Proposed legislative attack on "The Castle"???

Barely just over 6 weeks ago, the High Court decided that Parramatta City Council cannot compulsorily acquire land owned by the claimants, R & R Fazzolari Pty Ltd and Mac's Pty Ltd without their approval. Before this decision, the claimants successfully challenged the Council in the Land and Environment Court of NSW. On appeal, Council succeeded in the NSW Court of Appeal

Many in the media at the time likened this battle over the intended compulsory land acquisition by Council as akin to the small guy versus the big guys theme in 1997 "The Castle" movie.

Parramatta City Council proposed to develop a block within its CBD in a Public Private Partnership between Council and 2 developer companies. Council agreed with the developer to compulsorily acquire the claimants' land, then re-sell it to the developer to enable the development to proceed.

The Local Government Act provides that if land is being acquired for the purpose of re-sale, it can't be compulsorily acquired without the owner's approval. Council argued the acquisition was primarily to implement its "Civic Place" project, and not for the purpose of re-selling. The High Court rejected that argument.

It has recently been reported in the Sydney Morning Herald, here and here, that there's now legislation before the NSW Parliament proposing to give councils the right to compulsorily buy private land and transfer it to developers for resale for profit.

The Herald's article reports that Mr Fazzolari, one of the original claimants, to have said "If this happens, no one is safe ... this is not about public purpose - this is about money".

I think it couldn't have been better said!

Go here for more information I've previously posted about compulsory land acquisition in NSW.

Even when your home loan is approved, remain vigilant!

Home buyers are typically advised to ensure their loan is approved before entering the contract, or before their contract becomes unconditional. Many home buyers in NSW sign their purchase contracts at the real estate agent's office. This normally entitles the buyer to a statutory minimum 5 day cooling off period. In this period, buyers normally arrange and finalise their home loan approval, see their lawyer, and arrange for property inspections.

I don't normally see my clients take notes, not that I mind, but most don't. A colleague recently told me a story of purchaser client was informed of their unconditional loan approval. The purchase contract then becomes unconditional. All was proceeding well until the lawyer contacted the bank to check on some documents. The bank advised their client's loan was declined! Not surprisingly, this caused a bit of a stir, panic on the client's part, and lots of stress.

The client was initially advised to obtain written confirmation of their unconditional loan approval. They didn't... they said they trusted their broker and the bank, as they had been so nice to them!!!

The saving grace, amongst the flurry of telephone calls and correspondence, was this buyer/borrower kept notes of her conversations. Using the information from those notes, the lawyer ascertained that after approval was granted, the loan application proceeded within the bank to the next level where it was declined at that second stage. At this point, the bank referred to an old (by about 3 years or so) valuation for the same property, not the valuation obtained a few weeks beforehand. Yes... the bank had made a mistake!

The moral of the story? Making notes certainly assisted this borrower's lawyer to pin down some sort of breakdown that occurred in the bank's internal process and have the bank re-confirm the loan approval.

What I think this story stresses too, is the importance for a home loan borrower to ensure that their verbal unconditional loan approval, for the amount applied for, is confirmed in writing by the lender to the borrower (NOT to the broker).

Our Quality Journey

Visitors to my Alvaro Edwards Solicitors site will notice the Quality Endorsed Practice logo on almost every page. See this page on Quality Endorsed Legal Practice for more information on what this means and how it also benefits my clients.

This post, however, is to proudly announce that SAI Global just completed its annual audit of my practice and again, recommend the continuation of our Legal Best Practice certification under the ISO9001/LAW9000 standard!

Repeating what I've stated previously, this is another incentive for my team's continuing commitment to providing quality management systems for the provision of legal services to my clients.

Damages awarded for breach of exclusive territory provision in franchise agreement

Franchise business systems are popular for many reasons. Many retail based franchise systems provide a degree of security, a form of limited "monopoly" or exclusivity, if you like, by granting exclusive territory rights to the franchisee for the duration of the franchise relationship. There are varied forms of such rights, but if that right is breached by the franchisor, what exactly can a franchisee recover from such a breach?

A decision of a single judge of the Federal Court (Haviv Holdings v Howards Storage World) handed down just a few days ago provides some answers.

This court decision also shows that:

• The court will grant relief, even where the breach appears to be relatively minor on its face. A breach is a breach!
• If loss is suffered caused by a breach of contract, difficulties calculating that loss will not of itself defeat a claim.
• The court will, when assessing damages that are said to flow from future losses, apply certain discounts to the calculated gross loss.
• Importantly, the court found that in calculating the damages, it would look at losses suffered up to the end of the last option period, even though those options may have not been exercised by the franchisee.
• Breach by franchisors of exclusive contract territory rights granted to franchisees is something that is take lightly - check the wording of the exclusive territory provisions in your franchise agreement!

Howards Storage World (HCW) is a specialty retailer of household storage items. In 2002 HCW entered a franchise agreement with Haviv allowing Haviv to operate a HCW store at Burwood (a Sydney suburb). That agreement granted to Haviv an exclusive franchise territory, being the area within a 5 km (or 5,000 metres) radius of the Burwood store.

In 2004 HCW granted a HCW franchise to someone else to operate a HCW store in the Rhodes shopping centre. The Rhodes store, indeed the whole Rhodes shopping centre, was between 4,837 and 4,843 metres from the HCW Burwood store; in round figures, only about 160 metres inside the exclusive territory granted to Haviv.

HCW admitted it breached the territory provision. Haviv claimed, and could show, to have suffered loss and damage by reason of HSW's breach. Haviv eventually ceased operating the Burwood store. HCW claimed it terminated the franchise agreement due to alleged breaches by Haviv, whereas Haviv denied this and claimed otherwise.

The court found that Haviv was entitled to claim damages. It considered different scenarios, or methodologies, of how those damages are to be calculated.

Importantly for the franchisee, the court found that the damages should take into account Haviv's loss of net profits for the period until the expiry of the last option for renewal period, in the year 2022.

In further assessing the damages, the court found that various discounts were to be applied to allow for various factors were to be taken into account, such as future refurbishment costs during the terms of the leases, rent increases and other "vicissitudes of life" - these are the unknown factors and risks that affect people during their lifetime generally.

This decision applied a principle that where there has been an actual loss, the law does not permit difficulties in calculating the loss to defeat the only remedy it provided for breach of contract, an award of damages.

The court adjourned the matter for the parties' experts to calculate Haviv's loss, or damages, based on the court's findings on how that loss is to be calculated.

Falling interest rates are claiming some home loan victims

If you're on a fixed rate home loan, make some enquiries before you commit to re-financing or discharging that loan. Remember, if you're selling a property, that usually means you'll be also discharging your current loan.

Despite all the gloomy financial news from the onset of the current global financial crisis, most Australian home borrowers, particularly those who've been repaying their loan for some time, at least were able to grasp the positive benefits of falling interest rates, significant reduced interest and/or repayments on their mortgages... or have they?

Believe it or not, there are financial victims from falling interest rates. If your home loan is a fixed interest rate loan for a fixed period, then beware!

Fixed interest rate mortgage loans are those where a borrower's mortgage interest rate and repayments are fixed for a set period. They make it possible for borrowers to avoid interest rate increases on their fixed rate home loan. Their popularity therefore tends to increase in times of rising interest rates. Depending on their circumstances and advice obtained at the time the loan was first obtained, these borrowers can set the fixed rates for periods from 12 months to 5 years or more.

Fixed interest rate mortgage loans are also a gamble. The sting is what happens in times of falling interest rates. If you're a borrower who wants to switch loans, or pay off a fixed rate home loan (usually when selling a property) watch out for those break costs.

Break costs is the additional amount, over the amount of the loan still outstanding and owning, you must repay to a lender. If you repay your home loan before the agreed fixed rate period ends and interest rates have gone down, the lender can only re-lend those funds it recovers from you at a lower rate than the rate they had you locked into. The break costs is the lender's claim for the financial loss they "suffer" from this.

There have been previous reports about a rise in complaints made about banks' break costs charges.

This doesn't surprise me. I too have noted similar complaints in the same period about the same issue from my own clients. Calculating break costs can be quite complex and involves many variables.

One client, aware of the issue a couple of months ago, enquired to his bank when deciding whether to sell his investment property. His bank quoted a break costs fee of $7,000.00. With that information he committed to a sale. As there have been at least 2 interest rate decreases since, his bank now advises this fee increased to over $18,000.00!! Furthermore, with his sale due to be completed in 2 weeks, his bank warned that this fee will increase again if there's a another fall in official interest rates.

If you're deciding whether to re-finance your current fixed rate home loan, whether to sell a property where you have a fixed rate loan, or even if you're thinking about switching to a fixed rate loan, the least you should consider doing before committing yourself includes:

• Ask! Ask you lender if break costs apply to you if you discharge that loan.
• Ask how those costs are calculated
• Ask if it is prepared to waive or at reduce those costs
• Will your lender agree to commit to quoted break costs remaining unchanged at least for a short period, regardless of interest rate movements?
• Consider and compare the real savings from taking out a new loan with lower interest rate, compared to the costs you'll incur for discharging your current loan.
  
• If you feel you've been charged break costs improperly, or have been misled, seek professional advice, or contact the Banking & Financial Services Ombudsman.
  

Deciding when to buy... tougher decision for First Home Buyers

With handouts by the federal and NSW state governments totalling up to $24,000.00, plus stamp duty concessions in NSW all available to first home buyers, making that decision on whether, or rather, when, to buy just gets tougher.

On the one hand, there's evidence of continuing falling home prices. So, do you wait until they fall further?

But, the additional government cash handouts are scheduled to end by 30 June 2009.

Does the Reserve Bank's hold on further reducing official interest rates (see this news item) send a positive signal for the economy? If so, could that result in home prices holding, or maybe even increase?

No, I don't have an answer, and my crystal ball is in for a major service, but John Kavanagh's article in the Money section of today's Sydney Morning Herald provides some helpful insights.

Proof of Identity Factsheet for NSW First Home Buyers

In last week's post I noted how the NSW Office of State Revenue (OSR) informed those of us on its mailing list of new Proof of Identity Requirements to be introduced for NSW First Home Plus (FHP) applicants and their spouses.

The OSR has now published this factsheet (it's a downloadable PDF document) listing the acceptable documents it requires. Note that 4 separate certified copies of documents, at least 1 from each of the 4 categories are required.

First Home Buyers, remember, from 20 April 2009, only the new FHP application form with the POI requirements will be accepted.

NSW First Home Buyers - New requirements for first home benefits applicants

The NSW Office of State Revenue (OSR) today issued a notification advising that from 2 March 2009, it is introducing Proof of Identity (POI) requirements for First Home Plus (FHP) applicants and their spouses (mainly exemptions from stamp duty on most contracts for first home buyers).

These POI requirements for FHP will be the same as those required for applicants in the First Home Owners Grant Scheme (these include documents from 4 categories - for example, birth certificates, citizenship certificate, current passport, Medicare card, evidence of applicant's residential address).

Knowing what new documents are required and when, can help a first home buyer smooth the whole process in applying for FHP benefits.

Whilst the current application form will be accepted by the OSR up to 19 April 2009, from 20 April 2009, only the new FHP application form with the POI requirements will be accepted.

Details, including guides and factsheets, are expected to be posted on the OSR's website soon.

First home buyers should be at least aware of these coming changes and ensure they're complied with. The last thing you want, as a first home buyer, is for a purchase to be delayed or compromised because the FHP benefit you're relying upon couldn't be processed and be ready for settlement due to incorrect or obsolete forms being completed and lodged.

Typically FHP application forms are processed by the first home buyer's solicitor or representative, whereas the application for the First Home Owner's Grant (FHOG) are processed by the buyer's lender or finance broker.

Here's a practical hint. As the POI documents are to be the same as those used in the FHOG application, as a first home buyer, it would be most helpful if you keep a duplicate set of certified copies of those same POI documents used in the FHOG application to give to your solicitors for use the in the FHP application.

Sold! Now tell the tenant

Investors sell residential properties too. Obviously many such properties are tenanted when they're sold. It therefore amazes me how often I see sellers of such properties not being reminded, by their agent or lawyer, to notify their tenant to leave the property before the time the sale is completed in cases where the fixed term part of the tenancy has expired. This can result in any number of problems for both sellers and buyers.

The lesson at the end of this post is a simple one. If you've just sold a residential tenanted property in NSW where: (a) the tenancy has expired; and (b) the buyer is entitled to vacant possession; then make sure, and make sure again and again, that early and proper formal notice is given to the tenant to leave the property by just before the sale is completed.

In NSW, most private residential tenancy leases (or more correctly, Residential Tenancy Agreements) are governed by the Residential Tenancies Act. The Act sets out the minimum notice that must be given by a landlord to a tenant to end the tenancy and for the tenant to leave the property.

If the fixed term part of the lease has expired, generally the landlord must give the tenant a minimum of 60 days' notice for the tenant to leave the property. BUT, if the landlord has sold the property AND entered a sale contract, this notice period by the landlord is reduced to 30 days.

If a seller has not given the correct notice to a tenant, then that tenant is well within their legal rights to not leave the property. This can cause numerous problems.

For example, if the sale contract provides that at completion the buyer is entitled to vacant possession of the sold property, the seller won't be able to do so if the tenant is still in the property. This leaves the seller exposed to a breach of contract claim by the buyer.

Not that most buyers are ready to pounce to make a claim, however think of a situation where the buyer has already not only made moving arrangements, but given notice to their landlord, and that landlord has new tenants moving into that property, so the buyers can't just simply stay for just a little while longer.

The seller too, may have committed to another purchase that was also to be completed on the same day, but the sale proceeds from their frustrated sale are required to complete that purchase, which now too must be delayed. Now, the original seller could be exposed to another breach of contract claim, this time by the seller to them!

You can see now the beginnings of a domino effect happening. I had two situations within about the last 12 months where seller clients had what turned into unpleasant experiences but which thankfully did not deteriorate into what could've been much more costly incidents. In both cases, the agent was both the selling agent and managed the tenancy on behalf of the seller/landlord.

In the first case, once his sale contract became unconditional, following my advice the seller instructed his real estate agent to give the tenant notice of the end of the tenancy and to leave the property before the sale was completed. 31 days before the contract completion date, my client telephoned me to confirm he had given those instructions to his agent and the agent assured him that he would hand deliver the notice to the tenant that day; my client was satisfied with that.

Now, fast forward to the week before the sale was due for completion. The agent advises that the tenant refuses to leave the property as he had nowhere to move into. My client then finds out the agent simply forgot to give the Notice to tenant three weeks beforehand! In trying to make up for his forgetfulness and neglect, the agent frantically tries very hard to help the tenant find alternate accommodation. The end result is that completion of the sale occurs almost 3 weeks late. Apart from the stress, frantic telephone calls, disagreements with the agent, my client also pays almost 3 weeks' additional interest on the loan he was meant to discharge with the sale proceeds.

In the other case, the completion date was more critical for my vendor client. After obtaining reassurances, she made firm commitments to apply all the sale proceeds due to her on the sale completion date. She asked the agent to provide the formal written notice to her tenant, she called back afterwards and the agent confirmed he personally delivered the formal notice. My client then telephoned me to confirm all this. In addition, the buyers fixed the completion date to coincide with the completion of their sale. The buyers' representative had notified my client and I that my client's buyers had to move out of their house to let their purchasers in on the same date.

Well, you've probably guessed by now... About a week before completion the buyer's representative informed me that the agent informed them completion had to be delayed as the tenant was refusing to move out; their client buyer was frantic. It was the first I heard about this, and my client hadn't heard anything either. What also puzzled, and then angered, my client was why was the agent discussing this with the buyer and not with her? The agent refused to discuss the issue with my client, and even hung up on her! Remember, this is my client's agent!

The agent refused to provide to my client (his customer) and to me a copy of the Notice he earlier assured he had "personally delivered" to the tenant. It turned out that no Notice was ever given to the tenant by the agent. With the assistance of the buyers' representative, we managed to encourage the agent to finally come to the party. What appears to have happened is that the agent found, and paid for, for temporary accommodation and other compensation to the tenant, in return for the tenant agreeing to move out early.

In both cases the tenant was not given the proper Notice. This caused a lot of unnecessary stress upon sellers, buyers and the tenants. Any stress the agents may have suffered was self-inflicted. Additional unnecessary costs were incurred. In the circumstances, neither tenant was being unreasonable, they just weren't properly notified. So what lessons, or precautions, can sellers draw from examples such as the above two? I would suggest:

• where the fixed term part of the tenancy has expired, ensure that your agent (the agent managing the tenancy) gives adequate, and at least 30 clear days' written notice - preferably more - to the tenant to leave the property before the time the sale is completed;
• check with the agent regularly to confirm compliance;
• again, check and confirm with the agent;
• ask the agent to give you a copy of the formal written notice he provided to the tenant - if this request is refused or excuses are made, you should be hearing alarm bells!;
• if you're able to, and you're comfortable with this, consider personally giving the notice to the tenant yourself - if required, ask your agent or solicitor to draft a form of notice for you;
• keep diary notes of conversations concerning these.

I'm sure there's probably other precautions a seller could take, but this list should at least provide some guide for a good start.

Displaying a Statement of Ethics

Just the other day I was in a meeting attended by various businesses people. Someone raised the subject of codes of ethics for various industries and professions. From that came a question to those present as to whether we followed such a code that applied to our respective industries and professions. All replied yes. The next question was whether such code was displayed at our places of business. Almost all present, including me, replied yes. For years I have been proudly displaying a Statement of Ethics in my office reception, where its visible to visitors.

The conversation then moved to whether these codes were on our respective websites. Well, until then it hadn't even crossed my mind, but I immediately realised there wasn't one my website. I've now rectified that by adding a page reproducing my profession's Statement of Ethics to which, as the preamble on the linked web page states, I aspire to achieve and maintain.