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Tuesday, 9 May 2017




Enduring Power of Attorney
An Enduring Power of Attorney (“EPOA”) is a legal document which grants a person (the “Attorney”) the power to make important decisions for another person (the “Principal”) in the event the Principal loses the mental capacity to make their own decisions.

The EPOA must be signed by both the Attorney and Principal while the Principal still has capacity otherwise the document will be void. The EPOA only activates, that is to say it only confers power on the Attorney, once the Principal loses capacity. The EPOA must specify what matters the Attorney can make decisions about. The most common examples are health, personal and financial decisions however the documents are usually drafted broadly enough to cover almost any type of decision the Attorney may need to make for the Principal.

Binding Death Benefit Nomination
Most people are surprised when we tell them that their superannuation does not automatically form part of their estate when they die.

The superannuation funds each have their own rules but typically the decision of who to pay your funds to when you die falls into the hands of your super fund. The fund can choose to pay your children in disproportionate amounts, at different times or not at all, in any manner which the super fund chooses.

A Binding Death Benefit Nomination (“BDBN”) is an instruction given to a superannuation fund to pay all monies held by them on your behalf to your nominated beneficiaries. You are free to nominate your own beneficiaries rather than rely on the superannuation fund’s definition. You can also nominate your estate as a beneficiary itself so that your money goes into your estate to dispense with under your Will. The super fund is required to follow the instructions in the BDBN upon your passing.  There is a catch though:  your BDBN lapses every three years and must be renewed. 

Tuesday, 18 April 2017

Extensions

What happens in a conveyance when one party needs an extension?



Times and dates in Australian contracts are very important. Missing a deadline can have serious implications. The standard REIQ contract, and most other types of contracts entered into in Australia for that matter, will contain a phrase to the effect of:

Time is of the essence”.

Those words carry greater significance than most people know. The legal effect of those words is that if, for any reason, something ought to be done by a specific date and/or time, and that thing is not done before that date/time, then the party who fails to do the thing is in breach of the contract.

We see this in conveyances most typically where settlement must occur on a certain date. As a common, practical example: if one party is late to settlement and arrives after this time then the other party may be entitled to terminate the contract.

This doesn’t just apply to the date and time for settlement but includes all dates and times in the contract such as; finance conditions, building and pest, sunset clauses, and so on.
In order to avoid breaching the contract parties will often seek an extension. An extension is a variation of the contract and therefore as a rule of law it must be in writing and signed by the parties (or their solicitors).

Neither party is entitled to an extension. Requests for extensions can, and often are, refused.

It is common for the party from whom an extension is sought to place conditions on their agreement to extend, for example, that the other party pay their additional legal costs, pay default interest, or forfeit certain rights under the contract. 

Sunday, 2 April 2017

Tenants with Pets; Discrimination, Extra Bond and Extra Rental


Can a landlord demand an additional bond from a pet-owning tenant?

We have been asked recently about seeking from tenants additional bonds under the guise of ‘pet bonds’, ‘sureties’, or ‘guarantees’.  Apparently the thinking is that these types of bonds can be taken in addition to the four weeks rent that is ordinarily taken by landlords.  Landlords must ensure that they do not charge tenants a bond over the maximum permitted under the Residential Tenancies and Rooming Accommodation Act (RTRA), regardless of how that bond is described.

A rental bond is an amount paid by the tenant for the financial protection of the lessor against the tenant breaching the agreement.[1] In determining whether an amount is a rental bond, it does not matter how it is described in the agreement or arrangement.[2]

The RTRA[3] specifies the maximum rental that is payable for securing the tenant’s obligation under the lease agreement and that maximum is 4 weeks rent.[4]

Therefore, if a landlord asks a tenant for a ‘pet bond’ then the amount will be considered a part of the total bond payable, which must not exceed the statutory maximum of 4 weeks rent.

In Queensland the penalty for landlords asking for or receiving greater than the maximum rental is $2,438.

Can a landlord charge a tenant additional rent from a pet-owning tenant?

Imposing special tenancy terms and conditions is not discrimination. Landlords can ban pets from the premises in the rental agreement. Alternatively a landlord can insert special terms that govern whether the animal must be kept outside or inside. Also, a landlord can seek damages from a tenant whose pet causes loss or damage to the landlord’s property.  Rental can be increased regarding pets.

In Queensland the anti-discrimination legislation makes it unlawful to discriminate against someone on several bases such as gender, race, age, religion, and so on. However it is not unlawful to discriminate on the basis of pet ownership. This means that landlords can charge pet-owning tenants more rent than tenants without pets.



[1] Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 111(1).
[2] As above, s 111(3).
[3] Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
[4] As above, s112(1)(b).

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