Special Residential Contract Conditions

You asked, we listened!!

We have now added Special Residential Contract Conditions to our Estate Agent tab on our website.

http://www.bcglaw.com.au/EstateAgents/EstateAgents-440/

We welcome your Feedback and if you require any other subject matter added we would love to hear from you.

Contracting Death- Real Estate

What happens when a contract is signed and the vendor or purchase passes away before settlement?

A ‘party’ is defined in the latest REIQ contract[1] to include the party’s executors, administrators or successors.

The take home message is simple: death does not release a party from their rights and obligations under the contract. This includes the parties’ obligation to complete the contract.

Do I need probate?

Practically, it may not be possible for the contract to settle until a grant of probate has been issued by the Supreme Court. A grant of probate, or a grant of letters of administration on intestacy, is a court order granting a person authority to execute the deceased’s will, or deal with property in accordance with the rules of intestacy (the Government’s rules). The grant takes approximately 10 weeks to be issued so the parties usually need to extend the settlement date out until the deceased’s executor has been able to get the grant.

The most unfortunate scenario here is where you act for the deceased’s party and the other side refuses to allow an extension of time.

What if the other party refuse to extend the settlement date?

Where a purchaser dies and the vendor refuses an extension, the vendor may place the purchaser in breach. On breach, the vendor could choose to take the purchaser’s deposit as well as either;

·        Terminating the contract, reselling the property and suing the purchaser’s estate for any loss they suffer on resale, or

·        Applying to the court for an order of specific performance, which compels the purchaser to complete the contract.

Where the vendor dies and the purchaser refuses to allow an extension, the purchaser may place the vendor in breach. On breach the purchaser could;

·        Terminate the contract and sue for damages, or

·        Apply for specific performance as above and sue for damages.

Who gets the proceeds?

In the event a vendor passes away before settlement, on settlement their personal representative becomes entitled to receive the balance of the purchase price on behalf of the deceased’s estate. In the event a purchaser passes away before settlement, if the contract settles then the property forms part of the deceased’s estate. In practical terms this means the property vests in the parties’ personal representative/s.

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[1] Clause 10.9(1)(d).

Assault and Consent - The Law in Sport

Sport is engrained into the Australian culture. It forms a significant part of our economy and serves to inspire millions. When we examine contact sports like rugby, league and Australian-rules football, it is rare that we stop to consider the legal ramifications of such events. Tackling someone to the ground and taking possession of their ball might be seen as assault and theft in an urban area, but it is a source of national pride when performed in a stadium for the world to witness. Where do we draw the line? When do we stop regarding wanton acts of violence as recreational and begin to perceive them as criminal?

Assault is the physical application of force to another without their consent. Clearly the keyword for our application to assault in sport is consent. Where deliberate violence does not exceed the tolerance of the law, consent is a complete defence. There are two types of consent; express and implied.

Express Consent

There is little chance of criminal liability arising from physical contact permissible under the express rules of the sport. Play that is within the rules and practice of the game and does not go beyond them will be a firm indication that what has happened is not criminal.

Implied Consent

A breach of rules involving physical contact will not be actionable unless a breach is outside the reasonable expectation of the reasonable player, or beyond the unwritten code and customary norms of the game.

Factors bearing upon implied consent include:

o   The nature of the game played (whether amateur or professional);

o   The nature of the particular acts and their surrounding circumstances;

o   The degree of force used;

o   The degree of risk of injury; and

o   The state of mind of the accused.

·         A player being sent off might not be sufficient to say consent was not there.

·         Instinctive reactions might be consented to.

·         Intentional causing of harm may mitigate against a finding of deemed consent.

·         Unwillingness of the victim to participate is a factor.

Where contact exceeds consent, the contact is deemed illegal.

Other considerations

·         The victim is deemed to have consented to any unintended harm which results from the consensual contact.
·         Violent contact outside the tolerable limits of the criminal law, although within the express or implied rules of the sport, is prosecutable.
·         Behind the play assaults are not consented to.