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Conveyancing, title, certificate of title,certificate, lost title, House, key

Lost Certificate of Title?  What to do when proof of ownership goes missing

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A certificate of title is your official record of land ownership.  It contains a description of the land, lists the property owner, and lists interests and rights that affect the land.  This document is essential to have if you’re planning to sell your property since your conveyancer cannot complete the sale without it.

Thanks to an increasingly electronic world, it’s easier than ever to keep tabs on your certificate of title.  Some Australian states have already mandated that titles be held electronically by banks, lawyers or conveyancers on behalf of their clients, however there are still many paper titles in existence.  If a paper title is lost or destroyed, you will need to make an application for a new one to the Land Titles Office.  Without a copy of the title, you will be unable to obtain a mortgage or sell the property.

Your application to the Land Titles Office must be lodged via PEXA, the online property exchange used Australia-wide.  Several requirements need to be met in order to lodge an application for a new certificate of title:

  • A statutory declaration completed by all registered proprietors listed on the title explaining why/how the title became misplaced or destroyed after Land Use Victoria issued it;
  • A statutory declaration from the party that the certificate of title was last issued to (this would typically be your conveyancer’s law firm or a bank), detailing how they disposed of the missing certificate of title;
  • A statutory declaration from any other party who had subsequent possession of the title after its issue (this might be your bank, law firm, yourself or another private party);
  • A title issue search document showing whom the title was last provided to;
  • A company search (if applicable)

All parties involved in a conveyancing transaction must also have their identity verified. When a conveyancer or lawyer represents a client, they are responsible for verifying the client’s identity.  If a conveyancer or lawyer does not represent a party to a conveyancing transaction, their identity will need to be verified by Australia Post.  Australia Post representatives will also need to bear witness to the signing of any conveyancing documents by an unrepresented party.

Applying for a new title can be a lengthy and complex process, especially if the title has been passed between hands numerous times.  Missing titles can mean lengthy delays for the sale of your property, so it’s absolutely vital that the application is correctly prepared and includes all necessary documents in order to minimise interruptions.  As a firm experienced  in property and conveyancing matters, Glaister Legal has extensive skill in making applications for the replacement of certificates of title.  Contact us today if you’re seeking assistance in making your application to the Land Titles Office and we’ll help simplify the process as much as possible. 

pexa; property; conveyancing

PEXA – What is it and where is my paper house title?

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What is PEXA?

PEXA (Property Exchange Australia Limited) is Victoria’s mandatory digital platform that facilitates lodgement and financial settlement through online transactions. The e-conveyancing system commenced in Victoria in 2015 and as of 1 October 2018, almost all property transactions are required to be lodged through the online program with very limited exceptions. PEXA provides a means of streamlining the property buying and selling process. By eliminating paperwork and reducing the room for error, wait times are shortened significantly.

What is the point of going electronic?

Transactions conducted through PEXA usually result in an Electronic Certificate of Title being issued to your bank or legal representative (unless a paper title is specifically requested). The major benefit is that this practically eliminates the possibility of fraudulent transactions and lost titles which require an arduous process to replace. By being held electronically by your bank (whist there is a mortgage) or your legal representative, your title is protected and in safe hands as it can obviously not be damaged by fire, floods or other factors that cause deterioration of a paper document. The reduced paperwork and time required to deal with the titles also means lower fees and legal costs for you.

Benefits for property buyers

PEXA’s online document checking provides buyers with the peace of mind that their settlement will happen in the timeframe originally planned for. It provides the guarantee that documents have been lodged almost immediately. In the paper world, by the time everything is signed and posted, it’s not uncommon for the process to occur days or even weeks after settlement, which significantly slows down the process of registering ownership.

Benefits for property sellers

PEXA has completely eliminated the need for paper forms to be filled out. Such forms can be finicky and are prone to human error. Things like spelling mistakes, illegibility of handwriting and other problems commonly arose in the days before online transactions were available. PEXA’s Key app allows sellers to track their settlements in real-time and to securely provide sensitive details such as bank account numbers using secure, encrypted technology.

What problems has PEXA solved?

PEXA reports on their website that before digital transactions became commonplace, 20% of paper settlements were delayed by an average of seven days and that 25% of those affected customers suffered at least some financial loss due to the delay .

Is my data safe with PEXA?

PEXA upholds itself to the standards required by industry specific legislation and regulations. The platform advises they will only ever share information that it is required to in order to remain compliant with its statutory and contractual obligations, including the relevant privacy laws. You can read more about their secure data management here.

How can Glaister Legal assist?

Buying and selling real estate can be daunting. Glaister Legal has a wealth of knowledge in the property and conveyancing space; it’s what we do, day in and day out. Victoria’s move to a digital platform was overall a welcome one, however we understand that many people may still feel overwhelmed by the added challenge of engaging with the technology. Either way, we’re more than happy to step you through the online process, or simply take the bulk of the project out of your hands, leaving you to celebrate your most recent sale or purchase.

Whether you’re buying or selling an investment or a residential property, Glaister Legal is here to help. Call us today on 03 9052 5101 to set up a no-obligation initial consult. Alternatively, we’re also available via the ‘Contact Us’ page.

testamentary capacity; Victoria; testator; assets; estate

Wills 101 – Can I sign a Will: What is testamentary capacity and what does it mean for you?

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In order to legally execute a valid Will, the person making the Will must be determined have testamentary capacity and be legally capable of doing so. ‘Legal capacity’ is not bound by one uniform meaning in Australian law.  In some contexts such as marriage or voting, a person needs to demonstrate that they understand the nature and significance of the transaction or activity.

In other circumstances in certain areas of the law such as wills, the standard is that the relevant person must be of “sound mind, memory and understanding”.  In this context your capacity to sign a Will is known as ‘testamentary capacity’. Contrary to popular opinion, whether or not someone has capacity is a legal test, not a medical one, although lawyers will frequently require clients to have a medical evaluation if there is a question of the client’s capacity.

Testamentary Capacity

The test that forms the foundation for determining testamentary capacity in Victoria was established in the very old British case of Banks v Goodfellow (1870).  The law has evolved since then to include a more nuanced assessment of the Will maker to facilitate deal with more complex capacity matters.  The basic test requires that the person making the Will satisfies the following criteria:

  1. The client understands the purpose and effect of a Will.

    It is vital that the person is aware that a Will is a legal document that will distribute their assets after their passing.  They should understand that the decisions outlined in the document are critical and will not be easily challenged and therefore should be made with a sufficient consideration.

  2. The client has a general understanding of the value of their estate.

    Whilst it is not necessary to have a meticulous knowledge of their assets, a reasonable estimate of the general proportions to be distributed should be able to be given by the testator.

  3. The client can comprehend who may have legal or other claim on their estate.

    There is a general assumption that there is a moral duty  by the Will maker to their  spouses and children.  Whilst it is not a legal requirement to include such parties as beneficiaries, the testator must be able to comprehend the consequences of excluding anyone who may feel ‘owed’ such a moral obligation.  Where the testator intends to leave out a potential beneficiary, the lawyer will take down detailed records of the exclusion and the reasons for the decision. These reasons may be included in the Will itself if there is a possibility of a challenge to the Will.

  4. The client, at the time of signing, was not suffering from a mind disorder.

    It is important to satisfactorily confirm that the testator’s capacity was not affected by a medical condition (i.e. dementia, other causes of memory loss, psychiatric or personality disorders or ‘other diseases of the mind’) which compromise their ability to make rational decisions about their estate at the time that they signed their will.

Can capacity be challenged?

Whilst in theory, a will should be an air-tight final say regarding a person’s final wishes, it is not unheard of for families to challenge a Will where there are capacity concerns for the testator.  If there are doubts about the testator’s capacity at the time of signing the Will, in Victoria, any person can lodge a probate caveat under section 58 of the Administrative and Probate Act 1958.  A caveat will prevent the making of a grant of probate, effectively freezing the assets until an outcome has been reached regarding the challenging of a Will by any person with legal standing to do so.

Have you made your will?

Glaister Legal is well-versed in writing wills for even the most complex circumstances and can help where there are possible issues regarding a person’s testamentary capacity.  Got questions?  Contact our office on 03 9052 5101 for a no obligation chat or to get started on your will today.

VCAT; matter; fees; Victoria

Taking your matter to VCAT? 5 things you’ll want to know:

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VCAT; matter; fees; Victoria

So you have a dispute with a neighbour; a supplier or a co-owner of a property and negotiating with them directly has reached a stand still. No one wants to waste their time or effort on going to Court, but what are the options available? Depending on the type of case, it may be possible to make an application to VCAT to resolve your issue more quickly and more cost effectively than going to Court. But which avenue is more appropriate?

Here are a list of 5 things that will help you make your decision:

1. What is VCAT?

The Victorian Civil and Administrative Tribunal is an authoritative body that aims to provide affordable and timely access to justice for Victorians.  It’s widely considered to be a less formal process that can be used for certain types of legal matters in Victoria. It can also potentially be the route taken before attempting to commence court proceedings, with the objective of being the cheaper and faster way of resolving civil and administrative legal cases.  Whilst you’ll typically be able to represent yourself at VCAT in certain matters, legal advice is always recommended, depending on your case.

2. What costs are involved?

You should be aware that VCAT expects each party to pay their own costs (including legal costs) unless there is a specific reason why it would be unfair to either party. The costs associated with filing an application with VCAT are significantly lower than filing in the Victorian Magistrate’s, County or Supreme Courts.  Amounts vary, and standard fees can be as little as $66 for an individual in a residential tenancy claim or in some other small claims of up to $3000.  For claims of $5,000,001 and over, application fees can climb to $1693.  Additional fees for things such as file inspection or issuing a summons to a witness also apply, but you can find more information about that by clicking here. 

3. How long will it take to resolve my matter?

The time it takes to reach an outcome through VCAT varies depending on the type of case you’re bringing.  Some simple residential tenancy disputes may be resolved in under four weeks whilst other more complex matters may require multiple days of hearings and the decision may be pushed back for months or even years.  Although a main objective of VCAT is to resolve matters in a more timely manner than would otherwise occur, as with most things in the world of 2020/2021, the COVID-19 pandemic has thrown a very heavy spanner into the works.  There is currently a backlog of rental bond and compensation cases, with an estimated wait of several months.  Upon filing an application, VCAT will provide you with an approximate wait time.

4. What does the average process look like?

Your case may vary from the standard procedure, but overall, the following is a good guide:

  • Submit application and pay fees 
  • VCAT determine if they have legal authority to assist in your matter 
  • You are assigned a reference number
  • VCAT send all parties a notice with next instructions
  • You prepare your documents and evidence and share with all other parties 
  • You and your representative attend a hearing/mediation as per the notice instructions 
  • An outcome is determined and delivered.

5. Can I dispute the outcome determined by VCAT?

If you believe that the VCAT member made an error in applying the law to your case then you can, within 28 days of the original order, begin an appeal process.  This is a far more complex procedure than going to VCAT and we recommend that you seek legal advice and/or representation should you choose to go down this path.

Glaister Legal is experienced in navigating a vast array of VCAT matters.  We understand that any legal process, even at the VCAT level, can seem daunting.  Contact us today to see how we can help achieve a favourable, timely and cost-wise outcome for you.
testamentary capacity; Victoria; testator; assets; estate

On the importance of Wills

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On the importance of Wills…

Everyone knows that having a properly drafted and legally valid Will is a necessary evil like private insurance or fat pants. You’d rather not think about the day that you need it, but when that day comes, you (or those closest to you) are glad you do. However, many of us find excuses to put off making a Will for another day; or worse decide that a DIY Will Kit is sufficient to properly safeguard your estate and wishes. They are not.

In Victoria, in the event that you pass away without having made a proper Will, you pass away being ‘intestate’. In this case, it is very difficult to deal with the assets of a deceased that are solely in their name. Certain items such as joint bank accounts can still be accessed, however the majority of assets can only be dealt with after someone makes an application to the Supreme Court to be granted a document called ‘Letters of Administration’. This allows them to act on behalf of the deceased similar to if they had proved the deceased’s Will, however there are limitations on what they can and cannot do and it can be a drawn-out and expensive process to obtain the Letters of Administration. Particularly if there is any dispute between family and friends as to who is best to represent you and your beneficiaries. If multiple applications are made i.e. former partners, children or other interested parties, it can result in litigation so that the Court can decide who to appoint, again causing delay and costing money that may be needed after you pass.

In order to prevent becoming ‘intestate’ and to prevent other common Estate matter issues, we recommend that you make or update your Will if:

  • You do not already have a properly drafted Will in place;
  • You have recently purchased or sold real estate or high value assets;
  • You have recently married or divorced (marriage cancels any Will made before it takes place);
  • You have had children and wish for them to be properly provided for;
  • You have had any other major change in circumstances that affects the value of your assets or how you would like them dealt with after you pass away.

In the event that you already have a Will, it is not as difficult as it would seem to update it. Rather than requiring a completely new Will to be drawn up, you can make a ‘Codicil’ which is usually a short one page document that changes or replaces the contents of your Will or adds new items to it.

Having a Will properly prepared by a lawyer is also vital to preventing disputes and disagreements and potentially costly litigation after you pass away.

If you or someone you know needs to have a Will or Codicil prepared, or if you would like further information, please contact our office for a free no obligation discussion about how we can best help you.

Keeping It In The Family: Why You Should Always Document A Loan

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Keeping It In The Family: Why You Should Always Document A Loan

Often times we are approached by parents or other family members who are in one of two situations relating to family loans.

In the first situation, they want to give a helping hand to a family member such as their children to give them a helping hand or to get into the property market (but they don’t want the stress or hassle of being a guarantor). The clients just want something simple and straight forward to document that it is a loan, not a gift, and usually want it done as quickly as possible as it may have been only thought of at the last minute. This is straight forward and something that can be sorted out quickly and be customised to a clients individual needs by our team.

In the second situation, clients come to us because ‘it’s already hit the fan’. They have lent money to a family member or friend on a verbal agreement, or worse still without setting out any terms from the outset. Then suddenly after a disagreement or argument, the borrower refuses to repay the amount claiming it was a ‘gift’, that there was no agreement for repayment or flat out denying that the loan existed in the first place. The client is therefore distressed, feels betrayed and is out of pocket potentially hundreds of thousands of dollars.

In this case, it is a matter of establishing that an oral agreement exists. An oral agreement is a binding contract, but unless there are third party witnesses to the agreement being made, it can come down to your word against theirs. Evidence that money passed from your bank account to theirs is not sufficient as it does not prove the intention. Was it a loan, or was it a gift?

An undocumented loan can also impact on a number of other areas of law such as:

  • property matters where it was intended that the loan be repaid on sale of a property;
  • family law proceedings where it may need to be determined whether or not the loan is to be taken into account as a liability during a breakup; or
  • an Estate where Executors may not have been told by the Deceased of the existence of the loan and therefore beneficiaries may also lose out. Or alternatively if a loan was intended to be waived on the passing of the lender but this is not recorded, the Executors may be legally forced to call up the loan to the detriment of the Borrower.

It is always important to treat any loan as an ‘at arms length transaction’ and have it properly recorded. This protects you and the borrower.

If you are considering making a loan to a family member or friend, please do not hesitate to contact our office to discuss how best to move forward.

Powers of Attorney: Who Decides When You Can’t

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Powers of Attorney: Who Decides When You Can’t

Powers of Attorney can mean many things to different people. At its most basic, a Power of Attorney allows someone to make decisions, sign documents or entering into agreements on behalf of another.

In Victoria, the main types of Powers of Attorney that one may need or otherwise come across are:

  • General Power of Attorney;
  • Enduring Power of Attorney (Financial and/or Personal Matters) ;
  • Appointment of Medical Decision Maker (formerly Power of Attorney (Medical Treatment);
  • Company Power of Attorney (which we will cover in depth at a later date).

General and Personal Matters:
General and Enduring Powers of Attorney are very similar in nature. Individuals can appoint another to make decisions, enter agreements such as Contracts of Sale, Mortgages and other legally binding documents or generally act as a representative of the individual.

The key difference between General and Enduring Powers of Attorney is that a general Power of Attorney will cease to be legally effective in the event that the person making the Power becomes ‘legally incapable’ to make decisions for themselves. Conversely, an Enduring Power of Attorney will continue to operate even if you lose mental capacity.

Appointment of Medical Decision Maker:
With the introduction of the Medical Treatment Planning and Decisions Act 2016, Medical Treatment Powers of Attorney have been replaced with an Appointment of Medical Decision Maker. This is largely the same as the former Power of Attorney (medical treatment), however there are a number of differences. Whereas it used to be possible for a number of medical power of attorney is to be appointed, the appointment of medical decision maker now requires that only a single primary decision-maker be appointed with a secondary decision-maker appointed in the event that the primary is unable to act or cannot be contacted.

Generally, we also recommend that anyone making an appointment of medical decision maker also complete an advanced care directive with their doctor. This will provide the decision-maker with some guidance on what may otherwise be traumatic circumstances.

We recommend that both an enduring power of attorney and an appointment of medical decision-maker be completed by clients over the age of 55, those who may be going into hospital or otherwise incapacitated. This provides a safety net to ensure that individuals affairs can be appropriately managed.

Please visit our Contact Us page or call our office on 03 9052 5101 to discuss the appropriate documents for you.