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Hang Xue Solicitor

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24.01.2022 If you are selling property, the agent may usually suggest two ways to secure a buyer. The first is for an unconditional exchange contracts after the buyer has completed their due diligence and finance preparations. In this method, the purchaser’s solicitor must give a certificate and the purchaser cannot back out of the deal after exchange without being liable for loss of the 10% deposit and damages. The second is for a cooling off exchange where the buyer enters into the c...ontract with a cooling off period to conduct their due diligence and finance preparations. During the cooling off period, the purchaser is entitled to rescind the deal at the risk of losing 0.25% of the price. There are advantages and disadvantages of each method and it is best to discuss your preferred method with your lawyer and agent. The first method is more commonly used to take properties off the market before an imminent auction as it matches the unconditional exchange that would occur at an auction. Some agents have adopted the practice of accepting a deposit but leaving the exchange process to the lawyers as they may not be comfortable arranging the exchange of contracts. If a buyer backs out before the contracts are negotiated and exchanged, it is arguable that the entirety of the deposit should be returned to the buyer, unless the buyer has entered into some additional agreement in regards to that deposit.

24.01.2022 If you are a first home buyer you may be eligible for a $10,000 grant (FHOG) under the First Home Owner’s Grant (New Homes) scheme. Some of the additional eligibility criteria include that the property under $600,000, newly built and you must live in the property for 6 months within 12 months of settlement. Usually, your lender will apply for FHOG and add the funds to your loan. Alternatively, you can apply yourself with or without legal assistance after settlement. In either... case, you will need a letter from the vendor confirming the property is new for FHOG purposes and it is important this letter be obtained from the vendor in a timely manner on or before settlement. If you are applying for the grant yourself after settlement, you will usually need to obtain a title search showing the property has passed into your ownership. I can also assist with obtaining this title search for you. If you are considering applying for FHOG, please do not hesitate to obtain further advice.

24.01.2022 Unfortunately, there won't be a post this morning as I am dealing with a family loss. Publications will resume next week.

24.01.2022 If you have separated from your partner and need assistance separating your financial affairs, you should consult with a lawyer that practises in family law. The lawyer can take instructions about the circumstances of your relationship and advise you of the likely outcome if the matter was taken to court. The advice can be used to hopefully reach a negotiated outcome regarding the division of assets held in each of your names and jointly, which can then be formalised in the f...orm of a binding financial agreement or consent orders made by the court. Formally documented divisions have the advantage that except in very limited circumstances, the parties cannot change later their minds about the agreed division. Sometimes, separated partners have already decided on a division of their assets before seeking legal advice. In such a case, the lawyer is still obliged to undertake the exercise of assessing the proposed division against one that may be made if the matter was taken to court, so as to advise the client the comparative advantages and/or disadvantages of the agreed division. This exercise binds the parties to the agreed division signed for in either a binding financial agreement or consent orders. If you require advice on separation, please do not hesitate to contact me.

23.01.2022 Did you know that if your agreement to purchase property is cancelled, you can apply for a refund of any stamp duty already paid? This is most relevant in off-the-plan purchases where the stamp duty may be paid years before settlement and various reasons can cause the deal to be cancelled, such as the vendor constructing a property that is substantially worse than was promised or the purchase being unable to obtain finance at the time of settlement. The application for refund... must now be done through Revenue NSW’s e-Duties system, an electronic version of the previous paper process where the documents and evidence needed to be physically sent in for assessment. The current turnaround for most e-Duties assessments is 28 business days. I am registered to process applications through e-Duties, including stamp duty refunds. I can ensure you have all the required and correct form of supporting evidence before lodgement through e-Duties, so your application is processed and your refund hits your bank account as soon as possible.

22.01.2022 When you borrow money from a lender to help purchase a property, a number of things are happening. Firstly you are entering into a loan agreement with the lender which sets out the conditions of the loan such as the principal, repayments and interest. The loan agreement would normally include the right for the lender to register a mortgage against the property you are buying. The property acts as a security for the lender’s loan. If you breach the loan conditions, the lender ...can sell off the property to recover their loan plus costs. The mortgage document that the lender registers against the title of the property notifies that the property is subject to the rights of the lender/mortgagee. Finally, most loan agreements and mortgages will incorporate general terms set out in mortgage memorandums registered by the lender with the land registry. Most lenders will provide you with a copy of the memorandum when they issue the loan documents as they contain additional obligations not set out in the loan agreement. Some of these obligations may include keeping insurance current on the property, paying rates up to date on the property and if you are a company owner, to not change the shareholding of the company. If you are buying property, it is important that your solicitor is familiar with the lending process to ensure there are no hiccups to settlement.

20.01.2022 A statutory declaration is a common document that may be required by a number of authorities and institutions for many different purposes. In this document, the declarant verifies the truth of the contents of the documents under the relevant law being usually the Oaths Act 1900 (NSW) or the Statutory Declarations Act 1959 (Cth). There are some differences between the two acts, in particular the authorised witnesses before whom a statutory declaration can be made. The federal ...act allows a declaration to can be made before a number of different occupations (eg, a registered pharmacist) in addition to the justice of the peace (JP), public notary or lawyer usually allowed under the NSW act. While the two acts for the majority of declarations, there are other forms of declarations under other laws with similar false declaration punishments such as the Taxation Administration Act 1996 for tax purposes. It is important for the declarant to understand that effect of the declaration they are making and their liability for criminal (not just civil) punishment for making a false declaration. A JP is not entitled to charge for their services and for this reason, their existing appointments may conflict with the time frame you may need the declaration. If you need a declaration or affidavit made, please do not hesitate to contact me.

20.01.2022 Recently I have dealt with several requests to advise on and vary trust deeds for different reasons. Some requests may simply be to change the trustee, whilst others have been to ensure the trust is not deemed foreign due to the structure of the trustee(s). Variation of a trust requires an examination of the variation procedures set out in the trust, drafting and executing documentation evidencing the variation that is compliant with the variation procedures set out in the tr...ust. If a trustee is changed, it will also be necessary to change the title ownership of any properties held in the trust. This involves a complicated stamp duties assessment which I can assist with but may also require the refinancing of any loans secured against the property. It will also involve the registration of a transfer into the new trustee’s name through the electronic conveyancing process. If you need to change your trust deed in any way or wish to draft a trust, please do not hesitate to contact me.

19.01.2022 Contracts to purchase property have a settlement or completion date when the balance of the purchase price must be paid in exchange for transfer of title. If a purchaser is not ready by the settlement date because their finance is not ready or for some other reason, the vendor is normally entitled to compensation for the delay. Most contracts will provide for daily interest at 6-10% per annum on the unpaid purchase price as well as a fixed settlement cancellation fee. The... interest compensates the vendor for the delay while the fixed settlement cancellation usually represents the additional legal fees charged to the vendor for the delay. On delay, the vendor can also issue a notice to complete which requires the settlement to occur within 14 days. If settlement does not occur by the extended 14 day period, the vendor is entitled to terminate the contract for essential breach and retain the deposit. The vendor will also be entitled to be compensated for their legal fees on issue of the notice to complete. Due to the number of consequences for delayed settlement, it is important as a purchaser to ensure you and your finance will be ready by the settlement date.

17.01.2022 If you are selling your property, one of the most important things that need to be done after the contracts have been signed is to advise your mortgagee on title that you wish to discharge the existing mortgage on settlement of the property. This is because most mortgagees require 2-3 weeks’ notice to prepare for the discharge of mortgage on settlement. They take this time to finalise the home loan account, calculate the final payout figure and prepare the discharge documents... to be registered with Land Registry Services. Different banks will have different methods of notifying the discharge, with some banks having a paper form that is signed and returned whilst others may have more web-based forms (although usually still requiring printing, signing and return by email). If you miss out on this timing, the settlement may have to be delayed if the discharging mortgagee is not ready for settlement. Generally, there is no penalty for the vendor for the discharging mortgagee’s delay except where the delay extends over 2 weeks when the purchaser may be entitled to terminate the deal entirely. There is usually limited scope to escalate the discharge process as the banks processing times are clearly indicated. If you are selling property, it is important your solicitor can advise you of the practical matters in dealing with your discharging mortgagee to ensure settlement occurs without delay.

16.01.2022 The state government recently proposed changes to revenue legislation to stimulate the construction industry in response to Covid-19. The proposed bill is still before parliament for debate and may be subject to change. Under the proposed bill, first home buyers of new homes will receive a full exemption on stamp duty up to $800,000 and concessions up to $1,000,000 for agreements entered between 1 August 2020 and 31 July 2021. Existing dwellings up to $650,000 will receive an... exemption with concessions for existing dwellings up to $800,000 (this is the same as before). Vacant land will receive exemptions up to $400,000 and concessions up to $500,000 (up from $350,000 and $450,000 respectively). The proposed bill also introduces a 50% discount on the value of certain build-to-rent properties for the purpose of land tax calculations until 2040. The exact eligibility will need to be further clarified by guidelines from the treasurer. If you require further advice about whether you will be eligible under these schemes, please do not hesitate to contact me.

16.01.2022 Discretionary trusts are relationships that provide tax minimisation and liability benefits. The trust receives income/assets and distributes them to the beneficiaries of the trust at the discretion of the trustee. They are often suggested by accountants to allow you to assign income to family members/relatives who are not using up their tax free threshold. They are also sometimes used as a means to control access to funds (and by extension, limiting liability) for vulnerable... beneficiaries, whether by means of disability, creditors or potential family law issues. However, setting up a discretionary trust solely to defeat family law or creditor claims are unlikely to be successful. Usually your accountant will have a standard form of the trust that they may have their usual solicitors prepare. I am able to review these or if you prefer, ask your accountant to use the form of trust that I prepare. If you think a discretionary trust may be appropriate for you, it is important to obtain legal, financial and accounting advice in advance.

15.01.2022 Qualified and limited titles are special notifications on the title of a property which warns a purchaser of issues in respect of the land being bought. Depending on the type of warning, additional steps are required during the conveyancing process to assure a buyer they are getting good title to the property. A qualified title notification requires the vendor to produce for the buyer an abstract of title which shows verified dealings with the property until the current vendo...r’s ownership. The current buyer will need to retain the abstract of title for when they may sell the property in the future. More commonly, a limited title usually means there is uncertainty about the dimensions or boundaries of the land and this notification can usually be removed by the registration of a delimitation plan prepared by a surveyor. There can be significant costs involved with the preparation of a formal delimitation plan (as opposed to a normal survey plan) and this should be checked with your preferred surveyor. Should you encounter either of these notifications on a property, it is important that you obtain specific advice as soon as possible.

14.01.2022 If you have separated from your partner and agreed to divide up your joint property either in the form of consent orders or a formal written or informal agreement, it is important for your lawyer dealing with the division of property to be familiar with the practical processes of the division. Some family lawyers will assist you to obtain the orders/agreement dealing with the division of property but do not have the property expertise to assist you with carrying out the divis...ion set out in that order/agreement. The transfer of property pursuant to an order/agreement need to be electronically drafted in a specific manner in the electronic conveyancing system and you will likely be entitled to an exemption in stamp duty on the transfer which can also be processed electronically. If you need assistance carrying out the division of property in orders or an agreement, please do not hesitate to contact me.

09.01.2022 If you are starting a company, you may wish to consider drafting director and shareholder agreements to supplement the rights and responsibilities set out in the company constitution. Most companies adopt either a standard set of Replaceable Rules set out in the Corporations Act 2001 or use their own drafted constitution upon initial registration of the company. However, the constitution may not adequately cover all the rights and responsibilities that are expected between th...e directors and shareholders, directors and other directors and between shareholders. Director’s agreements and shareholder’s agreements are tailored agreements that set out and make enforceable any additional obligations you may wish to implement, such as restrictions on trade upon resignation of a director or repayment of loans to directors and/or shareholders. If you want further advice on director’s agreements and shareholder’s agreements, please do not hesitate to contact me.

08.01.2022 The NSW government has implemented legislation to allow the witnessing of legal documents via video conferencing. This provides a welcome practical solution to the witnessing of documents during a pandemic lock-down. The documents covered include most documents where a witness is mandatory, such as wills, power of attorney, deeds and affidavits/statutory declarations.... The witness needs to sight the signing of the document via video conference (it is not enough to present an already signed document). The witness can then attest to the signing of the document by signing an identical counterpart or signing a copy of the signed document. A document witnessed using this method needs to be specifically endorsed as being witnessed pursuant to Schedule 1 of the Electronic Transactions Regulation 2017 (NSW). The new electronic witnessing measures will be available until 22 October 2020 unless repealed earlier by parliament. A number of restrictions are set to be lifted on 1 June 2020 but we are hopeful some of the new measures implemented for the lock-down may be preserved and streamline otherwise archaic legal processes.

06.01.2022 Banks are often reluctant to lend money to those without a predictable source of income to pay off the loan, such as retirees, contractors and/or casual workers. If you fall into these categories, it is important to obtain a final approval for the loan before entering into a contract to purchase property. It is also important to speak with an accredited mortgage broker or credit licensee so you can understand the risks involved in paying off your loan when you do not have a p...redictable source of income. I can recommend you to a number of mortgage brokers or you can use a number of comparison websites that are now readily available. Some banks offer a reverse mortgage loan for retirees that allow repayments to be made on when you move out or sell the property. However, the interest that is unpaid can compound quickly and wipe out the equity in your home. Other borrowers who are desperate for credit turn to secondary or private lenders which charge higher rates of interest and set-up fees but are less stringent on proof of income. It is important to plan ahead on how you will repay the loan such as by the eventual sale of the home/downsizing. Secondary lenders and reverse mortgage loans often require the borrower to obtain independent legal advice before they will be issued. In both situations, it is important to also obtain advice from an accredited mortgage broker or credit licensee so you understand the financial implications for your future in entering these loans.

06.01.2022 A franchise agreement governs the relationship between the franchisor (usually the brand) and the franchisee (usually the individual shop or premises trading on behalf of the brand). For example, in a McDonald’s franchise at Suburb A run by John Smith using his corporate entity A, McDonalds the brand is the franchisor and the corporate entity A would be the franchisee. Franchise agreements set out the rights and responsibilities between the franchisor and franchisee, such as ...who has rights to intellectual property of the franchise and who is responsible for the lease, overheads and running expenses etc. Franchise agreements are usually drafted in favour of the franchisor so it is a good idea to have your lawyer provide clear written advice to you so that you are not caught unawares. I have experience dealing with franchises and provide clear, professional advice. If you need any assistance in this area, please do not hesitate to contact me.

06.01.2022 If you have anyone working for you or your business, you should be aware of the differences between employees and subcontractors. An employee is someone in an employment relationship with you or your business, whereas a subcontractor is someone who provides services to your business through a contractual agreement. An employee is entitled to various mandatory employee benefits such as superannuation, leave entitlements and minimum wages. Many businesses, particularly in the c...onstruction sector, classify workers as subcontractors due to the varying demands of work or other commercial reasons. It is important to remember that courts will look at the entirety of the relationship between the parties to determine whether the relationship is an employment or a subcontracting relationship. Any labels placed on the relationship by the parties will not necessarily bind the court. The court will look at factors such as the degree of control over the work, risk in the work, method of remuneration and the entities involved. The above is not intended to be comprehensive advice and if you have any concerns about the nature of your relationship with your workers, it is important to obtain legal advice as soon as possible.

05.01.2022 A number of Covid-19 restrictions have eased from 1 June 2020 in NSW. The updated Public Health Order setting out the rules can be found at https://gazette.legislation.nsw.gov.au/so/download.w3p. Restaurants can be open for up to 50 customers (subject to having 4 square metres of space for each customer excluding staff) and they must have a Covid Safety Plan and retain the contact details of customers. The previous restrictions on regional travel have been removed although h...oliday homes/rentals are limited to 10 occupants. Beauty salons are limited to 10 customers and must have a Covid Safety Plan. Counselling services/premises are exempt from the requirements under the rules. Public gatherings and individual groups in any premises under restrictions remain limited to 10 persons (ie, my casual soccer group will need to continue with small sided games for now). It is worth reading through the order in detail to see what rules apply to you as it is impossible to list every circumstance here. If you need any further clarifications, please do not hesitate to contact me.

04.01.2022 I am looking forward to a nice getaway at a hotel or AirBnB once the physical distancing measures are relaxed. While AirBnBs are a great way to earn extra income from your properties, did you know that they may be prohibited under some council ordinances or strata by-laws? These restrictions are not too common but something I have definitely come across in my practice and I make a point to advise my clients on as you can never second guess the purpose someone is purchasing a property for. If you are considering purchasing an investment property for short-term rentals, you should ensure that your lawyer checks that there are no property restrictions in the contract that would prevent you from using the property as a short-term rental.

01.01.2022 If you need a loan to buy a property, a mortgage broker plays an important role in finding the best loan for you and ensuring you meet the lender’s eligibility criteria for the loan. They can calculate how much of a loan you will need (estimating for stamp duty and legal costs) and advise you on the repayment terms of the mortgage. Mortgage brokers are required to hold a credit license for the work they perform. It is normally a good idea to talk with both your mortgage broke...r and lawyer before committing to a purchase to ensure you are not trapped into a purchase you cannot afford. Brokers are normally paid a commission by the lender from the loan they write and costs are not usually paid up front. There are now numerous mortgage comparison websites with brokers vying for your business through various rebate schemes and offering access to smaller more competitive lenders. If you need help with deciding on a mortgage broker or the financing side of your purchase in general, please do not hesitate to contact me.