If you have a legal concern, these True or False Questions May Point You in the Right Direction.
(image above: Joseph Rose, Principal at Rose Lawyers)
1. If I leave the property before my lease is up, my bond will be held and I will be liable to pay a breakage fee as well as rent until the end of the lease contract.
True - a Lease is a contract, and by breaking the Lease, you are breaching the contract. If you break a Lease, the landlord suffers loss of rent until the end of the initial lease or until they find a new tenant – whichever comes first. Since you are still bound by the contract, the Landlord is able to recoup that loss from you. On top of that, your Lease will contain a breakage fee that you must pay if the Lease is broken, which is there to cover the Landlord’s administrative costs in preparing the relevant paperwork as well as any advertising fees. The Landlord will likely hold your bond until a new tenant is found or your lease expires, to ensure that you make all payments.
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2. If I have signed a Contract to purchase a property, it is too late to change my mind; I will be locked in as soon as I sign the Contract.
False – provided you have signed the Contract without first consulting a lawyer, your Contract will provide for a ‘cooling-off period’ of a minimum of 3 business days after signing. During this time, you can see a lawyer and get their opinion on the Contract. You can change your mind if you want to. If you do change your mind on the purchase, you will get your deposit back, less a minor retention fee. Provided you inform the Agent or applicable Vendor of your decision in writing within the 3-day period, you will be able to walk away.
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3. If my parent is terminally ill and they have said certain things regarding what they are going to leave behind, their lawyer will let me see their Will to confirm these statements and to make sure there is enough in their account for all of their wishes to fall into place.
False – while your parent is alive, no one is entitled to see their Will for any reason without their approval. Once the person has died, you will need to prove their death by presenting the death certificate. The lawyer will allow you to see their Will because you are the person’s child, but you will have to prove this by presenting your birth certificate.
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5. If my partner and I buy a house together but my partner is overseas when the Transfer of Land document needs to be signed, my partner’s Power of Attorney can sign the document.
True – a Transfer of Land can certainly be signed by their Attorney. HOWEVER, it is preferred that the Contract of Sale and the Transfer of Land have matching signatures. Different signatures can cause much delay with banks and complications with the Land Titles Office. If you want to use the Power of Attorney, your lawyer may ask you to re-sign the Contract of Sale on your partner’s behalf.
6. I have purchased a house, and the sale is 'Subject to Finance.' However, I have since found a better house elsewhere. If I don’t make the effort to obtain finance for the initial house, I can simply walk away from the Contract.
False – a requirement of the Subject to Finance clause is that you have to make all reasonable efforts to obtain finance. If you fail to obtain it, the Vendor will likely ask you for proof of application and for proof of your rejection. Another requirement of the Subject to Finance clause maintains that if you do not get finance by the date specified, you must let the Vendor know as soon as possible and prior to that date. If you don’t tell the Vendor, then the Contract will become unconditional once that date has passed and you will have to complete the purchase.
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7. My parent has nominated my sibling for Financial Power of Attorney. They are now able to make changes to my parent’s Will.
False – There is no Power of Attorney that allows someone to make a Will or change your Will on your behalf. However, a person who is nominated as a Financial Attorney under Power does have the ability to access bank accounts and to buy or sell property.
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8. I am ageing and I already have a Medical Power of Attorney and a Financial Power of Attorney. I don’t need a Guardianship Power of Attorney, as my family will look after me.
False – A Power of Attorney isn’t about letting people know what you want. It’s about giving them the right to make those decisions for you. You may tell your children what kind of nursing home you want to be in, but this will mean nothing if they do not have the authority to put you there. The other benefit of making a Power of Attorney is that by doing so, you choose who will make those decisions. If you have not nominated a specific person, then anyone can make an application to the Guardianship Board to have that right.
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9. My spouse and I recently bought a property. We are very happy with everything – except that when we moved in, we discovered that the air conditioning remote is missing, the bathroom fan doesn’t work and the kitchen tap leaks. We didn’t check these things before purchasing the property. There’s not much we can about that now, is there?
True – It’s extremely important that whenever you purchase a property, you check to make sure everything is in working order. If you discover at the final inspection a problem that was there when you first inspected the property then you are pretty much stuck with it. Don’t be afraid to be thorough – this is going to be your home and you need to make sure everything is as it should be. If you do find defect in the first instance, don’t be afraid to insist that the vendor fix it.
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10. There’s no mortgage over my property anymore because I have worked hard all my life and finally paid all the money back to the bank!
False – simply paying off the mortgage doesn’t remove the claim from your Title. To do that, the bank must formally Discharge the mortgage. You will be required to complete specific bank documentation for this to occur.
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11. My spouse and I are going through a rough patch and it doesn’t look like we will make it through. I’m really stressing though, because I know they will walk away with everything.
False – many people seem to think that their spouse will automatically be able to take all of their assets, but this isn’t the case. A court will look at a whole variety of factors when making a decision about Property Settlement including how long the relationship has been and what you brought into it; your respective ages; whether there are children of the relationship and, if there are, how old they are and who they live with; accrued superannuation and future earning capacity.
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12. I’m applying for a new job. One of the companies I have applied to has asked for a Police Check. The Intervention Order my ex took out against me last year won’t come up in a Police Check, will it?
True – an Intervention Order is a civil matter, not a criminal matter. This means that it will not show up on a Police Check and it does not give you a criminal record. However If you breach an Intervention, it becomes a criminal matter. The breach will then show up on a Police Check.
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13. My daughter has inherited a very large estate from her Grandfather. She’s just met a partner and I am concerned – what happens if they separate? Do we have pre-nuptials in Victoria?
True – Of a sort. In Victoria, we have a document called a Binding Financial Agreement (BFA). People can enter into a BFA before, during and after marriage and before, during and after a de facto (including same sex) relationship. A BFA before or during a relationship is an agreement as to how the property will be split in the event of a breakdown of the relationship. If one party has significant assets, then a BFA is a very important protective tool. If a BFA is prepared at the end of a relationship, it involves the amicable distribution of property between the parties and can be used instead of going to Court.
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14. I got caught drink driving recently, and I had a previous conviction for drink driving meaning that I was on a Zero licence (no detectable alcohol could be in my system). I know I will probably have to have an Interlock device installed in my car, but I will also have to have them installed in all of the company cars I drive.
True – there are at least two issues. Firstly, you pay for the Interlock devices to be installed in each vehicle. You must also pay for it to be maintained. Secondly, if anyone else uses the vehicle they must use the Interlock in order to drive. If they have consumed any alcohol then you will have a lot of explaining to do when it comes to getting your licence back – you will have to prove that you were not the one operating the vehicle at that time.
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15. I recently sold my retail business, leaving the leased property with 10 years on the lease which has now been transferred to the purchaser. I personally guaranteed the Lease which I first signed it. However, I have heard that I will remain liable for the Lease even after I’ve left. That means that if my purchaser does not pay the lease, the Landlord can ask me for payment.
True – the liability of the outgoing tenant and any outgoing guarantors remains throughout the remaining duration of the lease. BUT there is a very important document called a Disclosure Statement. If the Disclosure Statement is properly prepared and served on your purchaser, then the outgoing tenant and outgoing guarantors will cease being liable for the Lease once it is transferred to the purchaser/incoming tenant.
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