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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. 

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.