Transfer Documents

There is a small suite of documents and a clutch of processes that go with them, designed to transfer to the buyer the tangible and registrable assets that make up the business.  In most cases it is the buyer’s responsibility to create the documents that create these transfers, and you simply need to sign and return them.

You need to be aware however of the process.

Lease

In some jurisdictions the Lease Transfer is made of up of two documents; the Assignment of Lease itself, and a Deed of Covenant.

The Lease Assignment document (it may be called The Transfer or a Deed of Assignment depending upon the type of Lease you hold), will be prepared by the buyer and sent to you to sign and return.  That document effectively transfers any rights that you have in the Lease.  You should not return it unless you receive a written Undertaking from the solicitor to the buyer, that the document is not to be used pending settlement.  If you do not receive this Undertaking do not return the document. Do not accept this Undertaking from the buyer itself.  An Undertaking from the solicitor is an enforceable undertaking able to be pursued both through the Courts and through the solicitor’s disciplinary body.  An Undertaking from the buyer itself is worthless.

The Deed of Covenant is a document designed to create a direct link between the buyer and your landlord.  It enables the landlord to sue and creates what is called “Privily of Contract”.  This document is prepared by the landlord solicitor at your expense and is often done very slowly, and in fact may not be ready by settlement.

You should check as soon as possible on the cost of this document, as prices vary wildly.  You do not have an opportunity to shop for prices, as the landlord will choose its own solicitor for it.

Your responsibility after the Contract is signed, (obligations vary slightly from Contract to Contract so check yours), is usually simply to take all reasonable steps to obtain the consent of the landlord to the Assignment.  Chasing the documentation is the buyers responsibility.

Business Name, Website, Telephone and other services

Again it is up to the buyer to produce documentation for you to sign, but if you want to avoid ongoing responsibility for electricity, telephone, internet and other services, it is important to take ad direct hand in seeing that these services are cut off from the day after the settlement.  This will take them out of your name.  Remember, many of these services have security deposits, which should be adjusted off your final bill or returned to you.

Local Authority and State Government Licenses

Most authorities maintain that these licenses cannot be “transferred” or “assigned”, and have to be applied for freshly by the buyer.

Regardless of the wording used, the buyer will be responsible for obtaining licenses in its name for the continuation of the business.

One potential catch for a seller is where the Contract makes the purchase of the business subject to obtaining all of these licenses, and gives the buyer the opportunity to back out if those licenses are not obtained.  It is implicit in that situation that the buyer will have to take all reasonable steps to secure that outcome.

Regardless, it will be important for you to be on top of the status regarding each of those licenses, and in direct contact with the licensing authority to ensure that this is happening.

Requisitions on Licences

Some of these licenses have a requisitions regime.

Particularly in a food preparation business, the Local Authority License process often creates a situation where the local authority will indicate that the license can be assigned but only once several requisitions have been completed.

The Contract will usually specify but this is your responsibility, but sometimes will place monetary cap on the value of requisitions which with you have to comply after which it is the buyer’s responsibility to pay.  If you believe that requisitions are possibly or likely you should attempt to limit the monetary value of your contribution.

Your Moving Checklist- things to consider prior to signing a contract

Do you want to hire a removalist or will it be easier (and cheaper!) to do it yourself? You should get some quotes and recommendations from family and friends before deciding on a removalist. Make sure you ask for estimates of time required to pack and unpack a truck.

Are you moving for work? Does your employer have a relocation policy? It's worth checking out for reimbursement purposes.

Do you have appropriate insurance cover for your possessions during transit? Your policy may need revising- contact us for an insurance referral. This would also be a good time to make a list of your household items, not only for insurance purposes, but also for packing. Items of value should be noted personally as well as on your insurance policy, and appraised in case something happens prior to or during your move. Another safeguard would be to photograph your items as a visual record for yourself and your insurer.

Make up seperate file for solicitor's paperwork, bank paperwork, quotes for removalists etc. Also, your important documents should be kept in a central location where they are easily accessible and not likely to be misplaced. There might include:

• Personal and family records
• Medical and dental information
• Veterinary
• School records
• Legal and Financial documents
• Birth Certificates
• Passports
• Insurance documents

Start cleaning! You're moving- what could be a better incentive to de-clutter!

If you've loaned anything that hasn't yet been returned, now would be the time to take it back.

Take the time to attend to major cleaning items like window furnishings.

Eat for today, or statrt entertaining! this is the easiedt way to clear out your cupboard, fridge and freezer to make for an easier move.

Now that you've signed your contract...30 days prior to moving
What will you need to pack and move? Start putting together:-

• boxes, lots and lots of boxes of varying sizes
• scissors
• masking/ packing tape
• bubble wrap, newspaper and tissue paper to wrap valuables
• towels and blankets would also be handy for wrapping valuables
• labels for your boxes
• black texta to write on your boxes
• styrofoam beans and cardboard for packing
• garbage bags
• rope and packing string for securing
• bungee cords/ octopus straps
• utility knife
• wheel burrow for easy transport of larger/ heavier items
• back brace/ support
• volunteers/ helpers

You'll have an idea of your settlement date by now, so book yourself a removalist. If you're making the moving arrangements yourself without a removalist, make sure you book your truck as early as possible. You'll need to take into account what day of the week you're likely to be moving, as this will possibly affect availability. Mondays and Fridays are normally the busiest because of people wanting to move over weekends, so bear this in mind.

When you have your new home secured, make a layout for your furniture. Now is the time to cull or upgrade- will your current furniture match your new decor? Storage arrangements might also be an option for you to consider.

Try to start packing now. Box up those non-essential items so that you have less to worry about as you get closer to your moving date. Leave the absolute essentials until last to pack. Things like books and DVDs, or all that extra linen can be put away ready to be moved.

You might want to leave valuable or fragile items until last to pack, or maybe have these things set aside to be moved personally by yourself if you have concerns about breakage.

Make some sort of reference for your packing, like colour-coding your rooms. Keep a list or brief description about the contents of your boxes. If you have a large space like a spare room, use this as your storage space rather than leaving boxes all around in different rooms.

Have you given the requisite notice? If you are renting, make sure you have advised your current landlord or agent, in writing, of your intention to move.

If your children will have to change schools, contact their current school to arrange the transfer of their records to the new school. Even if your children remain in their current school, advise the school of your new contact details.

Don't forget those utilities! Arrange to transfer your connections for telephone, electricity, gas, etc from your current home to your new home. Always allow an overlap, just in case: have your current home disconnected the day after you move, and your new home connected the day before you move.

Will you need to undertake some major cleaning or building work? Schedule these as necessary. Make sure you contact a local locksmith to have new locks installed throughout your new home.

Getting closer to moving day...two weeks prior to moving
Time to get down to the nitty-gritty. Speak to your real estate agent and your solicitor about a settlement time so you can arrange your inspections and coordinate your removalist/truck.

Have a garage sale to get rid of those items you no longer want, and make some money to cover those moving costs.

For peace of mind, it may be easier for you to arrange a babysitter for your children on moving day. This way you can concentrate on the move and other last minute things. The same applies with your pets. It can be distressing for them so if they can be looked after by a family friend, then make that arrangement. Alternatively, arranging a kennel for the day might come in handy.

Start making the notifications to change your address with your bank, local post office, billers and subscriptions.

If you are moving interstate and have memberships to various clubs, you may be able to transfer or obtain a refund for the unused period.

Go through your car, drawers and bags to make sure you have all the keys and remotes ready to hand over. If you have any warranites, passwords for security, instruction booklets or general information, leave it together in the kitchen, together with a forwarding address if any of your mail is accidentally sent there.

If you have valuables that you don't want to lose or have anything happen to, consider leaving them with a family member or your bank until after your move.

You're almost there...one week prior to moving
Do a last minute check and take the time to return any borrowed items like DVD rentals or library books. If you have accounts with local businesses, bring those up to date and pick up anything outstanding like dry cleaning.

Are there deliveries or subscriptions to cancel? Do you have any other personal records that need to be transferred?

Put away that shopping list until you've made an eating plan for the remaining week. Think about meals that won't use too many utensils and will help clear out your cupboard, fridge and freezer. Speaking of which, make sure you have an esky on hand for when you empty, defrost and clean your fridge and freezer. You should probably give that stove and oven a good clean too.

Keep aside your cleaning materials for that last big clean before you move, and start throwing out the out of date items and almost empty bottles throughout the house.

Do you need to make any confirmation calls? Double check your removalist is ready to go, as well as any travel or accommodation reservations you've made for moving day.

Give the garden and outside area a tidy up. Run the lawnmower over the front and back yards before draining them of oil and fuel, ready to be moved. Moving companies will not move them if they are full.

Lastly, pack critical items in a travel kit, such as:-

• banking information like credit cards, ATM cards and cheque books
• your licence or other identification
• a first aid kit
• clothing and toiletries
• keys
• torch and other tools
• your phone book
• paper plates and cups
• towels
• travel alarm clock
• toys and games for the kids
• any other personal items

One day prior to moving day
Get those major appliances disconnected and ready to move. If you have beds or other furniture that can be dismantled, now is the time to do it. In case of some computer disaster, make sure you have backed up everything before packing your electronics up.

Cleaning items will most likely be needed at your new home, so pack them last and label your box clearly. Bedding linen will probably be something needed too.

Check that you can pay by credit card or EFTPOS on the day, otherwise you'll need to have cash on hand unless you've made alternative arrangements.

It's finally here! Moving day
Time to pack up that truck and your moving equipment! Make sure that you have your mobile phone with you in case of emergencies, and that someone knows where you are in case you aren't contacable by mobile.

If you've booked a removalist, make sure you have someone at your old house who is available to answer questions. If you are paying your removalist an hourly rate, keep a record of the time they arrive and the time they leave.

If you have boxes or items you want to keep until last or take with you, set them aside in a "do not touch" area and make sure you make everyone aware.

Keep a record of your meter readings, just in case there is a delay in the disconnection. Turn off you gas and electricity at their meters and water at the tap.

Go through and do that final clean, and then a last walk through to check for:

• nothing being left in any closets or drawers
• all documents for the new owner are left prominently displayed
• all lights and switches are turned off
• the keys and remotes are kept together to be delivered to the real estate

Now that you're in your new home....
Make sure you or another person is available to answer any questions. Closely check your possessions for any breaks or damage and make a note if this has occured.

Have your utilities been connected? Plug in and check your appliances are in working order and if not, you'll have to organise some repairs.

Collate your receipts and keep everything together until you've had the chance to ensure your belongings are safe and undamaged.

Be careful with your pets. Take the time introducing them to your new home. Try to keep them secured for the first few days so that they can't try to go back to their old home.

A final few things:

• contact your transport department to update your address and your registration
• contact the electoral roll to update your details
• contact your local council for local sports clubs, parks and activities
• contact the local paper for a new subscription
• enjoy your new home!

Surviving your divorce- Chapter 1: Where to Start?

1.         WHAT DO THESE DISPUTES LOOK LIKE?

All legal disputes have certain common factors and follow a similar process.

Think of a road or a tree diagram with T intersections along the way, at which time you need to take in the surrounding circumstances and make a choice as to whether to go left or right. 

Your matter will be like that. 

At each of these stages, your advisers be there to help you make an assessment of the facts, look at the options available to you, and choose the one which appears to be the best available.

This choice should always be yours, and your advisers are there to follow your instructions once you have been informed and made that decision.

2.         THE INITIAL INTERVIEW WITH YOUR ADVISER

The opening interview should be a self-contained unit designed to give you some kind of knowledge of and control over your circumstances. 

The idea of the initial interview, which is normally done as a fixed fee, is to get your story from you, explain the Law, give you an overview of your position, and provide you with some of the tools to make the next few decisions.

You should leave that interview with a general overall knowledge of the battlefield you are entering and some idea of what to do next. 

This interview should also explain the role of your adviser and guide. 

You may be surprised at the format of this first interview but it should take the form of an information session for you, not a long winded, blow by blow, detailed history of you and your relationship.  That can, if necessary, come later.

This initial interview should be all about giving you knowledge not the other way round.  You want to know how this process works and the next few steps.  Then you can start to come to grips with your surroundings and get a feel for what is going to be happening.

If your adviser doesn’t explain this well enough or in enough detail, press him/her.  If you’re still unsatisfied, change advisers! 

You should feel comfortable with your adviser and have confidence in the advice you’re receiving.  You should also have the feeling that you’re going to be able to understand what you’ll be told in the future.  Unfortunately, some lawyers, even today, whilst having very good technical knowledge, don’t have good communication skills and are unable to speak a language others can understand.  You do not need a long list of latin phrases and complex explanations from your adviser.

That communication style is your lifeline to good decision making.  Remember you’re paying for this; get an adviser you can understand and who can relate to you.

3.    DOCUMENTS AND PAYMENT

You may be asked to make payment at the commencement of the legal process.  You should ask in advance what the credit arrangements for your adviser are and ensure you have this clear in your mind.  Lawyers are required by the Government to give you a written document to sign before you become responsible to pay them anything.  There are minimum requirements of disclosure by law firms in this document (called a client agreement or costs agreement). 

You must be allowed the opportunity to take this document away. 

Only once you are happy that you understand and comply with these requirements, should you sign and engage this adviser.

Some law firms will hold their fees until the end of the matter.  If you have assets tied up which will eventually come to you when your argument is settled, you should ask about this possibility.  Ensure though that there are no additional or hidden costs in doing it this way.

In some cases Litigation funding is also available.  Check however that the rate you are charged is acceptable.  Litigation funding is like any other personal loan to purchase something.  If you can obtain funding from some other source, or get a loan secured by property, you will pay a lower rate.

4.         WHAT TO BRING

Bring along any documentation which is relevant to your situation, correspondence, Orders, figures, bills, anything which you believe might be relevant.  If in doubt – bring it along.  Practices differ between firms of lawyers.  Some will want the originals, some will take copies and return the originals.  If your matter escalates into a court action you will need to produce the originals at a later time, so it’s important to know where they are.

5.         COMMUNICATION

Clear, simple, jargon free communication is the key to good advice. 

If you are not getting information you can understand and the process is not suiting you and bringing your anxiety levels down, say so.  If the situation does not improve, CHANGE ADVISERS.

This situation is too important to put up with advice that you find difficult to understand and make decisions upon. 

6.            WHAT WILL YOU GET OUT OF THIS FIRST INTERVIEW?

            At your first interview you should:

(i)            get to know your adviser, understand the communication style and become comfortable with it;

(ii)           establish some rapport with the firm in general;

(i)                tell your story in full to your satisfaction and that of your adviser;

(ii)              get an overall view of the process and how it relates to you;

(iii)             understand how the Law relates to your circumstances;

(iv)             understand what are the next few steps;

(v)               find out what the options are for you during those steps;

(vi)             begin to know what you can do about the problems facing you;

(vii)            leave better equipped and feeling more in control.

            If you do not achieve these goals at this interview, say so.  If you feel you are not going to achieve them, CHANGE ADVISERS.

7.         ASKING QUESTIONS

You should always feel like you can ask questions of your advisers. 

You should be aware though that Lawyers sell their time.  It is their stock and they sell knowledge; answers to questions. 

These answers will increase your costs, so consider your questions and do not use your law firm as a group of counsellors to make you feel better.  This is very expensive counselling.  Ensure you seek advice from and give instructions to your Lawyers and keep this process clear and clean.

Often, in family law disputes, the law seems unfair and unbalanced.  It is true that, since the 1970’s when the Commonwealth Government brought in the Family Law Act, allowing parties to divorce, make arrangements for their children and settle their property, virtually every concept in the (then new) “no fault” system was challenged and argued as too biased in favour of one party or another (often both at the same time). 

Over the last three decades or more, some progress has been made but the Act which the Court interprets and through which your adviser navigates and guides you, is still controversial and at times seems unfair.

Try to walk the line between questioning your adviser about these issues (and challenging your adviser to fully explain these issues) and wasting your own money arguing with your adviser about how unfair this is when they cannot do anything about the problem.

This is a common trap into which people fall.  They waste endless time (and money), effectively saying to their advisers, “this is outrageous; you have to change this; demand my ex complies with the attached list of demands”, when the plain fact may be that the Act and the Courts will not compel compliance and that particular issue cannot be resolved through an aggressive demand. 

Your adviser’s job is to show you options to get to these goals using the Act and the court rules, and also to put these issues in perspective regarding the entire matter.  It may be that because of some other legal issues, the thing you’re most concerned about is not an issue in the broad scheme of things. 

Make your adviser show you this to your satisfaction.  You do not have to swallow whole everything you’re told at face value.  Remember you’re paying for this. 

Try to avoid though, a long running, useless argument with your adviser, at your expense regarding whether or not it’s fair.

8.         OPTIONS FROM HERE

            After your initial interview you can:-

(i)                instruct your Lawyers to start acting and get on with the matter;

(ii)              go away and think about the process, make your decisions and return once you have done so;

(iii)             consider taking the next step or two without assistance if that is tactically beneficial and you feel confident.

There will be times when speed is important.  You may for example need to have your adviser act quickly to secure assets which are not in your name.  There may be property or other assets which can or are about to be hidden.  There may be issues of protection for you and/or your children.

Your adviser will understand this and should communicate this to you.  You need to feel satisfied and comfortable that this is the case though.

Your adviser may well give you the impression that there is no option but for you to proceed with him/her from here.  This is not the case!

You should, after this initial meeting, unless any issues of urgency exist, take time to ensure that you’re comfortable with your adviser and all you’ve been told. 

Often that’s a feeling you have straight away, sometimes it takes some reflection.  Don’t be rushed.  There is an important balance between protecting your rights and position, and feeling like you’re immediately losing control and a passenger on a journey to an unknown destination.

If you have the latter feeling:

a)            hold off; it may be that your adviser is not the right one for you;

b)            you may need to instruct them to take the urgent steps to protect you or your assets, and then consider making a change.  This is not ideal but is not a difficult as it seems.  Think changing banks or credit card providers as an equivalent of the amount of drama involved.