let’s use an example to conceptualise who is a stepchild in accordance with the provisions of the Act.

Example – Jack and Jill

  • Jack and Jill have been married for 5 years.
  • Jack has two children from a previous relationship, Sally and James.
  • Jill also has two children from a previous relationship, Mark and Matthew.
  • Jack and Jill have “traditional” or “simple” wills prepared whereby they provide for each other in the first instance and their own children (but not each other’s children) in the event that the other has predeceased.
  • Jack passes away and all his estate goes to Jill (in accordance with the provisions of his will).
  • Jill remarries Simon, 3 years later. Shortly after they marry, Simon suffers an injury and is unable to work.
  • Jill then passes away some 2 years later, and under her new will everything goes to Simon, Mark and Matthew equally.

Can Jack’s children contest Jill’s will?

Jack and Jill were married at the time of Jack’s death and the relationship between Jill and Jack’s children did not stop because Jill remarried.  Therefore, Jack’s children, Sally and James, are Jill’s stepchildren and entitled to bring a claim against Jill’s estate for further provision.

As you can imagine, a claim by Sally and James could cause some anguish between family members as Simon could possibly argue that he has a greater financial need to the assets of Jill’s estate, than all of the adult children, due to his injury and incapacity to work.

Had Jack and Jill undertaken strategic estate planning, right from the beginning, the risk of these claims could have been reduced.

What about stepchildren of a de facto relationship?

Case law has illustrated that a stepchild under 18 years of age may make a claim in the estate of a de facto spouse of that person’s parent if the stepchild was dependant on the de facto spouse.

The position, however, for adult children whom are not dependant on the de facto spouse is somewhat unclear, as section 40A of the Act refers to “divorce” and “marriage” thereby assuming that the definition of stepchild refers to a stepchild of a marriage and not necessarily a stepchild of a de facto relationship.

Estate planning for blended families is extremely important and involves careful consideration of each family member, their status in life, your assets (estate and non-estate) and how your assets are held.  Whist many people may feel uncomfortable discussing their wishes for their children (from a prior relationship) with their new spouse, discussing those wishes allow for appropriate measures to be put in place.  There are many different ways to draft your estate plan to ensure that your loved ones are provided for and their inheritances are protected in the best way possible.  As the saying goes, prevention is better than cure.

If you would like to discuss your estate planning options further, please do not hesitate to contact our wills and estate planning lawyer, Bianca Stafford on 07 4036 9700.

More

Cairns Conveyancing and Property Law: Building Inspections – Importance of Contract Conditions

January 17th, 2017

When purchasing a property, particularly in Cairns, it is important to have the conveyancing contract made subject to a building and pest inspection condition to ensure that as a buyer you are protected if there is something wrong with the property.

The Queensland standard conveyancing contracts, contain a building and pest inspection condition in favour of buyers.  It is important that the relevant section of the contract, stating the date which the condition is due, is completed to ensure that the condition is enlivened.

What are building and pest conditions?

The standard condition in Queensland conveyancing contracts allows the buyer to obtain inspections of the property by qualified building and pest inspectors and, if the reports are unsatisfactory, the buyer may terminate the contract.

Specifically the building and pest condition in the standard conveyance contracts provide that the contract is subject to the buyer obtaining a report from a building inspector and a pest inspector by the inspection date and on terms satisfactory to the buyer.

If the reports are not satisfactory to the buyer they may terminate the contract.  However, the buyer must act reasonably.

The inspections will identify any potential issues with the property, but the seller is under no obligation to fix all or any issues raised by the inspections.  If there are major problems, the buyer’s only recourse under the terms of the contract is to terminate or continue with the contract.

However, the inspection reports can be a basis to negotiate with the seller about rectifying any defects or reducing the purchase price.  Any negotiated changes to the contract must be agreed in writing.  Ideally, this should take place before the inspection date, otherwise the seller may terminate the contract.

Acting reasonably

The requirement to act ‘reasonably’ means that the buyer must have good reason for terminating the contract on the grounds of the building and pest inspection condition.  For example, if there is a handle missing on one of the kitchen cupboards but there are no other issues with the property, it would not be ‘reasonable’ for the buyer to terminate the contract.  On the other hand, it may be reasonable to terminate where a major defect in the property has been identified (for example significant termite damage) or if the property has a number of minor defects that would be costly to rectify.

What is considered reasonable depends on the particular circumstances in the conveyance.  The buyer will generally not be entitled to terminate the contract under the building and pest condition simply because the buyer is not happy about some minor defect.

Buyers in Cairns should be aware that due to Cairns’ tropical climate, risk of termite attack in properties is often listed as ‘high’ on pest reports.  This alone will not enable a buyer to terminate the contract.  There would need to be an actual infestation or significant damage to form a basis for termination of the contract.

Tips for building and pest inspections

  1. Ensure that you arrange your inspections early, so there is time to negotiate if there are any problems.
  2. Speak directly with the inspector (or attend with them at the inspection) so they can give you as much information as possible about the property and can answer any questions or concerns you may have on the spot.
  3. Keep your deadlines in mind and if necessary speak to your conveyancer about requesting an extension of the inspection date to facilitate negotiations if there are problems raised in the reports.
  4. Be realistic. In most cases you will not be buying a newly completed building, so it is reasonable to expect that there will be some minor repair or maintenance matters to attend to.

If you have any further questions or would like assistance with your conveyance in Cairns or anywhere in Queensland, contact our conveyancing team today.

More