We Have Changed!

The Australian Real Estate Blog has moved, and is now part of the

Real Estate Information Centre

The Real Estate Information Centre is a website dedicated to real estate matters, and is designed to provide consumers and real estate professionals with access to a wide array of information and resources, via:

• The Australian Real Estate Blog


• Discussion Forums


• Real Estate Encyclopedia


• Downloadable documents and items of interest

You can also subscribe via RSS or update your existing RSS feed from the new site.

The Australian Real Estate will still be accessible through the URL: www.AustralianRealEstateBlog.com.au.

We Have Changed!

The Australian Real Estate Blog has moved, and is now part of the

Real Estate Information Centre

The Real Estate Information Centre is a website dedicated to real estate matters, and is designed to provide consumers and real estate professionals with access to a wide array of information and resources, via:

• The Australian Real Estate Blog


• Discussion Forums


• Real Estate Encyclopedia


• Downloadable documents and items of interest

You can also subscribe via RSS or update your existing RSS feed from the new site.

The Australian Real Estate will still be accessible through the URL: www.AustralianRealEstateBlog.com.au.

We Have Changed!

The Australian Real Estate Blog has moved, and is now part of the

Real Estate Information Centre

The Real Estate Information Centre is a website dedicated to real estate matters, and is designed to provide consumers and real estate professionals with access to a wide array of information and resources, via:

• The Australian Real Estate Blog


• Discussion Forums


• Real Estate Encyclopedia


• Downloadable documents and items of interest

You can also subscribe via RSS or update your existing RSS feed from the new site.

The Australian Real Estate will still be accessible through the URL: www.AustralianRealEstateBlog.com.au.

Estate Agents Declared To Be Conveyancers!

Read this posting at the

Real Estate Information Centre

The Real Estate Information Centre is a website dedicated to real estate matters, and is designed to provide consumers and real estate professionals with access to a wide array of information and resources, via:

• The Australian Real Estate Blog


• Discussion Forums


• Real Estate Encyclopedia


• Downloadable documents and items of interest

You can also subscribe via RSS or update your existing RSS feed from the new site.

The Australian Real Estate will still be accessible through the URL: www.AustralianRealEstateBlog.com.au.

We Have Moved!

The Australian Real Estate Blog has moved, and is now part of the

Real Estate Information Centre

The Real Estate Information Centre is a website dedicated to real estate matters, and is designed to provide consumers and real estate professionals with access to a wide array of information and resources, via:

• The Australian Real Estate Blog


• Discussion Forums


• Real Estate Encyclopedia


• Downloadable documents and items of interest

You can also subscribe via RSS or update your existing RSS feed from the new site.

The Australian Real Estate will still be accessible through the URL: www.AustralianRealEstateBlog.com.au.

Landlords' Legal Letter-Writers Beware

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

Chief Justice of Queensland Paul de Jersey has warned my State’s lawyers, when they write letters of demand on behalf of clients, to be careful before resorting to any “even arguably threatening conduct”. His warning came recently in the course of the dismissal of a disciplinary action taken against Gold Coast solicitor Michael David Sing.

This application was made by the Legal Services Commissioner to Queensland’s Legal Practice Tribunal. No order was made for costs, although Mr Sing was represented by a silk and a junior briefed by Brisbane solicitors Brian Bartley & Associates.

In April 2006 Mr Sing sent a letter of demand on his law firm’s letterhead to Gold Coast resident Mr Andrew Habberfield whose company leased a property from Mr Sing and his solicitor wife, Susan Sing. Cheques for the bond money and two rent payments had previously been dishonoured.

Mr Sing’s letter not only expected full payment of rent as it came due but also enclosed a copy of a letter which would be sent to the Southport Police Station if payments were not made, or if there was any damage to the property apart from wear and tear. The draft letter to the Police requested an investigation of the dishonouring of the bond and rent cheques.

Continue reading "Landlords' Legal Letter-Writers Beware"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Contracts - Real Estate Booby Traps!

by Peter Mericka B.A., LL.B Real Estate Lawyer and
Qualified Practising Conveyancer
Victoria
Lawyers Real Estate

Most real estate consumers are aware that real estate contracts are biased heavily in favour of the vendor, and contain a minefield of terms and conditions. But very few realise that some contracts contain "booby traps" that can do serious damage to BOTH parties!

First, we refer readers to our last posting about auction bullying. The auction is an easy means by which unfair and unconscionable special conditions can be concealed from the purchaser.

Of course, auction contracts are not the only ones to contain booby traps - they are found in real estate contracts of all kinds.

The unsuspecting purchaser, having signed the contract (with the assistance of the smiling estate agent), eventually delivers a copy to give to his or her lawyer. It is at this point that the full impact of the terms and conditions contained in the contract hits the purchaser like an exploding booby trap.

So, what kind of booby traps can a purchaser expect to find in a real estate contract? Lets analyse an example and see just how dangerous they can be.

Continue reading "Contracts - Real Estate Booby Traps!"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Auction Bullying

by Peter Mericka B.A., LL.B Real Estate Lawyer and
Qualified Practising Conveyancer
Victoria
Lawyers Real Estate

“Auction turns to scuffle” is the title of an article by David Nankervis of the Adelaide Sunday Mail (p.36).

The article describes how police were called to a house auction after a clash erupted between a bidder and the auctioneer.

The bidder, Russell Mallory, was acting on behalf of his parents and wanted clear instructions as to how the purchaser was to be named in the contract. But while Mr Mallory was discussing the matter with his parents over the telephone, the auctioneer, Mr Richard Thwaites of LJ Hooker Kensington, decided that the property would be sold to the second highest bidder whose offer was $1,000 less.

The estate agent led the second purchasers into the house, and Mr Mallory attempted to enter the house as well.

“But the auctioneer closed the timber front door on my arm and leg, which caused a bit of pain, and when I pulled away he locked the door in my face,”

"Thwaites re-opened the bidding while I was on the phone with my parents, who said I could sign as the purchaser if that was what the auctioneer demanded."

According to the auctioneer, Mr Mallory could have signed the contract "and/or nominee".

"...he refused to sign and I said I would offer the property for sale."

“The new owners had the right to sign a contract in privacy and I was ensuring that they did.”

It has become commonplace for estate agents to exert control over all parties at an auction. In recent times we have seen situations where estate agents have used the auction as a means of bullying purchases into accepting unfair sale terms.

Continue reading "Auction Bullying"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Beware Who Warns You Of DIY Dangers

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

My blood pressure went through the roof again a while back. Needless to say, I had spotted another disturbing article in The Courier Mail’s weekend real estate supplement, this time purportedly warning consumers about the “dangers of buying and selling real estate”. The title really summed it up: “DIY real estate can be risky business”. Oh boy!

Interestingly, there was a headshot and name of the author, Ross Thompson, but made no mention of who he was or of his qualifications.

The Courier Mail’s website, by the way, seems to have no record of Mr Thompson among its editors and reporters. His article appeared on a page captioned “MarketMovements”, but with no hint that it was anything other than a genuine piece of serous reporting.

The truth came out when I accessed New Corporation’s Newstext website to download the article. It was tagged this way at the end:

“Column: Market Movements
Section: REAL ESTATE
Type: Advertisement”

Yes, this report was actually a cunningly disguised (and paid?) advertisement. For whom it was run should become pretty clear as you read on.

Continue reading "Beware Who Warns You Of DIY Dangers"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Early Release (Or Stealing?) Of Commission

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au


A solicitor mate of mine, Chris Bridge, recently had two celebrations: thirty years of legal practice and his first (possible) win with Queensland’s Office of Fair Trading.

Queensland has no statutory equivalent to Section 27 of Victoria’s Sale of Land Act (for early deposit releases) as mentioned in Peter Mericka’s article "Early Release of Deposit". Here it is quite uncommon for the parties to a contract to agree to an early deposit release, but it is not illegal.

There is no Queensland law permitting agents to take sales commissions from deposits held in their trust accounts before settlement even if both parties authorise it. Honest agents wait till their sales are settled. The occasional dishonest agent will steal money from the trust account, but that is another story.

Alarm bells rang when Chris Bridge noticed the following special condition in a contract which arrived all signed sealed and delivered on his suburban legal office desk:

“The client agrees that as and from the date upon which the contract of sale becomes unconditional, the agent shall immediately be entitled to payment of commission…and such commission shall be paid from the deposit monies AND FURTHER the client directs the stakeholder to release the commission to the Agent immediately the Contract of Sale becomes unconditional.”

Continue reading "Early Release (Or Stealing?) Of Commission"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Early Release of Deposit

by Peter Mericka B.A., LL.B Real Estate Lawyer and
Qualified Practising Conveyancer
Victoria
Lawyers Real Estate

Enzo Raimondo, CEO of the Real Estate Institute of Victoria (R.E.I.V.) regularly provides consumers with his understanding of the law affecting the sale of real estate. Unfortunately, Enzo's explanation of these laws is often quite limited, and his offering in the Domain section of The Age Saturday 28 April 2007, is a case in point.

In his article Enzo suggests that a person who sells one property can use the deposit paid by the purchaser of that property to pay the deposit on the purchase of another by arranging for early deposit release. Enzo presents this as something of a helpful hint for vendors, but doesn't go into detail.

As a practitioner in property law, I find Enzo's article both mischievous and misleading.

As Enzo acknowledges in his article,

"...if an early release is agreed to, the selling agent may deduct commission and expenses from the deposit when the release occurs."

This is a very important point, because in my experience estate agents will always put their own interests ahead of those of the vendor when the deposit is needed for the purchase of another property.

Continue reading "Early Release of Deposit"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Gold Coast Property Lawyer In Deep Trouble

by Tim O’Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au


Gold Coast solicitor Michael Yarwood, who once protested that he was a Rotarian and a church-goer, has been struck off as a Queensland lawyer.

This month the Queensland Law Society resolved to cancel his practising certificate following a probe into his discontinued practice and trust account.

Yarwood also reportedly faces possible criminal charges after the Law Society referred him to law enforcement agencies over what it said was a `serious irregularity' in trust monies allegedly received by his practice.
A Law Society investigation will focus on the Yarwood Legal Group, the former law practice which Yarwood closed last December.

The Society also appointed a panel of accountants to wind up the Group.

In a note posted on the QLS website, the Law Society Council said it had passed several resolutions regarding Yarwood's former practice.

Continue reading "Gold Coast Property Lawyer In Deep Trouble"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

The Gospel According To Nigel

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

A New South Wales client of mine was interested in investing in New Zealand property through a buyers’ advocate. He sought my advice on the appointment form of a company he had come across.

I had some immediate doubts, and warned my client off.

Next day Nigel, the company’s director, audaciously phoned me to ask what my concerns were. I in turn asked for Nigel’s qualifications, what real estate licences he held and details of the service he provided.

Read the Gospel according to Nigel...

Continue reading "The Gospel According To Nigel"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Why Queensland Estate Agents Don't Give Discounts

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

Will the apparent upturn in Queensland housing prices mean discounted real estate commission rates? Will agents charge sellers less as homes are reportedly sold within days, if not hours, of going on the market? The answer is no – to both questions.

Residential agents’ commission rates, unlike property prices, have never been affected by the so-called “market”. Agents will not offer discounts to sellers if sales prove easier, or occur faster.

Whatever the climate, agents occasionally make quick, easy and non-discounted commissions when properties are sold to next-door or nearby neighbours. It’s the same result if an agent sells a rental property to the owner’s tenant. For this reason, before putting properties on the market with an agent, sellers should always talk to their neighbours or tenants.

Solicitors’ fees for preparing private sales contracts are miniscule compared with agents’ commissions.

Continue reading "Why Queensland Estate Agents Don't Give Discounts"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Winning Auction Bidders Beware

(NOT APPLICABLE IN VICTORIA OR A.C.T.)

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

Peter Mericka was correct when he stated in Auctions Exposed As Non-Binding that, as every agent, auctioneer, solicitor and conveyancer knows, a contract for the sale of real estate must be in writing and signed before it can be enforced.

More particularly such a contract will be enforceable at law even if it is only “evidenced” in writing. This requirement flows from Section 4 of the Statute of Frauds 1677, an Act of the English Parliament, which has been incorporated more or less in legislation across Australia in these terms:

“No action may be brought upon any contract for the sale…of land…unless the contract…or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.”

My learned colleague and fellow real estate cage-rattler was also correct, as far as Victoria (and the Australian Capital Territory) is concerned, when he agreed with the reported remarks of the Real estate Institute of Victoria that little could be done legally by the vendor if a winning bidder did not sign a sale contract after an auction.

The position is different elsewhere in Australia...

Continue reading "Winning Auction Bidders Beware"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Auctions Exposed As Non-Binding!

by Peter Mericka B.A., LL.B Real Estate Lawyer and
Qualified Practising Conveyancer
Victoria
Lawyers Real Estate

When is an auction not an auction? When it's a real estate auction. This was demonstrated recently when the highest bidder for a $2.7 million property refused to buy it.

According to Melbourne's Sunday Herald Sun newspaper:

"...the sale failed to go ahead, despite the winning bidder making several bids to buy the property in front of a crowd of about 45 people.

...the Real Estate Institute of Victoria agreed there was little estate agents could do if a winning bidder did not sign a sale contract after an auction."

Estate agents have always known that real estate auctions are not true auctions. But they still choose to trick consumers, vendors and purchasers alike, into believing that properties are actually "sold under the hammer".

We believe that estate agents should be required by law to disclose to all consumers the fact that a real estate auction does not result in a sale. Perhaps the term "auction" should be replaced with a more accurate descriptive term such as "purchaser selection process".

At the very least, consumers should be informed that the process is not binding on either party, and that the vendor and purchaser are both free to walk away without signing a contract.

Can there be a true real estate auction, conducted ethically and legally? Of course; but estate agents will always prefer the commission-generating fake auction.

Let's examine this a little further.

Continue reading "Auctions Exposed As Non-Binding!"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Bidding Wars Between Would-Be Tenants

by Tim O'Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

Queensland’s Courier Mail newspaper has reported that tenancy advocacy groups are warning that bidding wars between desparate tenants are causing havoc in the Queensland rental market. This fiercely competitive market, the groups claim, has been hit hard by low vacancy rates and high property prices.

Queensland Shelter's Adrian Pisarski told The Courier’s housing reporter, Amanda Horswill, that a shortage of properties was forcing would-be tenants to compete.

There were, he said, more and more open houses and “auctions for rental properties". Mr Pisarski explained that, just like in regular property auctions, agents were opening houses for prospective tenants to inspect before they put in their private bids or applications to the agents. As a result, he said, some families with young children were forced to live in tents and caravans.

Continue reading "Bidding Wars Between Would-Be Tenants"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Enlightenment On Illegal Structures

by Tim O’Dwyer M.A., LL.B
Queensland Solicitor & Consumer Advocate
watchdog@argonautlegal.com.au

At last a penny has dropped in Queensland on the perennial issue of illegal structures.

One enlightened local government authority has produced a brochure to alert residential sellers and buyers alike to the problems of illegal garages, carports, roofed pergolas and patios, decks, garage conversions, downstairs toilets, spas and pools – all too often added without requisite council approvals or inspections, but invariably not disclosed by sellers or real estate agents to unsuspecting buyers.

Many Sunshine State agents, of course, wouldn’t know an illegal structure if it fell on them.

Continue reading "Enlightenment On Illegal Structures"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

Auctioneer Booed!

by Peter Mericka B.A., LL.B Real Estate Lawyer and
Qualified Practising Conveyancer
Victoria
Lawyers Real Estate


Consumers are starting to wake up! Finally the market has turned on an auctioneer, and refused to be manipulated.

Although it was tucked away on page 5 of yesterday's Sunday Herald-Sun newspaper (Sunday Herald-Sun p.5 4 March, 2007), this small article, titled "Auction booed", indicates that consumers are growing tired of the artificial manipulation of the the real estate market.

The article describes how a crowd of approximately 200 people booed Biggin & Scott Real Estate Director/Auctioneer Guy St. Leger when he attempted to dictate terms.

According to the article,

"The weatherboard house at 6 Errol St was on the market at $1.1 million. Shortly before it reached its sale price of $1.6 million, one bidder offered a $1000 rise. Auctioneer Guy St Leger of Biggin & Scott refused to accept the bid, saying he would take only $5000 increments. 'The entire crowd of 200 people booed him,' an onlooker said."

The article concludes,

"In the end Mr. St Leger felt obliged to accept the $1,000 bid."

We have long argued that real estate auctions are scams, and that they are regularly used by estate agents as means to manipulate and condition. Dummy bidding and improper interference with the bidding process are just two examples of improper conduct associated with auctions.

In some cases auctions are used as a vehicle for outright criminal deception.

While it is unlikely that a criminal offence has been committed in this case, it is misleading and deceptive for a person who has a degree of control over a sale to assert that he is somehow entitled to require that indivuduals increase their bids.

Let's examine the way estate agents and auctioneers use auctions as a tool of manipulation.

Continue reading "Auctioneer Booed!"

Note: For further information about real estate or conveyancing issues visit Lawyers Conveyancing

LEAVING HOME, LEAVING COUNTRY?

Channel Seven are on the hunt for Australians who are packing up and leaving for distant shores in the coming months.

The second series of The Real Seachange hopes to follow families, couples or individuals as they leave one of Australia's metropolitan centres behind in search of a new challenge in a new country.

These stories come about from word of mouth, most notably through real estate agents or business brokers who selling the homes and businesses of those who are leaving the country.

I would be very interested to hear of anyone who could put me in touch with people who are planning to leave Australia between now and the end of June, please feel free to contact me on mralph@seven.com.au or call me on 02 8905 3269.

Matt Ralph
Associate Producer TV Production - The Real Seachange