Common legal mistakes by Buyers of residential Real Estate in Queensland

by Andrew Lind on 10 February, 09

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Our Conveyance paralegals and property law solicitors have put together this list of common mistakes they see buyers of residential real estate in Queensland making.

1. Not making the Contract subject to the sale of your existing home

 

 Not just “sale” & should be subject to a satisfactory settlement of the sale of your existing home

 For buyer’s benefit only – special condition should say this & you may want to waive it and get bridging finance so that you don’t loose the property

2. Not enough time for building and pest inspections

 

 Time for searches of building records with the Council

 Your building inspector does not check this. We need to.

 

3. Not doing searches before the Contract is unconditional

 

 There are very limited rights under standard Contracts if a problem comes to light after the Contract is unconditional.

 

4. The finance clause not being properly completed

 

 If it is not properly completed, the Contract is not subject to finance. Ask us to check the Contract before you sign it.

 

5. Cooling-off termination costs


 Termination under the cooling-off period attracts a penalty (payable by the Buyer) of 0.25% of the purchase price.

 

6. Not insuring the property

 Generally risk moves to the Buyer from the day after the Contract is signed. If the property burns down between Contract and Settlement the Buyer still has to settle and claim on insurance to rebuild.

 

7.  Buying in the wrong name

 

 The time to consider whose name to buy the property in is before you sign the Contract. Changing it later always attracts extra costs (and possibly double Stamp Duty and Capital Gains Tax). Take our advice before you sign.

 

8. The Seller must clean up the place

 

 The Seller is not clearly obliged to leave the property clean or remove rubbish before Settlement. This will need to be dealt with in a Special Condition.

9. I can extend the Settlement Date later

Wrong. This is subject to the agreement of the Seller which the Seller can refuse regardless of what the agent may have said to you.

10. I can use the finance clause to get out of the Contract

You can only do so if you have promptly made an application for finance and made all reasonable endeavours to pursue that application and then do not have a finance approval by the finance date.

11. Time is of the essence

In Queensland (unlike other States) “time is of the essence” in property transactions which means that if time limits are not strictly complied with you can lose legal rights or have rights of the other party exercised against you.

The solution: engage our expert Conveyance paralegals and Property Lawyers early before you sign a Contract to avoid these mistakes and to carefully lead you step by step through the conveyancing process.

{ 89 comments… read them below or add one }

Werner Gundlach May 26, 2009 at 5:49 pm

Hi
we are in the process of purchasing a property as our home, we both signed the contract, the cooling off period is over also the building and pest inspection has been done to our satisfaction, yet for financial reason, my partner will get the loan for the property easier therefore we would like to take my name off the contract and have the contract only in her name with the same conditions.
Is this possible or do we have to ask our solicitor for a new contract
thanks Werner

Andrew Lind May 26, 2009 at 6:05 pm

When Conveyancing in Queensland you can do this with the consent of the seller. You need to be careful not to trigger an extra transaction for stamp duty purposes. The Qld Office of State Revenue has issued a specific ruling to follow in this circumstance. A Deed of Rescission and new contract will be required. Your lawyer will charge extra and the seller usually asks you to pay their extra legal costs.

Find our more about our Queensland wide Conveyancing Services with offices in Brisbane and on the Gold Coast.

Regards
Andrew Lind
(Note: This is information only and not legal advice.)

Susan October 7, 2009 at 5:42 pm

My de facto partner owns a home and we want to add my name to the title/deed. I think we will have to pay stamp duty to do this, right? But do we have to pay on the TOTAL cost of the house, or only on half of the house? And since I am not an Australian citizen, does this have to clear FIRB before we start?

Thanks, Susan

Andrew Lind October 13, 2009 at 5:32 pm

In Queensland there may be an exemption for this. FIRB approval may not be required if you are a permanent resident or in other limited circumstances. Please let us know if we can help with some specific advice.

Barb Scholz November 11, 2009 at 11:10 am

My 3 children purchased an Investment Property 3 years ago, now one of them wants out due to financial commitments. The other 2 still wish to hold on to the property but are confused as to how to go about changing the titles, and do they have to pay stamp duty again on the whole valuation of the property or just what they pay out for his share.

Thanks,
Barb

Tenille Lloyd December 9, 2009 at 8:07 am

We bought a “house and land” package, settling the land first then the house. We were “sold” a 4 bed, 2 bath, double garage house. The contract went unconditional 20/08/09, and after weeks of saying approvals were in final stages, on 13/11/09 the building company contacted me and said the double garage could not be built as it falls under the small lot code, so only a single garage and carport could be built. We DO NOT accept this major change and are opting for a 2 storey now, once we cancel the contract. In ringing the certifer, they said they told the builder in September this would not pass and were waiting on plans to be amended. The original agent who sold the package said he expressed concerns the house they were trying to put on our land would not pass, but they said it would not be a problem. I have shown the plans to several builders and straight up they say it won’t pass. The small lot code (which I know of now) is quite clear. We want to cancel the contract and get our $10,000 deposit back. The company are not responding to any contact we make. What can we do?

Anna January 6, 2010 at 10:02 pm

Hi
When is the right time to give the solicitor the contract to have a look at? Is it before or after we sign the contract of offer?
thanks.

Juanita January 20, 2010 at 10:17 am

I am purchasing land in Queensland. There are special conditions, including the condition that if other conditions are not met, our deposit will be refunded in full by the Seller.

My question is: by agreeing to that condition, is the Seller waiving their right to the 0.25% penalty in the event we cool-off during the requisite period? (I think the 2 issues – return of full deposit and the cooling-off penalty are mutually exclusive.)

Thanks for you help.
Juanita

Andrew Lind January 20, 2010 at 5:04 pm

It doesn’t sound like a waiver of the cooling-off penalty. I would need to see the contract to advise. Please let me know if I can help.

regards
Andrew Lind

lilian February 1, 2010 at 5:12 pm

I want to change the name on the title deed on my investment property as i have just got married and have taken my husband name, how much will it cost to do that? thanks

Andrew Lind February 1, 2010 at 5:21 pm

Generally most people don’t make the change but just leave the title in their maiden name. If you still want to make the change and the property is subject to a mortgage I suggest that you speak with your bank first as to what their requirements and costs are and then let us know if our Property and Conveyancing lawyers can be of any further help.

regards
Andrew Lind

Caterina February 15, 2010 at 12:02 pm

My husband and I have separated I am using the proceeds of our home to build a new one for myself and three young children. Is it possible to purchase the land in just my name while my husband will be paying the mortgage on my behalf as I have no income. My husband has a new partner so we wish to have the title in my name only.

Andrew Lind February 15, 2010 at 12:11 pm

The short answer is yes. The longer answer is that you should take some family law advice before launching down this path. We do not provide family law advice at this time. There are a number of specialist family law firms who could assist you.

More infomation: http://www.corneyandlind.com.au

Deborah February 15, 2010 at 12:58 pm

My mother recently passed away leaving her share of their house to my father. I know he should get the title deed changed to his name but he is not interested in doing it. There is no mortgage involved. What happens if he just leaves it as it is?

jake February 21, 2010 at 9:34 am

Hi I live in Queensland, and I was wondering who do I contact to get a title deed saying I own my apartment outright now?
thanks.

Andrew Lind February 22, 2010 at 5:16 pm

Assuming you have paid off your Mortgage you should as your financier for a Form 3 Release of Mortgage.

You will then need to arrange to lodge the Form 3 with the Titles Office. A Registration Confirmation Statement will then be issued by the Titles Office showing the registered ownership without the mortgage.

You are also able to apply for a duplicate (paper) title deed to be issued. This provides some protection as the title to the property can then not be dealt with without the production of a paper title deed.

Our Property and Conveyancing lawyers would be happy to help you with this.

Andrew Lind February 22, 2010 at 5:25 pm

This will make the administration task more complex and costly on your father’s passing especially if a significant amount of time goes past. In the meantime it may make insurance and other arrangements more difficult as well.

Our Estate Administration Lawyers can help.

Elizabeth April 30, 2010 at 12:43 pm

I have been with my defacto partner for 5 years and we are paying off a block of land which was meant for retirement, however I have decided to leave. He wishes to keep the land and refinance the loan. He wants me to sign a form from the bank taking me off the loan, does this also mean I am no longer part-owner of the block as I won’t be paying half of the loan? If I do sign, am I entitled to still place a claim for my half share of the value of the land after we deduct the outstanding loan amount?

monica May 7, 2010 at 1:05 am

Hi there
I live in WA and just wanted to know if i can purchase a property (residential) in my maiden name?

I currently have my husbands surname, but am thinking of reverting back to my maiden name in the future. So, can I purchase a property now, in my maiden name? and will a birth certificate be enough for me to provide for identity for the purchase and sale?

thanks

Lyn May 7, 2010 at 5:19 pm

Hi just got a question regarding buyers that are unconditional

If a buyer has bought a house and its unconditional can they then terminate the contract? This has been threatened by our buyer if we do not settle on the propsed date they wish us to, which wasnt agreed to at the time of contract (they have brought it forward).

Andrew Lind May 7, 2010 at 5:32 pm

The need for swift good legal advice in this circumstance cannot be overstated.

Generally a settlement date cannot be changed without both the seller and the buyer agreeing. Without that agreement the buyer is bound by the agreed date in the contract. A buyer threatening not to complete unless a change of date is agreed to may actually give you the right to terminate the contract if you act quickly. This is a minefield. Good legal advice from experienced conveyancing and property solicitors is a must.

Our conveyancing solicitors would be happy to help. Just give us a call.

Andrew Lind May 7, 2010 at 5:37 pm

You will need to check with a local property and conveyancing lawyer in WA. This would be problematic in Queensland given proof of current ID requirements.

Hayley May 22, 2010 at 11:06 am

Is there a penalty for a buyer withdrawing from a contract with the clause “Subject to the successful settlement” (of their home) In other words, their home is not going to settle, therefore they are not buying ours- is there a penalty? We feel it is unfair, as they included this clause after telling us their home had already gone unconditional. ? Thank you in advance

zoe May 23, 2010 at 6:49 pm

I signed a contract to sell our home with an unconditional date of 4/5/10 and settlement date of 21/5/10. The buyers requested an extension of the dates to 7/6 and 21/6 respectively. I agreed to this over the phone with my solicitor and also was told a sunset clause would be added however I didn’t a new contract and was told I didn’t have to. This did sound strange to me. I really don’t want to sell my house now as there has been a significant change to my circumstances. Is there any way of getting out of the contract?

sheena June 6, 2010 at 1:36 pm

buying a house in wa
sellers’s are not ready to settle
title in husbands name, he is currently going through a divorce?
Informed that seller is waiting on a document for wife to sign
Can he hold up settlement when title clear and the contract in his name?

Liam June 10, 2010 at 2:26 pm

Hi,
We have recently put an offer on a property in Brisbane, and were mid-negotiations with the owners on a final price (following 4 days of no response). At this point we were advised that a new offer was received by another party, and the owner wanted us to put in our BEST offer. Once this was done, we were rung and told our best wasn’t quite good enough, HOWEVER the owners would DEFINATELY sign the contract if we offered $x. Upon offering $x we were then told the other couple had offered slightly more, and the owners now wanted $y to secure the contract. Upon doing so, we were advised that the owners now may want to increase the price again.

We are feeling like we are being taken for a ride here, and were wondering whether we could legally stop them from messing us around?

Thanks

Andrew Lind June 11, 2010 at 3:29 pm

My suggestion is simply a practical one. Put your best offer forward with a limitation saying that it is not accepted by a certain nominated date and time it will lapse.

Whether the current conduct of the agent and the seller is lawful or not is something that would need careful analysis. Please let us know if you would like our Property Lawyers to consider that on a fee for service basis.

Our Conveyancing Solicitors can help with a clause on letter put on “expiry time” on your offer if you would like. Fees would apply. Let us know if you would like any help with this.

Andrew Lind June 11, 2010 at 3:42 pm

I wouldn’t have thought so. But your only right may be to terminate. Take advice from a local WA lawyer on this one.

Andrew Lind June 11, 2010 at 3:46 pm

You need specific paid for legal advice on this. Let us know if our Property Lawyers can help.

Andrew Lind June 11, 2010 at 3:47 pm

Not normally. Let us know if our Property Lawyers can help you with specific advice on this.

Shankar June 16, 2010 at 7:01 pm

I live in Sydney and I’m the buyer. The seller had signed the contract on 9th of April asking for 10 weeks of settlement which was 9th June, after 10 weeks he wants 3 more weeks which would be 30th June. I agreed to the extension only if the property price was reduced by $1000 (which he had increased seeing my overwhelming interest in the property). The seller has not agreed and its seem like I have to settle on 30th or may be he might ask for another extension and I’m not getting any help from my solicitor. What can I do? THANKS

Andrew Lind June 17, 2010 at 9:53 am

I am not a NSW property solicitor. You may want to seek a second opnion from another NSW property solicitir or at lease ask for some written advice from your current solicitor.

Tod June 22, 2010 at 5:26 pm

This is a great site,
We are currently looking at placing our home on the market and were going to try and sell it ourselves. I would like to know ca we do this without the services of a lawyer? If so how do we go about it. If not how much can we expect to pay and more importantly what do they do for the seller.
Thank you
Tod

Deanna July 18, 2010 at 5:14 pm

Hi ,
We signed the residential Form of offer to purchase on a Monday and our house burnt down Wednesday morning at 5 am . Is the offer to purchase still binding ? We are the sellers but have not recieved any letter of termination from our Realitor , but the buyers have moved on to another house without terminating the contract with us . What are our legal rights ?

Andrew Lind July 19, 2010 at 9:18 am

Hi Deanna

You need swift considered legal advice from an experienced property and conveyancing lawyer in your state or territory. If you are in Queensland our property solicitors and conveyancing solicitors can help.

regards
Andrew Lind

Andrew Lind July 19, 2010 at 9:40 am

You should have heard from our Client Services Manager about the conveyancing services our conveyancing solicitors offer.

Dennis July 19, 2010 at 9:53 pm

Hi.
My wife and I have put an offer on a Qld. property which was accepted. Contracts were signed by us with 90 day settlement and subject to the sale of our current property. The seller agreed to 90 days but not the sale of our property. My wife wanted the property in the worst way, so, against my better judgement, I allowed the agent to remove the clause relating to the sale of our property.
The seller is now messing us around by delaying the signing of the contract, (for whatever reason).
My question is….Can he refuse to sell us the property when all conditions have been met? What basis would he need to site in order to achieve this?
We really want this property and have the means to purchase it, regardless of the sale of our property.
Do we have any recourse should the end result be negative?
Regards
Dennis
P.S. Terrific site. Well done.

Audra September 8, 2010 at 2:51 pm

I have a large problem, my ex-partner by accident (unsure as to how this actually happened but we tried to fix it and it didn’t happen before we split) was included on the title of my home I purchased 2 years ago. We split up on very bad terms and he has since completely disappeared, the police can not locate him. As he was never on my mortgage and I have all bank statements to prove this how can I have him removed from my house title? The Queensland titles office require mine and his signatures to be witnessed by a J.P. Please help! I can not sell my house and buy another without his consent.

A.J. September 13, 2010 at 7:09 pm

Hello Andrew,
I am hoping you would be able to give me some insight.
I am selling a home in QLD, and a buyer has given me an offer but wants a clause of: I (the seller) pays his (the buyer) investment property stamp duty.
What i would like to know is, Is this legal? OR what is your professional advice in this situation?

Much regards.

Holly September 17, 2010 at 11:47 pm

My partner and I have put in an offer on what would be our first home. The estate agent has informed us that another party is interested and is putting in an offer tomorrow. I feel that the other party is at an advantage knowing that we have our offer in and we have had to make an offer on the assumption that they are also doing the same. Do we have the right have clear clarification that the other party has also made an offer and can we then increase our offered price if that is the case prior to these being taken to the seller?
We have also been advised that the owner can only choose one offer and negotiations will not take place with both parties but rather only with the ‘chosen one’- is that what legislation states must happen?
Thank you very much for your assistance on this matter as we are concerned we are at a disadvantage at this time.

Angela September 19, 2010 at 7:45 am

My husband and I agreed to separate and I signed a contract on a unit and am now in the finance period. However I initially believe that I would be able to use a substantial amount of our joint money and only needed to borrow $125000. My husband had agreed to let me have the joint money immediatley and then later sort out a legal financial settlement. I applied for a loan on that basis. However he now has been advised not to let me take the money until a full settlement is organised. I cannot just take the funds from the account without causing a huge uproar and ugly legal proceedings which I do not want to do as we had agreed to separate as civilised as possible. I will now engage my own lawyer so that a legal separation can be worked out. However I can not buy the unit at this time as the bank will not loan me the full amount and I will not be able to purchase my unit. Can you tell me if I am still bound to the purchase? I paid a $10000 deposit initially. Do I need actual proof that I cannot get a loan? How do I end the contract?

Andrew Lind September 20, 2010 at 1:46 pm

Sadly this is a common place for buyers to find themselves in. Rather than legal advice, I think the practical wisdom is, put your best offer forward first.

regards
Andrew Lind

Andrew Lind September 20, 2010 at 1:49 pm

Swift legal advice from a lawyer acting for in the conveyance is essential.

vivien September 22, 2010 at 9:58 pm

I would like to add my adult daughter to the title of my property as tenants in common, what steps need to be taken? Do I need a valuation for stamp duty?

Andrew Lind September 23, 2010 at 3:51 pm

Steps would be likely to include:

– Agreeing a price
– Consent of your bank
– Resigning finance documents
– Written Real Estate Agent appraisal of market value or valuation that provides evidence of three recent simular sales as the basis for valuation
– Contract / Transfer document preparation (including some searches)
– Payment of transfer (stamp) duty at the higher of price of value of the share of the property that is being transferred
– Lodgement of the transfer and change finance documents with the Titles office

Our specialist Property and Conveyancing solicitors would be happy to help.

Marc October 10, 2010 at 1:04 am

My land lady said she would sell us the house with a contract that was now a year ago. We had lengthy talks and she had even seen a solicitor. We agreed on a price and that the rent each week would be detucted from overall sale price. Time has been a yr and all I have from her is a letter of intent to sell to us. Also she has not fixed anything that needs fixing. I feel she is trying to ride us out until we’ve had enough as now she thinks she can get alot more than wat we agreed on. Where do I stand?

Chris November 8, 2010 at 8:17 pm

Hi,

We have a contract for the sale of a property. Prior to the finance conditions of the contract being met, it was requested that the buyer’s wife’s name to be added to the contract. I have correspondence suggesting that we agree to this as long as any costs are met by the buyer, they waive the cooling off period and the date of the finance clause and settlement remain the same. It seems a deed of rescission was not requested by our lawyers and the agent was instructed by the buyer’s lawyers to draw up a new contract with the same dates and conditions. This was presented to us, we signed where appropriate but have now been informed that the accompanying PAMD form for the original contract will not suffice for this new contract. Subsequently there is no PAMD form for the new contract and theoretically the seller may terminate successfully solely on that basis, should they so desire.

I am thinking of having a new contract drawn up with an appropriate PAMD form, even after the contract goes unconditional, just to protect us.

I’m also concerned that this wasn’t dealt with by way of deed of rescission.

Any suggestions?
Thanks in advance.

Andrew Lind November 9, 2010 at 9:09 am

I suggest that you press your solicitor for written advice as to how your rights should be protected and particularly ask that that advice address PAMDA compliance and termination rights.

Alternatively if you would like a quote from our property law team to provide that advice please send us copies of the contracts and all relevant correspondence.

Andrew Lind

Andrew Lind November 9, 2010 at 9:15 am

Marc, these questions are quite involved and you will need to engage a solicitor to take some specific advice. Please let us know if you would like a quote from us for a conference with one of our property solicitors, review the documents and provide our advice.

Andrew Lind

Jonathan November 17, 2010 at 2:15 pm

I am a first home buyer and am still looking at properties in Brisbane.

I was wondering when I should begin to consult with a lawyer?
Is there somewhere I can find out more about the process?

Things like; what are my obligations after making a offer? Are my obligations different if the offer is verbal or written? Is there specific wording I should use in any offer?

Thanks in Advance
Jonathan

David Trifiro November 28, 2010 at 3:44 pm

hello the house we are living in is currently under my sons name I would like to put my name and my wife’s name in the title deeds, is there a legal way to do this without having to pay the full amount of stamp duties and other fees. I understand there are some legal fees any suggestions would be helpful

David Trifiro November 28, 2010 at 3:46 pm

hello the house we are living in is currently under my sons name I would like to put my name and my wife’s name in the title deeds, is there a legal way to do this without having to pay the full amount of stamp duties and other fees. I understand there are some legal fees any suggestions would be helpful (our location is brisbane)

ben December 4, 2010 at 4:25 am

hi

I am currently going through a break up with a partner of 3 years.
is there anyway i can take my partner’s name of the house title without paying stamp duty.
I have heard you can do this with a court order.
I was wondering though if both parties have agreed to whats on the court order could that be changed or not accepted by the courts as such

regards

Cameron December 8, 2010 at 3:30 pm

Hi,

we have signed a contract recently on a property and as it was not possible (geographically) to get the 3rd person to sign on the day we made the offer we put “and/or nominee”. Now we’re being told a new contract has to be drawn up, is this correct?

Kate December 11, 2010 at 4:40 pm

Settlement was delayed due to something the buyer did and in the meantime we discovered major termite damage that the buyer has intentionally concealed. The pest inspection did not find it. Can the contract be rescinded as the buyer misled us?

Andrew Lind January 21, 2011 at 3:32 pm

Great question. You will have to take specific legal advice on this and the answer is going to depend on factors such as:

– the extent of the damage
– whether the terminates are still active
– whether the concealment was intentional.

I suggest that you also ask your lawyer to look at the Pest Inspection Report that you had done. You may have rights against your pest inspector. If the property is in Queensland our Specialist Conveyancing Solicitors and Litigation Lawyers can help. Let us know if you would like our advice.

Andrew Lind January 21, 2011 at 3:42 pm

You need to be careful and take some specific legal advice so that two lots of transfer (stamp) duty are not payable. Our Property Lawyers can help if needed.

Shah February 8, 2011 at 11:03 am

Hi ,

I bought a unit in brisbane in December 2006 and I applied for first home buyer then I got retrenched in Feb 2007 and I was jobless for around four month then I got a job in Sydney with lower pay and I had problem in paying the mortgage so I was forced to sell the house in August 2007 . Recently I got a letter from Queensland state revenue that I need to fill a form to re-assess the home buyer scheme. I have no idea what would be the outcome or what I can do. Can you please advise me what would be the best course of action?

Nick February 15, 2011 at 12:53 pm

What is involved in transferring ownership of a property to a family trust in Queensland and New South Wales?

Sarah February 17, 2011 at 1:42 pm

My partner and I bought a house on a joint mortgage. Unfortunately, we separated and he moved out. I have since been the only one making the mortgage repayments. How do I remove his name from the title deed considering that I am the only one currently paying for the mortgage? I have been told that re-financing (which is unaffordable for me at this stage) is the only way, is this correct?
I just don’t want for him to come back in a decade and claim half of the house just because his name is also on the deed.
Thank you so much in advance for your insight.

Emily February 23, 2011 at 12:08 pm

Hi,
I have recently seperated from my husband, he has moved out and left me with our two children. I do not have fulltime employment, but I do recieve money from the government. He has stopped paying the mortgage and left it to me to pay them. I am wondering is there a way to remove my husbands name from the home loan and deeds without refinancing? There is no way the bank would give me the money to cover the mortgage, but I am doing ok paying them at the moment.

Thanks!

Lorna March 3, 2011 at 3:34 pm

Our house is in my husbands name only. If he was to pass away or we were to divorce would I be entitled to half of the property? We have been married for 35 years and I have been working all that time. He has a Will and has left everything to the children.

Andrew Lind March 8, 2011 at 3:53 pm

I recommend that you and your husband take some specific family law advice now in an effort to come an agreement as to how the property be dealt with during your lifetimes and on your husband’s death. Ultimately this will be much more cost effective than a protracted legal dispute.

Andrew Lind March 8, 2011 at 4:00 pm

Removing your husband’s name from the title, loan and mortgage will be considered a refinance by your bank. You may want consider asking your husband to go guarantor. I recommend that you take some specific family law advice.

Andrew Lind March 8, 2011 at 4:07 pm

I assume that the title is in your joint names as well. Your partner needs to agree to transfer his share to you. You will need a lawyer to help you with this. This will then allow you to refinance.

Whether your partner has a claim later is somthing you will need specific family law advice on.

Andrew Lind March 8, 2011 at 4:17 pm

I can only comment of Queensland. At Least a Form 1 transfer (and Form 24) is required for registration of the change of ownership with the Titles Office. The transfer will need to be stamped by the Duties office. If it is a related party transaction you will need evidence of market value for transfer (stamp) duty purposes. If the property is Mortgaged the bank will need to agree. An original copy of the Trust Deed would also be required. Tax, duty and asset protection issues should be considered and advised on. Contact our Client Services Manager for a quote if we can help.

Andrew Lind March 10, 2011 at 5:15 pm

State Revenue concessions are often provided on conditions that the property continues to be your principal place of residence for a minimum period of time. Without responding to the specifics of your question I simply suggest:

– firstly you speak to the lawyer who helped you on the original conveyance;
– if there is no help there then try and speak with the Office of State Revenue directly after considering whether there may be an answer for you on their web site.

Caroline April 2, 2012 at 5:14 pm

I purchased a house with my son 4 years ago. He moved out 12 months ago, and I paid him a percentage of the amount we’d paid off at the time. I’d like to remove his name from the deeds and loan so that he is no longer tied by name to property, as he is on a disability pension and renting with friends and would be entitled to rent assistance if his name is not on the deeds/bank loan and seen to own a property. Refiancing by myself would not be an issue with the bank. How do I remove his name? I’m thinking by re-financing I would be buying him out, but not actually paying him money?

Andrew Lind April 3, 2012 at 10:52 am

Hi Caroline

Your son would need to Transfer his interest in the property to you at the time of the refinance and stamp duty may need to be paid (based on the market value of his interest given that you are related). You will need written evidence of value. (In Qld a letter form a Real Estate Agent with recent comparable sales data is sufficient). If the property is in Queensland our Conveyancing team would be happy to assist.

Thought will need to be given to whether the “disposal” by your son triggers a Capital Gains tax event. Is he disposing of an interest in his “principal place of residence” given that he moved out 12 months ago? (This is a question for your accountant).

regards
Andrew Lind

Delphine April 15, 2012 at 1:25 pm

The settlement date on my house purchase was 13 April. However, the sellers requested an extension of 2 weeks as there was a delay in registration of transmission application. If this continues beyond 2 weeks, what are my rights? Am I entitled to claim penalties?

Andrew Lind April 16, 2012 at 10:26 am

Hi Delphine

This is all going to depend on the terms of the Contract. It may be for example that settlement is subject to the transmission registering.

The extensions may cause you loss and damage and therefore it is perhaps not unreasonable to ask for the extra costs you will be put to by the extensions being requested by the seller. Take care though, because if the contract is subject to the registration of the transmission the seller may simply terminate the contract.

The other important aspect in Queensland is to ensure that time remains of the essence by stating this in extension correspondence.

You really need to take some specific legal advice on this before acting.

Regards
Andrew Lind

Jill June 8, 2012 at 11:40 am

Hi Andrew
All property my husband and I own is in his name and my former married name. An issue arises currently when there is a need to sign say a Land Registry document which may require witnessing by a Justice of the Peace.They request a proof of identity which wasn’t an issue up until I changed my drivers license to my husband’s name.
What is process of changing the all title deeds to overcome this issue in the future.
Cheers,
Jill

Andrew Lind June 8, 2012 at 1:21 pm

Hi Jill

In Qld the process is a Form 14 – General Request with a Form 20 – Declaration (statutory) setting out the circumstances that warrant a change or
correction of name. Evidence of the change of name (eg office copy of Marriage Certificate from the Registrar not the Minister or Marriage Celebrant) would also have to be produced. If the property is Mortgaged this would need to be done with the consent of and in conjunction with your lender.

If our Property Law team can help please let me know.

regards
Andrew Lind

karen November 19, 2012 at 11:04 am

Hi Andrew,

I wanted to remove my name from the title deed on our rental property to my husbands name only for tax purposes. Can I gift my half to him to avoid paying stamp duty?
Thank you
Karen

Andrew Lind November 19, 2012 at 11:24 am

Hi Karen

Probably not.

In Qld the relevant provision (copy below) the property move from one to both and that the property be your home.

Duty is usually assessed on the higher of “consideration (price) or value.” Given that you are related you will need written evidence of value (the requirement on this may vary from state to state).

DUTIES ACT 2001 – SECT 151
151 Exemption—particular residences
(1) Transfer duty is not imposed on a dutiable transaction that is the transfer, or agreement for the transfer, by way of gift, from 1 party to a subsisting marriage, de facto relationship or registered relationship, to the other party to the marriage, de facto relationship or registered relationship, of an interest in residential land if—

(a) after the transfer, the residential land will be owned by the parties as joint tenants or tenants in common in equal shares; and
(b) the residence will be the principal residence of the parties.
(2) Subsection (1) applies even if liability under a mortgage over the interest in the land, in existence immediately before the transaction, is assumed by the other party under the transaction.

Bridgette November 22, 2012 at 11:57 am

Hi Andrew
What is the process and costs involved in adding family (siblings) to a title deed?? Would it be more beneficial to transfer to a trust??
Thanks

Andrew Lind January 7, 2013 at 4:28 pm

Hi Bridgette
Adding names to a title means a partial transfer of the title for market value of that part (given that the parties are related) with Revenue consequences (CGT and stamp duty) on the part that moves.
Transfer to a trust will involve a movement of the whole title. Tax consequences of holding in personal names as opposed to a trust would also need to be considered.
I suggest a 40 minute consultation (in person or by phone) with one of our property lawyers. Please contact our office if you would like a price for this.
Regards
Andrew Lind

Andrew April 17, 2013 at 8:36 pm

Hi Andrew
I purchased land in Queensland in a new sub-development which is zoned residential, with special conditions about how the residence is to be built and what type of residence it can be. It is the developers aims to create a premier residential development. However, following the purchase of land and subsequent construction of the building, I discovered that the sub-development had no electrical services in place. The developer assured me that he was having the services connected, and this did occur, but I sustained 3 months of out of pocket and lost rent. The contract mentions nothing specifically about electricity being supplied, but as a residential development, I assumed the provision of power was to be included with title. Do I have a case to force the developer to reimburse me for loss of income and associated expenses due to his lack of due diligence in provision of power to the development?
Thanks

Andrew Lind April 18, 2013 at 11:03 am

Without seeing the Contract of Sale it is difficult to make meaningful observations.

The unavailability of electricity to land would usually not prevent title to the land from passing.

However it may be that the developer has breached representations or warranties to you that may result in some liability for damages. This would require some specific advice from one of our Dispute Resolution & Litigation Lawyers. I suggest Nathan Donovan (Lawyer) a Senior Associate in our office. You would need a 1 hour conference with him and would need to bring – the Contract of Sale and any material that may have amounted to a representation that all services to the land would be in place by a certain time. If you are interested in this please contact our office for a price.

Christine July 10, 2013 at 2:59 am

Hi Andrew,I recently brought a house.The son of the tenant owned it.She wanted 3 weeks after settlement to stay and paid rent.I agreed.I stipulated to the rental agent I wanted the rubbish ex old weight machine,boxes,pieces of scrap wood ,tyers,old dishwasher ect to be removed from shed and backyard.This did not happen.On the day a Friday before date of hand over of keys the real estate agent rang to say he could not meet me for the final inspection which I requested from the start.He gave me the renters number,I rang her to inspect and work out apropiate time to pick up keys.She was adamant that 12pm that friday night that she still had the right to dismiss my request for inspection.The next day I saw that the rubbish was still in shed and lying around yard.When she turned up with 30 keys which only 2 were useful,I told her I wanted the rubbish removed the coming week.I have not heard from agent who works for a well known firm who has branches all over Australia or the ex tenant about this matter,now has been 5 days.I do not want to pay for the removal of this rubbish without being reinbursed for this problem.It will cost $300.00 or more easy, plus not including the garden not being cleaned up as well.What is the best way to deal with this??Kind regards Christine

Andrew Lind July 10, 2013 at 9:12 am

Hi Christine
The Tenancy Agreement is the starting point and what it says about the condition the property would be left in. In this sort of arrangement however it is not unusual for there to be no formal Tenancy Agreement and no bond but a simple exchange or correspondence about the essential agreed terms.
The Residential Tenancies Authority would be a place to call to enquire as to what they suggest. http://www.rta.qld.gov.au/
The lawyer who assisted you in the conveyance should also have some suggestions.
regards
Andrew Lind

Julia August 19, 2013 at 12:30 pm

Hi Andrew,
I am going through a very messy property settlement, but the house deeds and mortgage are in my name and I was given the house as spousal maintenance. Being on the single parent pension I could not maintain the mortgage and rented out the house which has now been on the market for over two years as well. I struggle to put food on the table every day as I don’t receive child support from the father and the pension only covers the rent with $50 left over. The house is basically the mortgage now and there is no financial gain for myself when it does sell.
My question is I want to transfer the deeds only of the house to my daughters (19 year old) and keep the mortgage in my name. I will then be entitled to more affordable housing with NRAS and more assistance with centrelink as the rent is deemed income.
Is this possible and how do I go about doing it
Kindest Regards
Julia

richard howell October 23, 2013 at 5:20 pm

We recently had a contract on the sale of our house fall through after they said they were unable to get finance.there was a subject to finance clause in the contract.how ever I know they have the money and are using this to escape the contract.what are my rights?

Andrew Lind October 23, 2013 at 5:29 pm

Richard

Great question. If you read the finace clause carefully such a clause often oblige the Buyer to make anm application for fince and take reasonable steps in seeking to obtain finance. However these are very difficult to enforce. It may be worthwhile considering asking the Buyer to demonstate that they have complied with thier contractual obligations, pointing out what they are.

regards
Andrew Lind

Joan January 13, 2014 at 9:35 am

Hi,
I have a contract of sale on my home, low deposit and long term settlement.
Contract went unconditional July 2013 with settlement due 28th February 2014.
Problem: the sole buyer has passed away and his PR are not in a position to complete. Is the deposit able to be claimed by me to cover costs etc if I agree to rescind the contract.
Thank you
Joan

Andrew Lind January 15, 2014 at 2:43 pm

Hi Joan

As suggested in my email to you one of our lawyers would need to review the Contract and provide you with some advice on this one. Please let us know if we can be of assistance.

regards
Andrew Lind

Tamara February 15, 2014 at 8:06 am

I have separated from my husband and we jointly own a property. We purchased the house with compensation money because he was involved in a car accident. We have 2 children. Unfortunately things have turned nasty and now he wants to remove my name from the deed of title. My understanding he requires my signature which I’m refusing to do as I believe I should be entitled to half. He received his compensation monies after we were married. Need advice for my situation and what to do next.
Thank you
Tamara

Lauren September 15, 2018 at 2:30 pm

Hi Andrew,

My partner and I signed a contract and took out building insurance as required by qld law. We carried out and building and pest inspection which brought to our attention that a pergola structure with electrical wiring has been added to property without correct planning approval or sign off. After notifying our insurance provider we were informed that in the event of a fire/accident originating from the unapproved structure, our insurance policy won’t cover us. Of course we assumed the entire building was legal when we signed the contract, so it doesn’t seem right that we are liable. Can you offer any advice on this situation?
We are considering going ahead with the purchase and pulling down the structure as the house is still a good purchase, but what happen if the dodgy electrical work causes a fire before the contract settles and we are able to remove it?
Any a dice would be appreciated.

Andrew Lind September 18, 2018 at 11:19 am

Hello

Thank you for your question.

Assuming the risk is one you want to manage, which from your question, it seems that it is I offer the following thoughts.

The key is disclosure of all this to the insurer and have the underwriting provided on the basis of this disclosure. You may need to shop around for this.

The alternative is a negotiated amendment to the Contract to shift risk back to the Vendor pre-settlement, but that amendment would need to contemplate what would occur if there was material damage to the structure pre-settlement, for example a right of termination or a mechanism for adjustment to the purchase price. Even in this case you will need to deal with the insurance risk from settlement until you can remove the structure.

Regards
Andrew Lind

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