Seeking healthy relationships with family , friends , neighbours and work colleagues?

Written by Family Law Head of Department, Warren Tegg.

I’m constantly negotiating. I represent people in dispute. They may fall foul of the law or be in dispute with a competitor, customer or supplier in business. My task is to negotiate an outcome. My work in Matrimonial or Commercial negotiation is assisted by an  understanding  the personalities I deal with. First I must understand my own. I learned that I am a strong personality,  a “powerful choleric” inBriggs Myers experts terms an “A” type. I say  “We work as a team and do it my way “ ! “Powerful choleric comes from  American psychologist (Florence Littauer). She simplifies a  personality test into two pages of strengths and weaknesses you identify. The result is a guide to  your own  blend of personality traits. Her work in  “Personality Plus” is both instructive and entertaining. You will be elated  to discover that you possess your own distinctive personality type and that, for instance , it is OK not to be like your partner. Step 1 shows how you view the world. Time to learn  how others view it. The brevity of this column prevents  a detailed explanation but people  are a combination of four personality types: Strong leader; Organised and meticulous Sanguine party animal; Easygoing Peacemaker Strong  leaders are great in a crisis. They know what to do next and will  make the decision. They do need organized help to actually carry out the decision. Some 37 % of people would rather do the job than make the decision. The world needs party people for  fun and gentle peacemakers to offset the decision makers. Opposites attract so Leaders seek organized peacemakers and vice versa. Party animals are great fun but they’ll forget to bring everything they need and don’t plan at all. Organized people may have trouble with spontaneity. And those seeking harmony may have trouble with  practicality. One part of a healthy relationship is understanding that our partner, co-worker or neighbor  views the world differently. Consideration of their personality in getting our message across makes communication effective. Understanding these differences will lead to healthier relationships.

Danger Ahead: Instalment Contracts- Common issues with these types of contracts

Danger Ahead: Instalment Contracts

Common issues with these types of contracts

What’s an instalment contract?

An instalment contract is where the purchaser pays via increments and does not usually obtain title until the final payment is made. The Property Law Act 1974 (Qld) makes special provision for instalments contracts and in many respects treats them differently to standard residential conveyances.

Identifying an instalment contract

If the purchaser is obligated to pay greater than 10% (or 20% for a proposed lot off the plan)[1] of the purchase price without receiving transfer of title then the contract is an instalment contract.

Important features include;

ü  The vendor cannot mortgage or sell the land,[2]

ü  The purchaser can lodge a caveat to protect their interest in the land,[3]

ü  The vendor cannot rescind the contract for the purchaser’s default in a payment unless a 30-day notice has been issued to the purchaser,[4]

ü  After one-third of the purchase price has been paid, either party can demand a conveyance of title from the other (subject to the purchaser granting a mortgage in favour of the vendor).[5][6] The party seeking the conveyance can’t be in default.

Common issues

Default

As stated above, where the purchaser fails to meet a payment the vendor can issue a notice giving the purchaser 30 days to rectify the breach. Two common mistakes arise following this. First, vendors often give the purchaser notice requiring payment within 7 or 14 days rather than the statutory requirement of 30 days. Second, vendors often misunderstand their rights and will purport to terminate immediately after the purchaser fails to make the payment. This actually results in a breach by the vendor.

Vendor’s reluctance to hand over title

Vendors are often reluctant to hand over title to the purchaser. Indeed they may not be able to do so if there is a mortgage that hasn’t or can’t be paid out.  A purchaser faced with a particularly difficult vendor can make an application to the Court to force the vendor to transfer title to the purchaser. This is very costly and the vendor can be fined upwards of $900.00. We always recommend purchasers lodge a caveat to stop the vendor dealing with the property at all until the Court application has settled.

Lodge a caveat

Although a vendor cannot grant a mortgage to a third party, they can grant other kinds of charges (we stress the importance of proper contract drafting here). Purchasers would lodge a caveat communicate to the outside world that they have a legal interest in the property. This defeats most claims from third parties that the vendor granted them some other form of interest.

Stamp duty

Although final payment of the purchase moneys may be years away, stamp duty is due 30 days from the contract date.  Significant penalty interest will accrue from this date until payment.

Existing mortgage over the lot

The purchaser should specify in the contract that instalment payments be made to the mortgagee (bank). The consequence of not doing so is that upon final payment being made the vendor’s mortgage may not be paid out and the funds dissipated preventing settlement.

Interest charges

A term in a contract providing that interest is payable where the purchaser fails to meet an instalment payment can be held invalid if not properly drafted. If the right to charge interest arises because the purchaser has granted a mortgage to the vendor, consumer credit legislation can step in to negate that right. Proper contractual drafting is absolutely paramount to ensure these rights are maintained.

Bankruptcy

If the vendor becomes bankrupt or enters external administration (for companies) the purchaser can enforce the contract against the vendor’s trustee, administrator or liquidator. However, the trustee can void the transaction where the purchase price was well below market value.

Taking possession and due diligence

Purchasers typically lose their right to conduct searches and seek compensation or terminate upon taking possession. The contract should take this into account by delaying possession for a few weeks so the purchaser can do their due diligence.

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[1]Property Law Act 1973 (Qld), S71.

[2]Ibid, at s73.

[3]Ibid, at S74.

[4]Ibid, at S72.

[5]Ibid, at S75.

[6]Ibid.

New stamp duty surcharge-Applicable to foreign acquirers for property in QLD, NSW and VIC

From 1 October 2016, Queensland will apply a stamp duty surcharge of 3 per cent on direct and indirect acquisitions of residential land by foreign purchasers.

Similar surcharges are in place already in New South Wales and Victoria, having taken affect from 21 June 2016 and 1 July 2016 respectively.

Note however that the surcharge only applies to residential land.

Residential land is land upon which a building is (or will be) situated and approved by the local government for human habitation by a single family unit. It is extended to include land which is (or will be) subdivided into lots for the same purpose. The definition extends to vacant land where a person undertakes or will undertake development of a building or buildings which will fit the description above.

The Commissioner is serious about reaping the surcharge. The foreign purchaser, the vendor and any co-purchaser will all be jointly and severally liable for any unpaid Additional Foreign Acquirer Duty (“AFAD”), even if the vendor is not foreign. If any AFAD is unpaid the Commissioner of State Revenue will have a first-ranking statutory charge over the land and can even obtain a court order to sell the land. However there is some comfort in that subsequent purchasers of lots will not be jointly or severally liable for unpaid AFAD where the Commissioner has yet to register a charge.

Importantly, if the purchaser becomes foreign within 3 years of acquiring the land they will need to notify the Commissioner within 28 days. It is an offence to fail to notify the Commissioner within 28 days. This imposes quite an onerous obligation on trustees and corporate directors to monitor share and unit holdings.