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					1        WHAT IS CONVEYANCING?

1.1      OVERVIEW

1.2      COSTS AND EXPENSES

2        WHAT ARE THE DIFFERENT TITLE SYSTEMS FOR PROPERTY?

2.1      OLD SYSTEM

2.2      TORRENS TITLE

2.3      HOME UNIT OWNERSHIP

           2.3.1           Company Title

           2.3.2           Strata Title

           2.3.3           Community Title

3        HOW DO I LIST MY PROPERTY FOR SALE?

3.1      PRIVATE TREATY

           3.1.1.1         Exclusive Agency Agreement

           3.1.1.2         Sole Agency Agreement

           3.1.1.3         Auction Agency Agreement

           3.1.1.4         General Listing Authority

3.2      AUCTION

4        THE CONTRACT

4.1      OVERVIEW

4.2      WHAT ARE THE WAYS TO OWN PROPERTY?

           4.2.1           Co-ownership

           4.2.2           Joint Tenants

           4.2.3           Tenants in Common

4.3      WHAT OTHER THINGS SHOULD BE IN THE CONTRACT?

           4.3.1            Disclosure Requirements

           4.3.2            Disclosure Documents that must be attached to the Contract

           4.3.3            The Warranties (essential promises)

           4.3.4            Implied Terms




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4.4      HOW DO I ENTER INTO A CONTRACT?

           4.4.1            Public Auction

           4.4.2            Private Treaty Contracts

           4.4.3            Quality Inspections

           4.4.4            Finance

4.5      WHAT HAPPENS BETWEEN EXCHANGE OF CONTRACTS AND SETTLEMENT?

           4.5.1            Testing the Contract

           4.5.2            Insurance

           4.5.3            Survey

           4.5.4            Stamp Duty (State Government Tax)

4.6      WHAT IS COMPLETION (SETTLEMENT)?

5        STRATA SCHEMES

5.1      THE LEGISLATION

           5.1.1            The Strata Titles Act, 1973

           5.1.2            The Strata Schemes Management Act, 1996

5.2      WHAT IS A STRATA SCHEME?

5.3      WHAT ARE BY-LAWS?

5.4      YOUR LOT

5.5      THE COMMON PROPERTY

5.6      YOUR UNIT ENTITLEMENT

5.7      RUNNING A STRATA SCHEME

         5.7.1              The Initial Period

         5.7.2              The Role of the Owners Corporation

         5.7.3              Executive Committee of the Owners Corporation

         5.7.4              Meetings

         5.7.5              Managing Agents

         5.7.6              The Strata Roll

         5.7.7              Strata Levies

         5.7.8              Insurances



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         5.7.9              Animals

         5.7.10             Disputes

5.8      OWNING A STRATA SCHEME UNIT

         5.8.1              Buying

         5.8.2              Responsibilities of Residents

         5.8.3              Rates and Taxes

         5.8.4              Renting a Strata Scheme Unit

6        RATES AND TAXES

6.1      COUNCIL RATES

6.2      HOW IS LAND VALUED?

6.3      ANNUAL AND OTHER CHARGES?

6.4      WHAT LAND IS RATEABLE?

6.5      ARE THERE ANY CONCESSIONS?

6.6      RATE CERTIFICATES

6.7      WHAT HAPPENS IF I DO NOT PAY THE RATES?

7        COMMERCIAL LEASES

7.1      OVERVIEW

7.2      ORAL LEASES

7.3      WRITTEN LEASES

7.4      THE RETAIL LEASES ACT, 1994

7.5      THE TRUE COST OF RENTAL

7.6      THINGS TO CONSIDER BEFORE ENTERING INTO A LEASE

7.7      OPTIONS

           7.7.1              Exercise of Options by Tenants

           7.7.2              Option Exercise in Case of Breach

7.8      ASSIGNMENT OF THE LEASE

7.9      ENDING THE LEASE

7.10     CHARGES ASSOCIATED WITH COMMERCIAL LEASES

         7.10.1                Fees



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         7.10.2                Stamp Duty (State Government Tax)

         7.10.3                Registration Fees

         7.10.4                Miscellaneous Charges




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1.       WHAT IS CONVEYANCING?

1.1      OVERVIEW

         “Conveyancing” is the legal term for transferring legal ownership of title from one owner to
         another. It has been traditionally carried out by solicitors, but since 1993 can be carried out by
         licensed conveyancers.

         Lawyers and licensed conveyancers are covered by professional indemnity insurance policies.
         A buyer losing money because of their lawyer‟s or conveyancer‟s negligence is protected to the
         extent that these professionals are compulsorily insured. In December 1990 solicitors adopted a
         code of conveyancing practice for residential conveyancing.

         Because legal fees are deregulated in New South Wales and there is fee competition, the
         professional fees for buying or selling property are not that high. Most solicitors and
         conveyancers when engaged by a client will agree on a fixed fee for professional services and
         give an estimate of out-of-pocket expenses for the job.

1.2      COSTS AND EXPENSES

         Apart from the purchase price of the home, buyers will have to pay extras, such as government
         stamp duties on the purchase price and on any mortgage. The stamp duty – a State Tax – is a
         major cost. Other costs include:

                  charges made by lending institutions for establishing a mortgage, valuation, etc and in
                   some cases, the lender‟s legal fees;

                  house insurance (usually replacement and reinstatement policy);

                  government registration fees at the Land and Property Information Office;

                  legal and search fees for conveyance;

                  adjustment of rates, water rates, strata levies, etc;

                  electricity and gas connection fees and removalist‟s charges;

                  fees for a survey report and building certificate;

                   quality inspections such as strata inspection, building inspection, pest inspection
                    certificates.

2.       WHAT ARE THE DIFFERENT TITLE SYSTEMS FOR PROPERTY?

2.1      OLD SYSTEM

           Old System title was introduced to New South Wales when it was first settled by the British
           and has its roots in Old English Land Law. Under Old System title, after the original Crown
           Grant of land, title is transferred to each successive owner by a deed (usually a conveyance or
           mortgage). Each document must be properly signed and attested, stamped, and contain a
           description of the land. All these documents form the chain of title. If one document is
           ineffective, there will be a defect in title. An Old System title is only as strong as the weakest
           document in the chain of title. Unlike the Torrens title system that depends on registration in




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           the Land and Property Information Office, an owner of Old System land does not hold a title
           deed to that land – merely a series of documents.

           Parliament has provided that a lawyer or conveyancer need only search back to a good root of
           title (that is, starting point) that is at least 30 years old. In practice, to find a good root of title
           often means going back well beyond 30 years. Old System conveyancing is complex, time
           consuming and expensive and it is wise to have a lawyer carry out these conveyances.

2.2      TORRENS TITLE

           The vast majority of residential properties in New South are Torrens title. Torrens title land
           comes under the Real Property Act 1900. The State guarantees the title to be a good one. Once
           a buyer registers a transfer at the Land and Property Information Office, they will receive a
           perfect title which is said to be “indefeasible”. Torrens title searching and conveyancing is far
           simpler than Old System and is therefore less expensive. While Old System title land is a less
           attractive purchase than land under the Real Property Act, it should not deter buyers – provided
           they are prepared to pay the higher legal costs. The Old System is automatically converted to
           “qualified” Torrens title when a change of ownership occurs. This conversion occurs without
           charge to either the buyer or the seller.

           The Real Property (Conversion of Titles) Act allows Old System title to be converted to
           Torrens title. This Act provides for the issue of a certificate of title, with the qualification that
           the title is not State guaranteed. This qualification is removed and the title becomes absolute
           6 years after the certificate has been issued, if there has been a sale to a subsequent buyer.
           Otherwise, the title becomes absolute after 12 years.

2.3      HOME UNIT OWNERSHIP

           Unit ownership is commonly held under company title or strata title. Strata title is by far the
           most common.

         2.3.1     Company Title

                   Company title is the older form of unit ownership. Under company title, the land and
                   buildings are owned by a company. The company‟s shareholding structure is organised
                   so that ownership of a stated group of shares entitles the shareholder to exclusive
                   possession of a part of the building (example, a flat and perhaps a garage).

                   The flat owner does not own any land, only shares in the company. Instead of holding a
                   title deed, they own a share certificate as evidence of ownership. An owner‟s right to
                   sell or transfer the shareholding will be subject to company approval which can be
                   withheld. This can be an advantage to existing shareholders, as they can have some say
                   in who their neighbours will be. It could, however, disadvantage prospective buyers
                   who find that existing shareholders are determined to keep them out.

                   Rules governing the occupation of and the right to lease the flat may be made by a
                   majority vote of the company‟s shareholders. It may be difficult to borrow money to
                   buy a company title unit. Lending institutions have been reluctant to lend money for
                   share purchase, as distinct from a mortgage of real estate (although some banks have
                   recently been more approachable). Because financing has been difficult in the past,
                   company title units have traditionally been harder to sell even though they are generally
                   cheaper than strata title units.




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         2.3.2     Strata Title

                   The more popular sort of unit (or townhouse) ownership is under the Strata Schemes
                   Management Act 1996. According to English property law, an owner of land owns the
                   airspace above it to infinity. The Strata Schemes Management Act makes possible the
                   horizontal subdivision of the airspace above the surface of the land. Once a plan of
                   subdivision of this nature, called a strata plan, is registered at the Land & Property
                   Information Office, separate titles for each lot in the plan are created. Each lot owner
                   can sell, mortgage, lease or otherwise deal with it as an ordinary owner of land. Each lot
                   has its own separate title guaranteed by the State to be good title.

                   An executive committee representing the owners corporation (made up of all unit
                   owners) is set up to manage the common affairs of the lot owners. Each owner must
                   contribute to a “sinking fund” to meet capital expenditures (painting buildings, replacing
                   fixtures) and an administrative fund to pay for recurrent ongoing common expenses,
                   such as insurance, cleaning, maintenance to common areas of the building (examples
                   stairwells and driveways). Prospective buyers of strata units should check the executive
                   committee‟s minutes for evidence of any special levies that may be levied for major
                   repairs. Unsuspecting purchasers may otherwise be in for a nasty surprise. A buyer
                   should obtain the owners corporation‟s section 109 certificate as to current and
                   outstanding levies.

                   The Strata Schemes Management Act also makes provision for the management of
                   owners corporations and for the resolution of dispute.

         2.3.3     Community Title

                   This is not common and is a form of ownership that is similar in some respects to strata
                   title. It falls under the Community Titles Legislation enacted in 1989, and is designed to
                   bridge the gap between traditional land subdivision (ground surface) and strata
                   subdivisions (airspace). Essentially, the common property concept can now be
                   incorporated into a land subdivision, and can include amenities, such as a children‟s
                   playground or a tennis court.

                   Community title also allows for staged or progressive development of an area of land. If
                   a development is staged, a number of associations are formed to administer the
                   developed areas of the project as these occur. The highest here is the “Community
                   Association”, which is the umbrella association (to which all others belong, on a
                   proportional lot entitlement basis).       The lowest here is the “Neighbourhood
                   Association”, which is usually established when a developer is ready to re-subdivide and
                   sell lots. The Neighbourhood Association usually relates to that area set aside for re-
                   subdivision. Each lot owner also becomes a proportional member of the Community
                   Association, replacing the previous owner of the re-subdivided area.

                   A “Precinct Association” may also be formed, as the middle tier between the
                   Community and Neighbour Associations, if the development is a very large one, and the
                   developer wants to register a precinct plan, creating development lots and precinct
                   (common) property. It operates in a similar way to a Neighbourhood Association, but
                   on a larger scale. The object of these associations is to ensure that owners‟ interests are
                   represented at all stages of the development.




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                   Contracts for the purchase of Community Title property from a developer should contain
                   (along with other disclosure requirements) details of:

                            the development and building approvals, including the development contract and
                             management statement and any document disclosing a change to either of them;

                            amenities to be provided (example, a tennis court, swimming pool or common
                             barbecue area);

                            the basic architectural design and landscaping of the development;

                            any theme upon which the development is based (example, a retirement village,
                             or a sporting theme); the legislation allows themes to be established and
                             preserved;

                            a diagram or artist‟s impression depicting the intended appearance of the
                             development when completed;

                            details of the building zone, hours of work, means of access and rights of storage
                             of building equipment (this is important if the buyer intends moving in before
                             the development is fully completed).

                   This type of development is an extremely attractive one to developers because it allows
                   whole projects to be completed in stages. Therefore, completion of it depends, to a great
                   extent, on the developer‟s cashflow, and the planned 18 hole golf course may not
                   materialise if things go wrong. Hopefully, local councils will provide adequate
                   protective measures by imposing reasonably stringent conditions of approval.

3.       HOW DO I LIST MY PROPERTY FOR SALE?

3.1      PRIVATE TREATY

         Prior to advertising a property for sale or inviting any offers to purchase, an agent must have
         available a draft Contract for Sale of Land which complies with all the relevant legislation.

         By the provisions of the Auctioneers & Agents Act 1948 prior to listing the property, the agent
         must be authorised in writing to do so. This authorisation can take several different forms:

         3.1.1     Exclusive Agency Agreement

                   This basically means that the vendors are using only the agent named in the agreement
                   to sell the property. If the property is sold by another agent or even by the vendors then
                   the agent will usually still be entitled to the authorised sales commission.

         3.1.2     Sole Agency Agreement

                   The same provisions apply as above. However, the vendors are entitled to sell the
                   property independently of the agent without being liable for commission.

         3.1.3     Auction Agency Agreement

                   Where the property is to be submitted to auction, a separate agreement is usually
                   executed. It includes some exclusive agency period after the auction date but the length
                   of this period is negotiable.




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         3.1.4     General Listing Authority

                   This merely authorises the agent to list the property and if sold by that agent it entitles
                   that agent to commission. There are also various forms of multiple listing authority,
                   example multi-list and various franchises‟ own authorities.

                   The listing authorities usually itemise the scale of the agent‟s commission and contain
                   various other details, example title particulars, special conditions attaching to the sale,
                   liability for advertising expenses etc.

                   Also they usually contain an irrevocable authority that after exchange the agent will hold
                   the deposit moneys in the agent‟s trust account. It is important that this is amended
                   before execution if for instance the vendor‟s solicitors are to invest the deposit or the
                   vendors need the deposit released.

3.2      WHAT ABOUT AN AUCTION?

         Basically an auction contract is drawn the same way as any other contract. It should be sent to
         the agent as soon as possible after receiving instructions so that it is available for prospective
         bidders to examine prior to the auction. The contract of course must comply with all the usual
         requirements.

         Some practitioners obtain additional disclosure documents for auction contracts for example –
         pest reports, building reports, fresh surveys etc to make it as easy as possible for prospective
         bidders.

4.       THE CONTRACT

4.1      OVERVIEW

         The contract is the most important part of the transaction. An agreement for the sale of land
         must be in writing with a note or memorandum signed by the person (or their agent). It should
         contain „the four Ps‟- price, parties, property and promise.

         The most commonly used form of contract is one published by the Real Estate Institute and the
         Law Society. This contract is designed to be even-handed between sellers and buyers. Page one
         of the contract is a particulars page that identifies the selling agent, if any, the parties (buyer and
         seller), the price, the deposit, the full description by address, the nature of improvements and the
         particulars of title. The furnishings and chattels sold should also be listed: Buyers should take
         care that any improvements to the property are described and that anything excluded from the
         sale is also clearly shown.

         A settlement time (normally 42 days) is also provided in the contract. On completion of the
         particulars page and incorporation of some essential documents the contract is ready to be used.
         Home buyers should check to see there have been no changes to the standard provisions. These
         routinely call for vacant possession and adjustment of rates on settlement. A buyer should be
         aware of and negotiate changes to any special conditions which provide:

                  „time of the essence‟ conditions

                  release of deposit to the seller before settlement rather than its retention in trust or
                   investment

                  for payment of interest for delays in settlement




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                  clauses favouring the seller and thus altering the „even-handed‟ contract

         Special conditions included in a draft contract available at the point of sale do not have to be
         accepted. Buyers should note carefully whether there have been any changes by deletion or
         inter-lined addition to the printed form of contract.

         Every contract of sale of residential land must include a statement in a prescribed form about the
         cooling off period. If the statement is not included, the buyer may withdraw at any time before
         the sale is finalised.

4.2      WHAT ARE THE WAYS TO OWN PROPERTY?

         4.2.1     Co-ownership

                   When more than one person is buying a property, they may buy as joint tenants or
                   tenants in common. The choice as to co-ownership should be stated in the contract.

         4.2.2     Joint Tenants

                   Joint tenancy is favoured mostly by people in a close relationship. When the coowners
                   are joint tenants, they are all entitled to ownership and possession of the whole property,
                   but when one dies, the survivor(s) automatically inherit the deceased‟s share of the
                   property - the property does not form part of any estate devolving under the deceased
                   person‟s will.

         4.2.3     Tenants In Common

                   Tenants in common own separate fractional shares in the property. The shares don‟t
                   have to be equal. Each tenant in common can sell, mortgage and otherwise deal with
                   their share of the property, and can leave it to anyone in their will. Tenancy in common
                   is commonly used for business enterprises or when people buy real estate as partners for
                   profit making ventures.

4.3      WHAT OTHER THINGS MUST BE IN THE CONTRACT?

         4.3.1     Disclosure Requirements

                    Until recently, vendors selling land in NSW were not required to make any promises
                    about the condition of buildings on the land, and the rule of the day was very much
                    caveat emptor, or, let the buyer beware. However, section 52A of the Conveyancing
                    Act, combined with the Conveyancing (Sale of Land) Regulation 1995 now requires
                    vendors to disclose „up front‟ important matters about the property. The Regulation
                    aims to simplify conveyancing and reduce delays in the time taken, to make a binding
                    contract by:

                            requiring certain disclosure documents to be attached to contracts

                            imposing a system of warranties (essential promises) by the seller. These
                             promises apply unless there is written disclosure in the contract informing
                             otherwise

                            obliging a seller to disclose and clearly describe any serious defect in the title of
                             the property that the buyer must accept




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         4.3.2     Disclosure Documents That Must Be Attached To The Contract

                            A zoning or planning certificate (s. 149(2)) issued by local council. Note: a
                             council may give additional information in a certificate under section 149(5).

                            A plan or plans showing where the sewer lines are in relation to the land. These
                             plans are normally obtained from Sydney Water or from the water supply
                             authority in other cases.

                            A copy of the Property Certificate (search of the title deed issued by the Land &
                             Property Information Office).

                            A copy of the official plan of the land, for example, the Deposited (Subdivision)
                             Plan and in the case of a strata title sale, a copy of the whole strata plan.

                            A copy of all documents creating easements (rights of way, etc), covenants and
                             restrictions on use shown on the Property Certificate.

                            A notice (regulated wording and print size) drawing a purchaser‟s attention to
                             their rights. (This is in addition to the „cooling off‟ notice.)

                            In respect of dwellings approved after 1 May 1997, a Certificate of Home
                             Warranty Insurance must be attached to the contract.

                   This list is not complete in that different disclosure documents are required for the less
                   usual titles (e.g. Crown lands, community titles). The disclosure documents give a
                   documentary picture of the planning and title to a particular property. Should the
                   contract not contain the appropriate disclosure documents, the buyer has the right to
                   cancel the contract within 14 days of its making.

         4.3.3     The Warranties (essential promises)

                   Unless the contract contains a written statement disclosing something different, the
                   seller warrants at the date of contract:

                            the land does not contain any part of a sewer belonging to a recognised authority

                            the section 149(2) certificate specifies the true status (planning, zoning) of the
                             land

                            the land is not subject to adverse affectation

                   An adverse affectation is, typically, a proposal by a public or local authority to acquire
                   part or all of the land for road or railway realignment, widening or siting, or for
                   electricity transmission or distribution purposes. Scheduled affectations include notices
                   and claims concerning boundary irregularities/encroachments and notices issued under
                   various statutes, for example, unhealthy building land, heritage and pipelines (see Part 3
                   of Schedule 3 of the Regulation for full details).

                   A contract can be rescinded by the buyer any time before settlement for breach of this
                   warranty but only if:

                            the seller failed to disclose the matter




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                            the buyer was unaware of the existence of the matter, and

                            the matter is such that the buyer would not have entered into the contract had
                             they been aware of its existence.

         4.3.4     Implied terms

                   The Conveyancing (Sale of Land) Regulation 1995 „writes in‟ an implied term deemed
                   to be included in every contract. If the contract does not disclose and clearly describe:

                            any building on the land, other than a dividing fence, that encroaches onto
                             adjoining land, or

                            any building on adjoining land, other than a dividing fence, that encroaches onto
                             the land,

                   then the contract can be rescinded by the buyer any time before the sale is finalised
                   because of the existence of an undisclosed „defect‟ in title that is so serious that it
                   materially alters the subject property.

                   But where the contract discloses and clearly describes the „defect‟ then the contract can
                   provide that a buyer has no right to object and rescind in respect of the disclosed defect.

4.4      HOW DO I ENTER INTO A CONTRACT?

         4.4.1     Public auction

                   At a public auction, intending buyers compete in bidding to purchase property. When a
                   bid has been accepted, the hammer falls and the contract is made.

                   It is essential that the buyer or their solicitor or licensed conveyancer examine the
                   contract before the auction to make sure that it is in order and there are no objectionable
                   terms. It is also important that the buyer has arranged finance and made all the
                   necessary quality inspections.

                   At or before the auction the seller will fix a reserve price (ie the minimum price they will
                   accept for the property). Once the bidding reaches this reserve price, the auctioneer will
                   indicate to the buyers that the „property is on the market‟. The property is sold under the
                   hammer to the highest bidder at or above the reserve price. The buyer must then sign the
                   contract and pay the deposit.

                   If the reserve is not reached, the property is said to have been „passed in‟ and the seller
                   may lower the price to meet the highest bid. In this way, the property can still be sold
                   under the hammer and an immediate exchange of contracts can take place. However, it
                   is more usual for negotiations to continue privately after the auction. It is important to
                   remember that if contracts are exchanged on the day of the auction, the cooling off
                   period does not apply.

                   Buying at auction is usually regarded as being for the more experienced home buyer or
                   investor. Certainty of price for both buyer and seller and quick sale are achieved by
                   auction, but unsuccessful bidders may find themselves having incurred wasted expense
                   for valuation and quality inspection reports.




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         4.4.2     Private Treaty Contracts

                   Private treaty contracts are sales other than by auction. In a private treaty sale, buyers
                   have what is known as a „cooling off‟ period. This is a five day period after the contract
                   is signed that allows the buyer to pull out. If the buyer pulls out of the contract in this
                   time, they will lose 0.25% of the purchase price. The cooling off period can be extended
                   with the written agreement of the seller, or shortened or waived under a section 66W
                   certificate. A lawyer or conveyancer should explain to the client what is involved before
                   signing a section 66W certificate.

                   The cooling off period was introduced to prevent or minimise the practice of gazumping.
                   Gazumping is a sharp practice in which the seller sells to someone else at a higher price
                   after a verbal bargain has been made with an intending buyer, but before there is a
                   binding contract. Essentially, buyers can exchange or make a contract, committing
                   vendors to sell at the agreed price. They then have five working days to arrange or
                   confirm finance and to obtain reports as to the quality of the property (i.e. building, pest,
                   strata inspections, etc.). The contract will automatically become unconditional unless
                   the buyer, by written notice, rescinds within the cooling off period, or the cooling off
                   period is extended by agreement.

                   The Property Stock and Business Agents Act (s.84AB) permits estate agents to complete
                   and exchange contracts only if they have express authority to do so by the parties to the
                   contract. Many contracts are exchanged by the agent at the point of sale. Buyers should
                   take the contract, signed by the vendor, to their solicitor or conveyancer immediately to
                   allow maximum time for the work that needs to be done in the five day cooling off
                   period. Many buyers will require the advice of their solicitor or conveyancer before
                   signing, particularly if there are any special conditions in the contract that may need
                   negotiation or explanation. Where buyers are selling one house and buying another, a
                   series of contracts may interlock and require exchange at the same time. In such cases,
                   exchange at point of sale is not appropriate.

         4.4.3     Quality Inspections

                   Buyers should arrange to have all the quality inspections completed before the contract
                   becomes unconditional. They may wish to have expert building reports made as to the
                   structural soundness, condition of repair and suitability of any structure. In some areas
                   buyers will need to know whether the property is subject to landslip or flood. They may
                   also need a pest report to know whether there is white ant, termite or borer infestation.
                   Consideration should also be given to obtaining an identification survey, a certificate
                   under section 149D of the Environmental Planning and Assessment Act, and tests for
                   illegal sewer connections.

                   In the case of strata or community titles, buyers will need to know of any expected
                   liabilities of the owners corporation. Other useful information is normally contained in
                   strata reports (i.e. history of repairs, disputes between various owners).

         4.4.4     Finance

                   Buyers should also make sure they have a firm commitment from their prospective
                   mortgage lender before entering into a contract. There is a great deal of competition
                   among lenders of domestic mortgages such as banks, secondary mortgage market
                   lenders and other providers of loans. Lenders will take into account a prospective
                   borrower‟s credit rating and ability to repay a loan.




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                   It is possible to borrow up to 95 percent of the value of a property but, generally, for
                   loans of more than 75-80%, mortgage insurance is required. Mortgage insurance
                   protects the lender - not the borrower - from a loss if the property is sold on default of
                   the borrower and the mortgage insurer may pursue the borrower for the loss. The
                   premium for mortgage insurance is paid only once by the borrower and can vary
                   between 0.25 to 1.5% of the loan depending on the loan-to variation ratio (LVR).

                   Fixed term interest-only loans are available from private lenders and are often made
                   through the offices of a solicitor. Some lending institutions will give fixed term loans
                   with a set interest rate. An advantage of fixed term loans is that they offer certainty over
                   a set term, but they may become unsuitable where interest rates fall. They can also incur
                   costs for refinancing at the end of the fixed term. Fixed term loans are desirable when
                   interest rates have risen after a loan has been taken.

                   Most home buyers prefer long-term reducible loans but such loans are usually at interest
                   rates that vary according to market rates. Helpful articles and comparisons appear in the
                   newspapers and home buyers should shop around for the best deal. They should also
                   consider any non-interest charges made by lenders.

4.5      WHAT HAPPENS BETWEEN EXCHANGE OF CONTRACTS AND SETTLEMENT?

         4.5.1     Testing the Contract

                   After the contracts are exchanged, the buyer has to wait four to eight weeks until the sale
                   is finalised (completion). In this time they should search the title to verify the seller‟s
                   warranties and compliance with the promises of the contract.

                   A search should be conducted at the Land & Property Information Office to show
                   whether the title is different to or affected by anything other than what is shown by the
                   seller in the contract. A buyer should not have to accept notifications on the title other
                   than those stated in the contract. The final search, made just before settlement, will
                   check any further dealings lodged at the Land & Property Information Office between
                   the initial search and settlement.

                   The buyer should also obtain a section 149 certificate from the council to confirm that
                   the property is as represented in the contract. Sometimes there is a change of planning
                   between issue of the certificate and date of contract. A vendor‟s section 149(2)
                   certificate is „good‟ at issue but commonly there is a time span between its issue and the
                   exchange of contracts.

                   Inquiries should be made of various government and local government authorities to test
                   the seller‟s contract warranties. These searches and inquiries cost between $200 and
                   $230 and should be made promptly. If the property is affected other than as disclosed,
                   the buyer has a right to pull out of the contract. An example is an inquiry to check there
                   is no proposal for road widening.

         4.5.2     Insurance

                   Buyers should arrange for insurance to be effective from settlement or earlier
                   possession, noting the interest of any mortgagee (lender) in the new policy. As buyers
                   have an insurable interest from the moment the contract is exchanged, they may prefer to
                   insure at that stage. The lender usually requires the original (for authenticity) policy for
                   settlement. Buyers should take out replacement and reinstatement policies rather than
                   indemnity policies. An indemnity policy covers the value of what is destroyed.



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                   Replacement cost is usually higher than the value of what is destroyed. A number of
                   well-known companies offer such insurances and buyers should make their own
                   comparisons between premiums and other terms of the policy. In the case of strata titles,
                   the body corporate insures the building for replacement and reinstatement value and will
                   insure public risk and workers compensation.

         4.5.3     Survey

                   When you buy real property you buy what is fixed to the land. An identification survey
                   shows the improvements as sited on the land. It should reveal any encroachments by or
                   upon the land and observance of ordinances (e.g relating to the distance of the buildings
                   from boundaries). If the survey shows that the seller has not properly disclosed any of
                   these problems, the buyer may have a right to cancel the contract. A simple residential
                   identification survey report costs between $300 and $400.

                   The buyer may want a building certificate from the local council. Clause 13 in standard
                   contracts provides that if the buyer applies for such a certificate within 14 days of
                   signing the contract, the seller can be asked to do any work that is required. The seller
                   can refuse to do the work and rescind the contract. Buyers should get legal advice if
                   clause 13 is deleted from the standard contract.

                   Any requisitions, objections or claims for compensation arising out of search surveys or
                   inquiries or council inspections should be made promptly. It is not normally open to the
                   buyer to rescind the contract merely because of a defect in quality.

         4.5.4     Stamp Duty (State Government Tax)

                   The contract must be stamped (and stamp duty paid in full) within three months of
                   making the contract, otherwise penalties (extra duty) apply. Stamp duty on property
                   transfers will continue to apply even though most State duties will be replaced by the
                   Goods and Services Tax (GST) after 1 July 2000. The current rates of stamp duty are
                   given below.

                    Property values                               Stamp duty

                    up to $14,000                                 $1.25 per $100

                    $14,000-$30,000                               $175 plus $1.50 per $100 (or part thereof)
                                                                  over $14,000

                    $30,000-$80,000                               $415 plus $1.75 per $100 (or part thereof)
                                                                  over $30,000

                    $80,000-$300,000                              $1290 plus $3.50 per $100 (or part
                                                                  thereof) over $80,000

                    $300,000-$1,000,000                           $8990 plus $4.50 for every $100 (or part
                                                                  thereof) over $300,000

                    over $1,000,000                               $40,490 plus $5.50 for every $100 (or
                                                                  part thereof) in excess of $1,000,000

                   For example, the stamp duty payable on a contract where the purchase price is $140,000
                   would be $3,390.




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                   You can also use the stamp duty calculator on the Office of State Revenue‟s Website
                   which is www.osr.nsw.gov.au/calculators/landsalesimple.php.

                   Under the current first home owners scheme, first home buyers pay half the stamp duty
                   normally assessed. That is, they are effectively given a 50% discount. However, the
                   following restrictions apply:

                            The buyer must sign a declaration that the property is their first home purchase
                             and it is to be used for residential purposes.

                            The purchase price must not exceed $170,000 in the Sydney region or $150,000
                             in the country region for a property with a home built on it; or $80,000 in the
                             Sydney region or $70,000 in the country region for vacant land.

                            The buyer must occupy the home, or intend to occupy it within a reasonable time
                             after settlement, as their principal place of residence.

                            If the buyer is single, their annual income must not exceed $39,000 and, if the
                             buyers are a couple, their combined annual income must not exceed $57,000.

                            The buyers must purchase the property in their own names, not under company
                             or trust structures.

                   First home buyers who are entitled to the stamp duty discount under the first home
                   purchase scheme are also exempt from paying stamp duty on any mortgage. For all
                   other buyers, stamp duty is payable on mortgages at the rate of $5 on the first $16,000,
                   $4 per $1000 thereafter and $2 on the copy mortgage.

4.6      WHAT IS COMPLETION (SETTLEMENT)?

         A buyer may consider registering a caveat on the seller‟s title at the Land & Property
         Information Office, after contracts are exchanged, and until completion occurs. A caveat is a
         public notice that states the caveator (the person lodging the caveat) has an interest in the seller‟s
         title.

         Once a caveat is lodged at the Land & Property Information Office, it prevents registration of
         dealings inconsistent with the caveat and secures the buyer‟s interest in the title until settlement
         takes place. The Land & Property Information Office will notify the existing owner that a
         caveat has been lodged. In practice, a caveat is not normally lodged without special reason, for
         example, in the rare case of releasing the deposit to the :seller in advance of settlement.

         Completion may take place when the buyer has received satisfactory answers to searches and
         inquiries, and met the requirements of the mortgagee (lending institution). Usually the solicitors
         for the buyer and for the seller arrange this and there is no need for the buyer and seller to be
         present.

         On payment of the balance of the purchase price (usually 90%, a 10% deposit having already
         been paid), with adjustments for rates and outgoings up to and including the date of settlement,
         the buyer will receive a signed transfer or conveyance of the title from the seller and the title
         deed or deeds. Normally these are given to the buyer‟s lender, who attends to registration of the
         transfer (or conveyance) and mortgage (and any discharge of the seller‟s mortgage) at the Land
         & Property Information Office. The lender keeps the title deed until the loan is repaid.




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         Vacant possession will be given to the buyer on completion of the transfer. Vacant possession
         means the previous occupants have left and all goods and chattels have been removed other than
         those inclusions stated in the contract as remaining (e.g. carpet and blinds).

         The Land & Property Information Office will require an appropriate notice to be lodged with the
         property transfer before it will notify councils and water suppliers of the changed ownership.

         Finally, it is a good idea to arrange a final inspection of the property either on the day of, or the
         day before, settlement to ensure the property is in good order and that no inclusions listed in the
         contract (such as light fittings) have been removed or replaced with unacceptable alternatives. If
         there are any problems that become apparent on inspection of the property, buyers should
         contact their solicitor before they settle. For people doing their own conveyancing, they should
         insist that these matters be rectified before they settle.

5.       STRATA SCHEMES

5.1      THE LEGISLATION

         5.1.1     The Strata Titles Act 1913

                   Before 1961, flats in Australia could be owned only by company title, leases or joint
                   ownership. These systems were not entirely satisfactory and in 1961 the NSW
                   Conveyancing (Strata Titles) Act was introduced to provide adequate security of title
                   both for the owner and for the lending authorities, who were reluctant to lend money on
                   an unsecured title. This represented an entirely new approach to home ownership. The
                   Act was substantially amended in 1973 and became the Strata Titles Act 1973 (STA).
                   There were further significant amendments in 1974, 1988 and 1992.

                   A review of the Strata Titles Act completed in March 1993 resulted in 90
                   recommendations for amendments of the Act to better cater for the changing nature of
                   modern strata developments, and to provide more relevant and flexible options in the
                   resolution of disputes. A key issue that shaped the recommendations was the need for
                   the Strata Schemes Commissioner to play a more active role in informing people about
                   difficulties commonly encountered in living in a strata development.

         5.1.2     The Strata Schemes Management Act 1996

                   The Strata Schemes Management Act 1996 (SSMA) commenced on 1 July 1997. It
                   introduced dispute resolution provisions including mediation, the appointment of
                   adjudicators, new owners corporation (formerly the body corporate) responsibilities in
                   financial and insurance matters, and streamlined meeting procedures. There were
                   changes in the provisions about by-laws, levies, and the imposition of penalties. The
                   Strata Schemes (Freehold Development) Act 1973 and the Strata Schemes (Leasehold
                   Development) Act 1986 continue to operate along with the SSMA in relation to the
                   subdivision and registration aspects of strata schemes.

                   The Strata Schemes Management Act operates in respect of a strata scheme. It sets out
                   rules and guidelines for a scheme of ownership of home units or townhouses where each
                   owner owns parts of a building and has joint rights with other owners over the land and
                   other common areas. The Act sets up a Strata Schemes Board and appoints a Strata
                   Schemes Commissioner and adjudicators. The adjudicators have powers to make orders
                   to resolve disputes arising within strata schemes and in some cases between adjoining
                   schemes.




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                   The Strata Schemes Commissioner provides information and mediation services. The
                   Strata Schemes and Mediation Services Branch of the Department of Fair Trading can
                   provide information and advice on problem areas, making an application to the board or
                   adjudicator, or seeking mediation services provided by the commissioner.

5.2      WHAT IS A STRATA SCHEME?

           A strata scheme is defined in section 5 of the 1973 Act as:

                  the manner of division, from time to time, of a parcel into lots or into lots and common
                    property, and the manner of the allocation from time to time of unit entitlements among
                    the lots, and

                  the rights and obligations, between themselves, of owners, other persons having property
                    in or occupying the lots and body corporate, as conferred or imposed by this Act or by
                    anything done under the authority of this Act and as in force from time to time.

           The strata scheme refers to the division of a property, containing some building structure, into
           lots and common property. Generally, a scheme is set up by the developer who arranges for the
           strata plan to be prepared by a surveyor and then approved by the local council. The plan is
           registered in the Land & Property Information Office where separate titles are issued for each
           lot, and a separate title comprising common property is contained in a folio of the register.

5.3      WHAT ARE BY-LAWS?

         The Act includes by-laws which cover the day-to-day running of the strata scheme for the people
         living in the block. This is Schedule 1 of the 1996 Act. These by-laws apply to schemes in
         existence when the Act started. Schemes which come into effect after this time can use one of
         the six models included in the Regulations (or use custom designed by-laws). There are models
         for commercial, industrial, mixed use hotels/resorts and retirement villages as well as for
         residential schemes.

         By-laws cover the behaviour of unit holders and occupiers and other relevant matters. They may
         be altered by a special resolution of the owners corporation. Changes to by-laws will not be
         effective until the Land & Property Information Office is notified of the change and the
         Registrar-General has changed the official records. If the Land & Property Information Office
         has not been notified within two years of the resolution, a fresh resolution must be passed.

         A special resolution is needed to change or create a by-law or to pass a by-law creating rights of
         exclusive use or special privileges in relation to sections of common property. A special
         resolution together with the consent of the owner who will benefit from the grant is sufficient.
         For instance, a unit holder who wants to glass in a balcony would be affecting an exterior wall,
         which is common property. Exclusive use of that part of the common property could be granted
         with the consent of the owners corporation, allowing the unit holder to glass in the balcony at
         their own expense (and depending on local council approval).

         Other than for retirement villages, by-laws for strata schemes may not restrict occupation by
         children. By-laws may not prohibit guide dogs or hearing dogs.

5.4      YOUR LOT

           A lot is an individually owned title. It may cover the ownership of a unit and other parts of the
           building (e.g. a garage and a storeroom, as well as a share in the common property).




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           As a very general rule, the boundary of a lot is at the inner surface of the floors, walls and
           ceilings. This means that the substance of walls, floors and ceilings is common property.

5.5      THE COMMON PROPERTY

           The common property will vary from one strata plan to another, but basically includes all
           structures and surfaces which are used by more than one unit holder, such as floors, walls, pipes
           and electrical wiring. The owners corporation must look after all common property, repairing,
           replacing or renewing it when necessary.

5.6      YOUR UNIT ENTITLEMENT

           Every strata plan bears a unit entitlement schedule. This is a schedule defining each unit in
           comparison to all the others, and is usually based upon the value of the unit at the time of
           registration of the plan. The original owner (usually the builder or developer) determines the
           entitlements, which are then used to work out what each unit must contribute to the various
           funds. They can also determine voting rights of the unit owners.

           If, for example, Lot 1 bears a unit entitlement of 30/100 (or 3/10), this means that when levies
           are determined by the owners corporation, the owners of Lot 1 will be responsible for the
           payment of 3/10ths of the total cost of maintaining and managing the property. A larger unit
           entitlement also gives an owner a larger vote if a poll is called at an owners corporation
           meeting.

           If the unit entitlements as first submitted to the Registrar-General are found by the Strata
           Schemes Board to be unreasonable having regard to the value of the lots at that time, the Board
           may reallocate them.

5.7      RUNNING A STRATA SCHEME

         5.7.1     THE INITIAL PERIOD

                   The Strata Schemes Management Act provides for an „initial period‟ which commences
                   when the plan is first registered. This automatically creates an owners corporation for
                   that strata scheme. At this stage, the owners corporation generally consists solely of the
                   original owner. The initial period ends when one-third of the unit entitlements have
                   been sold.

                   During the initial period it is up to the original owner to carry out the duties of the
                   owners corporation. However, the powers of the owners corporation are restricted during
                   this time. It must not:

                            change or cancel the by-laws or make additional by-laws that do not affect all
                             future owners equally

                            alter common property

                            incur a debt that exceeds the amount available for payment

                            borrow money or give securities

                   The original owner can appoint a managing agent to manage the property only until the
                   first annual general meeting (AGM).




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                   The original owner must hold the first AGM within two months of the end of the initial
                   period or face a fine of up to $1100. The adjudicator may appoint someone to call the
                   first AGM if the original owner fails to do so. The owners corporation, an owner or
                   mortgagee of a lot can apply to the commissioner and ask for this appointment to be
                   made. An owner or mortgagee can also apply to the adjudicator to appoint a person to
                   hold a general meeting if an AGM was held but the executive committee or office
                   bearers were not elected.

                   Each owner and first mortgagee shown on the strata roll (see the Strata Roll below) must
                   be given at least 14 days notice of this meeting. At the meeting, the original owner must
                   give the owners corporation:

                            all plans, specifications, certificates, diagrams and other documents relating to
                             the scheme

                            the certificate of title for the common property

                            the strata roll

                            any other notices or records relevant to the strata scheme

                            accounting records and current financial statements

                   An original owner who owns one half or more of the total unit entitlements has their
                   voting rights reduced to one-third of their normal value.

                   An agenda for the first AGM is set out in Schedule 2 of the Act. This covers making
                   decisions about:

                            levies

                            insurance levels

                            the number of members on the executive committee of the owners corporation

                            electing the members of the executive committee of the owners corporation

                            what matters shall be restricted matters (i.e. requiring special or unanimous
                             resolutions)

                            adding to, amending or repealing any of the by-laws

                            whether a managing agent will be employed

                            examining the accounting records to date

                            whether an auditor should be appointed

                            whether additional insurance should be taken out.

                   If this set agenda is used, the first AGM will be valid even if it is held more than two
                   months after the end of the initial period.




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         5.7.2     The Role Of The Owners Corporation

                   The owners corporation has certain rights and duties over the management and
                   administration of the property as a whole, but generally has no responsibility for the
                   maintenance of individual units although it must have them covered by building
                   insurance.

                   The Act sets out the following responsibilities of the owners corporation:

                            to control and manage the common property for the benefit of the owners

                            to properly maintain and keep in a state of good repair the common property and
                             any personal property vested in it (although it can decide not to repair items no
                             longer needed where safety and appearance of the building are not affected)

                            where necessary, to replace or renew items

                            install a letterbox

                            organise insurance, levies, etc

                            call AGMs.

                   The Strata Schemes Commissioner can prosecute an owners corporation that fails to
                   fulfil these duties.

         5.7.3     Executive Committee Of The Owners Corporation

                   The executive committee of the owners corporation is elected at each AGM to take
                   responsibility for the day-to-day running of the scheme. Any decision made by the
                   executive committee is treated as a decision of the owners corporation, but no individual
                   executive committee member can make a decision for the owners corporation. The
                   executive committee cannot vote on a restricted matter (i.e. a matter that needs a special
                   or unanimous resolution, or a matter which the owners corporation wants to deal with
                   itself (see Meetings below)). Decisions on financial estimates and the setting of levies
                   are also matters for the owners corporation only.

                   There is no required minimum number of executive committee members, and an
                   executive committee may, with owners corporation approval, have up to nine members.

                   Office bearers of the executive committee

                   The executive committee appoints a chairperson, secretary and treasurer to carry out the
                   duties set out in the Act and by-laws.

                   The duties of the secretary of the owners corporation include convening executive
                   committee meetings and attending to administrative matters for the owners corporation
                   or the executive committee (e.g. keeping the strata roll up to date and liaising with the
                   appointed managing agent).

                   The treasurer receives payments and maintains the levy register. Once a year, the
                   treasurer must prepare a statement of income and expenditure for the administrative fund
                   and sinking fund.




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         5.7.4     Meetings

                   An annual general meeting must be held between 11 and 13 months after the anniversary
                   of the first AGM, and once a year after that within the same time frame. An application
                   may be made to an adjudicator to vary the date of the AGM.

                   An extraordinary general meeting (i.e. a general meeting of the owners corporation that
                   is not an AGM) should be held when requested or when restricted matters arise, for
                   instance, to change, cancel or make by-laws, or to appoint or dismiss a managing agent.
                   An extraordinary general meeting would be needed to raise funds not covered in the
                   budget approved at the AGM.

                   An extraordinary general meeting (EGM) can be called by majority vote of the executive
                   committee or by the owners. To do this, owners who are entitled to vote and
                   collectively hold one-quarter of the total unit entitlements give written notice to the
                   secretary asking for the meeting to be held.

                   If the secretary is away, the notice can be given to any other executive committee
                   member. The meeting must be held within one month of being requested. Notices for
                   general meetings must include:

                            a motion to confirm the minutes of the last general meeting

                            motions to be considered at the meeting

                            clear indication of any motions needing special or unanimous resolution

                            a copy of the minutes of the last general meeting attached for owners who have
                             not been given a copy before.

                   Notices of the meeting must be given to each owner and first mortgagee of a lot (as
                   shown on the strata roll), at least seven days before the meeting. Each person‟s notice
                   must indicate-the motions on which they may vote. Notice does not have to be given to
                   mortgagees (financial lenders) unless there are items on the agenda requiring a special or
                   unanimous resolution.

                   If present, the chairperson must preside over the meeting. If the chairperson is away, the
                   meeting must elect someone to chair that particular meeting. That chairperson is entitled
                   to vote but does not have an additional casting vote.

                   The minimum number of people who can make up a valid general meeting (i.e. the
                   quorum) is a quarter of the people entitled to vote, or owners holding at least a quarter of
                   the unit entitlements. There must be a quorum before any motions can be voted on and
                   for each item voted on. The quorum includes owners who go to the meeting and proxies
                   (a person nominated by an absent owner to act on their behalf). If there is no quorum
                   half an hour after the meeting was due to start, it must be adjourned and held at least one
                   week later. The time and place of the adjourned meeting is set by the chairperson. The
                   secretary must give at least one day‟s notice of the adjourned meeting, spelling out the
                   quorum provisions. If there is again no quorum half an hour after the adjourned meeting
                   was due to start, the meeting can go ahead.

                   Any person who is up-to-date on their levies is entitled to vote at a general meeting.
                   They can ask for a motion to be put on the agenda for the next general meeting by giving
                   written notice to the secretary stating their name, lot number and the motion. The



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                   secretary must then put the motion on the agenda for the next general meeting. The
                   meeting can only vote on motions which are on the agenda. However, motions may be
                   amended at the meeting by any person who is entitled to vote.

                   The chairperson may rule that a motion is out of order if:

                            it would conflict with the Act or be unlawful or unenforceable under the Act, or

                            proper notice of the meeting was not given

                            The following people are entitled to vote at a general meeting

                            an owner

                            a mortgagee or covenant chargee of a lot

                            a company nominee

                            an appointed proxy

                   It is only possible to vote at a general meeting in pPerson or by proxy. A proxy may be
                   given to any person but to be valid it must be made on the form set out in the
                   Regulations and be given to the secretary before or at the meeting. Proxies only have a
                   life of 12 months or two consecutive annual general meetings - whichever is the longer.
                   Proxies can be renewed.

                   A motion succeeds or fails according to the number of votes cast for or against it. Most
                   decisions can be made by a simple majority vote, but sometimes a special or unanimous
                   resolution is needed. If a motion requires a special resolution, no more than 25% of
                   owners entitled to vote at the meeting can vote against the motion. A unanimous
                   resolution requires that no-one at the meeting vote against the motion. Even when a
                   motion only needs a simple majority vote, a voter can call for a poll. When a vote is
                   decided by a show of hands, each owner has an equal vote.

                   However, when a vote is decided by poll, the owners have the same number of votes as
                   their unit entitlement. For example, if six people voted for a motion and they have a
                   combined unit entitlement of 60, and seven people voted against the motion and they
                   have a combined unit entitlement of 40, the decision of the six will prevail.

                   Meetings of the executive committee

                   The Act does not specify how often executive committee meetings should be held.
                   Executive committee meetings can be held whenever one-third of the executive
                   committee members ask the secretary to hold a meeting. If the secretary is away, any
                   other executive committee member may be asked to convene a meeting. The secretary
                   or their stand-in must then put a notice on the noticeboard at least 72 hours before a
                   meeting is to be held. The notice must have a detailed agenda, and the meeting must be
                   held within the time specified by those calling the meeting. If there is no noticeboard,
                   notice of the meeting must be given to each executive committee member and owner in
                   writing.

                   If owners wish to oppose any motions appearing on the agenda, they must send their
                   objections in writing to the secretary before the meeting is held. If owners holding more




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                   than one-third of the total unit entitlements for the strata scheme oppose a motion, any
                   decision made by the executive committee on that matter will have no force.

                   Although the executive committee can deal with most issues, any matter requiring a
                   special or unanimous resolution must be dealt with by the owners corporation in a
                   general meeting (eg the amendment of a by-law conferring a right of exclusive use of
                   common property on one of the owners). In addition, the owners corporation may
                   impose other restrictions on the executive committee.

                   Until the 1988 amendments to the Strata Titles Act, the executive committee of an
                   owners corporation was restricted in the amount of money it could spend without the
                   authority of a special resolution of the general meeting. This statutory restriction has
                   now been removed. However, an owners corporation can still pass a resolution setting a
                   limit on how much the executive committee can spend.

                   Unlike general meetings, the executive committee can vote in writing instead of holding
                   a meeting. This can be done by giving a notice and agenda to each executive committee
                   member either through the noticeboard, or in writing. A valid resolution can then be
                   made by obtaining written approval from the majority of executive committee members.
                   This resolution must be minuted and displayed in the normal way; that is, a copy must
                   be given to each owner within seven days of the meeting or a copy must be placed on the
                   noticeboard within seven days of the meeting and left there for at least 14 days.

         5.7.5     Managing Agents

                   It is common for an owners corporation to appoint a managing agent to handle the strata
                   scheme administration. The appointment and powers of a managing agent can only be
                   decided by a majority vote at a general meeting. The managing agent must be a licensed
                   strata managing agent under the Property, Stock and Business Agents Act 1941.
                   Licences are issued by the Department of Fair Trading.

                   A managing agent‟s duties may include maintenance and repair of the common property,
                   keeping the books of account, preparing and collecting levy contributions, keeping the
                   strata roll and minutes of meetings, and looking after correspondence and insurances.

                   A managing agent cannot delegate powers, authorities, duties or functions to others or
                   make a decision on a restricted matter. If a managing agent has mistakenly been given
                   these powers in a contract of employment, the owners corporation and its executive
                   committee still retain the right to execute these duties.

                   When a managing agent is given a certain duty to perform, they must write to the owners
                   corporation and confirm that the job has been completed. They must also give details of
                   trust accounts and financial transactions when asked in writing by the owners
                   corporation.

                   A managing agent is an employee of the owners corporation and can only act within the
                   wishes of the executive committee or owners corporation. However, an adjudicator may
                   appoint a managing agent to carry out all or some of the powers and duties of the owners
                   corporation, the executive committee, chairperson, secretary or treasurer if the
                   adjudicator is satisfied that their work is not being done adequately. Only the
                   adjudicator can give a managing agent total powers to override the owners corporation.
                   This can be granted for a maximum of 12 months, and can be renewed on application.




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         5.7.6     The Strata Roll

                   Each strata system must keep a strata roll with details of all the owners. The roll may be
                   kept in book or computerised form. The following information must be recorded:

                            the strata plan number and the address of the building

                            total unit entitlements for the scheme and each lot

                            the name of the original owner and address for the delivery of notices

                            the name of the managing agent (if there is one) and the address for notices

                            insurance details

                            the by-laws for the strata scheme.

                   Printed forms for the owners corporation‟s records can be purchased from some legal
                   stationers.

         5.7.7     Strata Levies

                   The owners corporation must levy unit owners a certain amount each year (at the same
                   meeting where the budget is approved) to cover the costs of insurance and of
                   maintaining the common property and general administration of the scheme. If a
                   managing agent is employed, the levy would be used to cover their fee also. The total
                   amount levied varies, depending on the amount of common property and whether there
                   are expensive items to maintain such as lifts, pools and spas. The unit entitlement is
                   used to work out how much levy each owner pays. Proper accounting procedures must
                   be followed in the administration of levies. The treasurer must keep a levy register, with
                   a separate page for each lot, in which all payments of levies are recorded.

                   There are two types of levies:

                            The administrative fund - covers recurrent expenditures and includes general
                             administration, repair and maintenance of common property and insurance
                             premiums.

                            The sinking fund - this is for capital expenditures and is used to purchase
                             replacement or new items for the common property (e.g. buying washing
                             machines or lawn mowers for communal use) and future maintenance items such
                             as replacement of a roof or fencing.

                   Levies can be raised to cover urgent items not included in the budget. A levy can also
                   be raised to repay money transferred from one fund to the other or when a payment is
                   made from one fund that should have been paid from the other. The levy must repay
                   that fund within three months of the transfer. „Special purpose‟ levies must be placed in
                   the administrative fund no matter what their purpose.

                   The different funds may be deposited in the one bank account as long as the treasurer‟s
                   accounts show clearly the appropriate division of the money.




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                   Levies cannot be set at an executive committee meeting and must be done at an AGM.
                   Where expenditure becomes necessary beyond the approved budget, an EGM can be
                   held to approve the expenditure and to fix the resulting levies.

                   Any motion to set a levy must be accompanied by a budget showing the current financial
                   position of the strata scheme. The budget can be attached to the notice of the meeting,
                   or presented at the meeting before voting on the motion. The motion must show:

                            the amount to be paid

                            the dates it covers (if necessary)

                            the date for payment

                   After the meeting, the treasurer must write to the owners and tell them the amount and
                   what decisions were made about the levy.

         5.7.8     Insurances

                   The owners corporation must insure the property in accordance with the Act. Sections
                   83 and 87 set out what insurance must be obtained.

                   There must be a damage policy with an approved insurer which covers:

                            owners‟ improvements and owners‟ fixtures and fittings forming part of the
                             building other than paint, wallpaper and temporary wall, floor and ceiling
                             coverings. Fixtures and fittings include items such as carpets in common areas,
                             hot water systems, light fittings, toilet bowls, sinks, shower screens, cupboards,
                             internal doors, stoves, common air conditioning systems and intercom systems

                            any building consisting entirely of common property

                            anything prescribed by the SSMA Regulations as forming part of a building

                   A damage policy must cover the building against damage or destruction by fire,
                   lightning, explosion or any other thing specified in the policy, for the replacement
                   (where destroyed) or the reinstatement (where damaged but not destroyed) of the
                   building to the same condition it was in when new. The policy must also cover the cost
                   of removing debris and the payment of architects and others whose services are needed
                   for the replacement or reinstatement of the building.

                   The Act also requires a public liability policy which covers property damage and death
                   or bodily injury occurring on the common property, for a minimum amount of
                   $10 million.

                   If voluntary (unpaid) workers are used it is necessary to have insurance for damages the
                   owners corporation might be liable for.

                   The Workers’ Compensation Act 1987 requires employers to have workers
                   compensation insurance to cover employees. It is necessary for the owners corporation
                   to take out this insurance if it intends to employ workers (e.g. cleaners, painters etc.).

                   Unit owners are responsible for taking out contents insurance to cover carpet, paint,
                   wallpaper, furniture and furnishings in their own unit. The owners corporation policy
                   will not cover these items. The owners corporation may also take out (although it is not


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                   compulsory) office bearer‟s liability and fidelity insurance. This additional insurance is
                   a compulsory item for consideration on each AGM agenda.

         5.7.9     Animals

                   A unit holder must generally apply to the owners corporation for permission to keep an
                   animal in a strata title unit or the common property. However, the by-laws provide that
                   the owners corporation shall not unreasonably withhold approval. This means that
                   where some unit holders have animals, it may be difficult to stop other unit holders also
                   having animals. For schemes coming into existence after the start of the 1996 Act, there
                   may be a by-law allowing a cat or small dog to be kept. Other by-laws may prevent
                   animals being kept at all. This will need to be checked with the owners corporation.

                   A visually impaired person‟s use of a guide dog cannot be restricted, nor can a deaf
                   person be prevented from keeping a hearing dog.

         5.7.10 Disputes

                   Adjudicators and the Strata Schemes Board

                   Applications can be made to the adjudicator and the Strata Schemes Board for orders to
                   resolve disputes within strata schemes. For information about how to apply for such
                   orders, contact the Strata Schemes and Mediation Services Branch. The office will
                   answer queries over the phone or anyone can make an appointment and go into their
                   office. The most common problems relate to by-laws, common property and meeting
                   procedures. However, before an application can be made, an attempt at mediation of the
                   problem is necessary. The Strata Schemes Commissioner provides mediation services
                   but will allow others to also carry out this role.

                   Matters can be dealt with by the adjudicator or the board, depending on the type of
                   dispute. Orders can be made for the owners corporation, managing agent or any owner
                   or occupier having an interest in a lot, to do, or to stop doing, a certain act.

                   To apply for an order, the owner or the tenant must set out the details of the dispute and
                   the order that they want and send this to the Registrar at the Strata Schemes Board
                   Office. The owners corporation must be notified of any application, and it, in turn, must
                   give notice to everyone recorded on the strata roll.

                   It can take six to eight weeks to deal with the application. The adjudicator may review
                   submissions from all the people involved and the parties may be interviewed by an
                   investigating officer. Certain disputes between adjoining strata schemes may also be
                   mediated or adjudicated.

                   In urgent situations interim orders can be issued. Applications for interim orders can be
                   made on the standard form available from the Strata Schemes Office. These orders are
                   valid for up to three months and can be renewed for a further three months. They will
                   generally only be made in situations which would be absolutely irreversible, for
                   example, to stop someone from cutting down a tree.

                   A person can appeal to the Strata Schemes Board against the adjudicator‟s order within
                   21 days after the order takes effect (the board can extend this time to 90 days).
                   Sometimes the matter may need to be referred to the board for determination. While the
                   adjudicator can make an order on written evidence only, matters coming before the
                   board are treated much more formally and evidence may be given. A monitor records



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                   the proceedings. Solicitors are generally engaged to represent the different parties,
                   although people can represent themselves.

                   A person who does not follow an order can face a fine of up to $5500. Under the 1996
                   Act, penalties will be imposed by the Strata Schemes Board and not the local court as
                   applied previously. Costs can also be awarded.

5.8      OWNING A STRATA SCHEME UNIT

         5.8.1     Buying

                   Anyone buying a strata scheme unit is entitled to a „section 109 certificate‟ giving
                   information about the scheme, including the names and addresses of the executive
                   committee members, if there is a managing agent, the levies being paid by the owners,
                   the amount of any outstanding levies, where the records and financial statements can be
                   viewed and any special by-laws made by the owners corporation in the previous two
                   years.

                   A section 109 certificate is usually obtained by an owner when selling their unit. They
                   or their solicitor write to the owners corporation and request the certificate. The
                   treasurer must then issue the certificate within 14 days or the owners corporation could
                   be fined up to $220.

                   The purchaser is not responsible for paying an outstanding levy if it was not shown on
                   the certificate. However, the new owner and the old owner are both liable to pay any
                   money which becomes outstanding after the certificate is given.

                   With an owner or a mortgagee‟s written permission, a purchaser may also write to the
                   secretary of the scheme and make an arrangement to view the records of the owners
                   corporation. Copies of the records can be made, but the records themselves cannot be
                   removed without the owners corporation‟s written permission.

         5.8.2     Responsibilities Of Residents

                   All owners and residents in a strata scheme must obey the by-laws. Sections 116 and
                   117 of the Act forbid an owner, mortgagee, lessee or occupier of a lot:

                            interfering with another lot or its services

                            interfering with any support or shelter which their lot provides for another

                            making a nuisance of themselves

                            inconveniencing the inhabitants of the other lots, either in their lot or on
                             common property.

                   Section 119 also states that an owner must inform the owners corporation if a lot is
                   transferred, leased or sub-leased. There is a penalty of up to $550 for not doing so.
                   However, the owners corporation cannot enact a by-law which restricts or prohibits the
                   inheritance, transfer, lease, mortgage, etc. of a lot by its owner.

         5.8.3     Rates And Taxes

                   For the purpose of rates and taxes, the local council values the building as if it was a
                   single property owned by the owners corporation and then works out the rates for each



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                   unit according to their unit entitlement. Each unit owner is then charged the calculated
                   amount or the minimum rate, whichever is higher. Each unit owner will receive a
                   separate rates notice. The owners corporation will only receive a rates notice if a service
                   (e.g. a type of garbage service) is provided for the building as a whole.

                   Water rates are usually worked out in a slightly different way. If there is only one meter
                   for the whole building, the bill will be sent every three months to the owners
                   corporation. It will then divide the charge among the unit holders according to their unit
                   entitlement. As well as the water usage charge, each unit owner may receive a rates levy
                   charge every three months. This is a flat charge based on the services provided for each
                   unit, and is sent to each owner.

                   If each unit has its own meter, each unit holder is responsible for paying their own water
                   rates and usage charge. Sometimes there will be a master meter for the whole building,
                   with separate meters for each unit. The owners corporation will be charged for any
                   water used above that recorded on the units‟ individual meters. This will cover water
                   used on common property, such as laundries or gardens.

         5.8.4     Renting A Strata Scheme Unit

                    Tenants renting a lot or common property within a strata scheme are bound by the same
                    rules and regulations as an owner. They are not entitled to become members of the
                    owners corporation, although they can always participate with a written proxy vote from
                    their landlord. Tenants can become members of the executive committee if they are
                    nominated by an owner.

                    A tenant must be given a copy of the owners corporation by-laws by the landlord within
                    seven days of moving in. There is a penalty of up to $110 for not doing so.

                    Generally, tenants are not responsible for repairs. If a repair has to take place wholly
                    within the lot being rented, then it is the landlord‟s responsibility, according to the terms
                    of the lease. If the repair has to be made to a wiring or plumbing system common to the
                    whole property, an external wall or anything which is common property, then it is the
                    responsibility of the owners corporation.

                    The owners corporation has no power to evict a tenant, or to stop an owner from leasing
                    their lot to anyone. Only the landlord can take steps to end a residential tenancy
                    agreement.

6.       RATES AND TAXES?

6.1      COUNCIL RATES

         All property owners are required to pay council rates. Regulations regarding the payment of
         rates are contained in Chapter 15 of the Local Government Act 1993 (LGA).

         There are two kinds of rates - ordinary rates and special rates. A council must make an ordinary
         rate each year. The amount of the ordinary rate may vary according to the category of land as
         farmland, residential, mining or business. For a person who thinks their land should be in a
         different category (and so attract a lesser rating), there is a right of appeal to the Land and
         Environment Court.

         A council may also levy special rates -for services, works and facilities provided by the council.




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         Rates may be calculated as a percentage of the land value of valuable land in the council area.
         The rate can be partly a base amount which is the same for all land in the area, and partly a
         percentage calculated on land value.

6.2      HOW IS LAND VALUED?

         A notice of valuation is required under the Valuation of Land Act, although a valuation is not
         invalid because of failure to give notice. Normally, the valuation is done by the Valuer-General
         and either the council or land owner can appeal. If there is no Valuer-General list valuation, a
         council can appoint its own valuer. Values are decided using comparative sales evidence, and
         also on the highest and best use which is legally possible under the zoning (irrespective of
         whether the land is actually being used in that way). This means that a piece of land with a
         single residence could be valued as if it had high residential flats on it, if this was allowed under
         the local environmental plan.

6.3      ANNUAL AND OTHER CHARGES

         In addition to ordinary rates, a council must levy an annual charge for domestic waste
         management services based on the reasonable costs of providing those services. The council
         may also levy other annual charges.

6.4      WHAT LAND IS RATEABLE?

         All land is rateable unless it is especially exempt under sections 555 and 556 of the LGA 1993.
         Exempt land includes churches and schools.

6.5      ARE THERE ANY CONCESSIONS?

         Part 8, Chapter 15 of the LGA deals with available concessions. Concessional rates are available
         for eligible pensioners. Also, a ratepayer may apply for postponement of part of the rates on
         land which is used only as the site of a house or rural land, but which, under its zoning or
         permitted use, is valued for rating purposes at a higher rate. It is worth noting that under
         section 127 of the Heritage Act 1977, rates applying to property protected by an instrument
         under the Act would be levied on heritage valuations in accordance with the Act.

         The LGA also allows a person who suffers hardship from a jump in valuations and therefore a
         jump in rates to apply for relief from the full effect of a large rate increase.

6.6      RATE CERTIFICATES

         Any person can apply to the council for a certificate as to the amount due or payable to the
         council by way of rates charges or otherwise in regard to any piece of land in the area controlled
         by the council.

6.7      WHAT HAPPENS IF I DO NOT PAY THE RATES?

         A rate charge or fee or any money due to the council under the LGA may be recovered as a debt
         by the council. Annual rates and charges may be paid in a single instalment or by quarterly
         instalment. Interest accrues on rates and charges that remain unpaid after they become due and
         payable. When the rates and charges have been in arrears for five years, the council may sell the
         land after notice and advertisement. A person who acquires land can be responsible to the
         council for rates levied before the land was acquired (s.571). It is therefore wise to obtain a rate
         certificate before buying land or property.




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         For full details about rates and other council charges, people should contact their local council or
         the Department of Local Government.




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7.       COMMERCIAL LEASES

7.1      OVERVIEW

         A person or company (the lessee) can lease or sub-lease premises from the holder of an interest
         in real estate, either as owner or leaseholder, by either an oral or written agreement.

7.2      ORAL LEASES

         It is possible, but not recommended, for parties in NSW to agree orally to enter into a lease
         provided that:

                  the lease is at the best rent reasonably obtainable and runs for less than three years,

                  and the lessee has the right to immediate possession of the premises.

         The uncertainity and difficulty in establishing the precise terms and conditions of an oral
         agreement are such that it is in the interest of either lessor or lessee to have a properly
         documented agreement as to terms and tenure.

         Landlords will usually require leases to be in writing as the terms of an oral lease are uncertain
         and difficult to prove. Business owners concerned about security and certainty of tenure will
         also usually ask for a written lease.

7.3      WRITTEN LEASES

         A well-drafted lease will set out the rights and responsibilities of all parties to the agreement in a
         way which will minimise disputes.

         Lessees should read through leases they receive and not simply rely on statements made by the
         lessor or real estate agent.

         As with any contract, the lessee should not simply sign a document uncritically and hope for the
         best. The agreement should be read carefully and each clause understood. It is always wise to
         obtain independent legal advice before signing a lease.

         Remember, the lessee doesn‟t have to agree to all of the things in the lease. It is often expected
         that these will be negotiated and so some of the lessor‟s terms may initially be unreasonably
         tough. It may also be possible to negotiate some of the initial costs, including rent-free periods
         and sharing legal fees, depending on the state of the rental market.

         The lessee may not get all the concessions desired, but without negotiating, no concessions will
         be gained.

7.4      THE RETAIL LEASES ACT

         The Retail Leases Act 1994 applies to premises under 1,000 square metres that are used to
         conduct businesses specified in a schedule to the Act. Most retail businesses are included in the
         schedule but there are a few exceptions.

         The Act generally applies to leases which have a term of between 6 months and 25 years.

         Under the Act, the lessee must be given a disclosure statement containing certain information
         about the proposed tenancy at least seven days before a retail shop lease is entered into. The




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         lessee has a right to terminate the lease within three months of entering into it if the disclosure
         statement is not given or if it is materially false or misleading.

         Other provisions under the Act are as follows:

                  The landlord cannot ask for key-money.

                  The lease must be for a minimum five-year term. If a shorter term is provided, the
                   tenant can treat the lease as being for the full five years. A shorter term is allowed if a
                   waiver certificate is given by a lawyer not acting for the lessor.

                  When the term of the lease is longer than one year, the landlord must give a notice to the
                   tenant which offers the tenant a renewal or declines to do so within 6 months to
                   12 months before the end of the lease.

                  Rent reviews beyond a specified amount or percentage cannot happen more than once a
                   year and no discretion is permitted to choose more than one method on any one
                   occasion. Ratchet clauses are not permitted (in other words, the rent review must result
                   in a genuinely floating rent, that is, able to go down as well as up). There are provisions
                   relating to what matters are to be taken into account in determining current market rent
                   and the procedure for determining the rent if the parties do not agree.

                  The tenant can ask for a determination of current market rent before exercising an option
                   for renewal. This means that the tenant does not have to exercise an option where the
                   new rent is to be a current market rent „blind‟ as to what the new rent will be. This right
                   begins six months before and ends three months before the last day on which the option
                   can be exercised.

                  The Registrar of Retail Tenancy Disputes is required to assist in resolving disputes
                   through mediation. Unresolved disputes require a certificate from the registrar that
                   mediation has failed to resolve the dispute before other proceedings can be taken in a
                   court or the Fair Trading Tribunal.

         The Act contains other provisions which are helpful for tenants to look at and apply in particular
         circumstance (e.g. provisions relating to compensation for disturbance; assignment and transfer;
         and rent abatement, notices and audit requirements relating to outgoings).

7.5      THE TRUE COST OF RENTAL

         There are many different ways of calculating the rent payable under a lease. One common
         method is to provide for a net rent plus the payment of all „outgoings‟. Where outgoings are
         included, the definition of these given on the lease is very important.

         Outgoings sometimes include only the council rates, water rates and land tax payable on the
         property. In addition, outgoings can also comprise insurances, cleaning, lighting, the
         landowner‟s management costs, advertising and promotion fees and, in some leases, even
         provision for capital replacement after 20 to 30 years.

         Most leases provide for the rental to be varied every one or two years. There is a great variety
         of rental review provisions, the most common being CPI, market review or flat percentage
         increase. Remember, there will be additional stamp duty to pay as the rent increases.




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7.6      THINGS TO CONSIDER BEFORE ENTERING INTO A LEASE

         It is important for any lessor to think carefully about the terms and conditions that should, or
         should not, be included. The following is a checklist of things to be considered when the lease
         is being prepared.

                  The full name of the lessee (i.e. the tenant) - is the lessee renting in the name of an
                   incorporated body or are individuals or partners acting as trustees for an unincorporated
                   association?

                  Details of the premises - address, suite number, floor number, floor area. Are toilets or
                   car parking spaces included? What are the premises to be used for and is access
                   adequate? What amenities are included (e.g. air conditioning) and who is responsible
                   for maintenance?

                  Term of the lease - i e. when does the right to occupy begin and when does it end? Is an
                   option to extend beyond this first term required? How can this option be taken up?

                  Holding over- what rights are given to continue as a tenant when the term of the lease
                   expires? Does the lessee have the option to renew and continue the lease on expiry of
                   the term and, if so, on what terms?

                  Rent and outgoings - what is the present rent? How much can it be increased each year?
                   Is the business required to pay any of the owner‟s outgoings (i.e. rates, insurance,
                   maintenance, land tax, GST, etc)? Is the lessee required to pay for all the outgoings or
                   only a proportion of these?

                  Additions and improvements - is the lessee required to leave or remove any additions,
                   improvements and fixtures made during the term of the lease?

                  Maintenance - who has responsibility for keeping the premises in good repair? Is the
                   lessee to be responsible for repainting the interior? How often?

                  Legal costs and disbursements including stamp duty - stamp duty on the lease and/or
                   additional stamp duty as the rental increases is invariably a lessee‟s expense. Does the
                   lessee also have to pay the lessor‟s legal costs and other disbursements? Are these to be
                   subject to assessment or review?

                  Abatement and destruction - if the building is badly damaged, can the lessee get out of
                   the lease? How much notice must be given? Are there pre-conditions? Will rent
                   payments stop if the business cannot use the building?

                  Cleaning and repairs - does the lessee have to repair or re-carpet the premises now,
                   during or after the lease? What other cleaning and repairs are required?

                  Sub-letting and licensing - is it possible to share the premises with other people? Can
                   the lease be transferred to someone else? Subject to what conditions?

                  Insurance - what insurance must be taken out by the lessee and does the lessor‟s name
                   have to be included on the policy?

                  Indemnities - does the lease make the lessee responsible for all damage or injury
                   occurring on the premises, even if it is the fault of the owner (e.g. inadequate
                   maintenance etc.)? Will insurance cover this?



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                  Default - how inflexible is the lease if the rent is paid late or other breaches of the lease
                   occur? Is a warning given to make good the problem? Is interest payable on overdue
                   rent?

                  Lessor‟s rights - can the lessor terminate the lease prematurely, even if no lease
                   conditions are broken? Under what circumstances can the lessor come onto the premises
                   (e.g. for inspections, renovations or repairs)? How much notice is required?

                  What is the permitted use under the lease? What are the required hours of opening? Of
                   access? Is there an exclusivity of area of operation? 1t is crucial to check that the
                   intended use is permitted under the lease. Some leases will not allow any deviation from
                   the use of premises stated in the lease. This can sometimes result in a lessee not being
                   able to use the premises for a related business use and restrict the opportunity for
                   transferring the lease. For example, even if the business intends to start up selling
                   „country style furniture‟, it would be better to ask for a more general usage description
                   such as „furniture, household appliances and gift store‟.

                  Is the council zoning suitable for the proposed use? Is development approval required
                   and has it been obtained for the intended use? If a previous approval is relied on, what
                   are the conditions of the approval? Prudent inquiry should be made from the local
                   council.

                  Other - careful note should also be taken of the insurance requirements. Sometimes,
                   public liability or other insurance can be difficult to obtain, for example, in the case of
                   takeaway food shops.

                  Where a bond is required from the lessee, it should be considered whether a bank
                   guarantee for the appropriate amount may be obtained instead of the payment of the
                   bond. Is the lessor the registered owner of the premises?

                  Can signs be put up? Are individuals required to guarantee to pay the rent if the
                   organisation cannot? Are legal costs subject to any assessment or review? Will the
                   lease be registered at the Land & Property Information Office to protect the tenancy in
                   case the premises are sold?

7.7      OPTIONS

         7.7.1     Exercise Of Options By Tenants

                   When a tenant has been granted the option to take a further lease, the lease document
                   contains the requirements for the exercise of that option, and the time period in which
                   the option must be exercised. This time period is „of the essence‟, which means that it is
                   important that it is complied with within the specified time or else the option can be lost.
                   If exercised, the option should be exercised by notice in writing.

         7.7.2     OPTION EXERCISE IN CASE OF BREACH

                   Even if the wording of the option does not appear to permit the lessee to exercise an
                   option because of a prior breach, this does not mean that the lessee cannot try to do so in
                   order to obtain the benefits provided by section 133 of the Conveyancing Act.

                   If the lessor believes that the lessee has breached the lease, and is not entitled to exercise
                   the option and be granted a further lease period, the lessor must, within 14 days after
                   receiving the notice of option exercise, serve a notice on the lessee under section 133E



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                   of the Conveyancing Act that specifies each act of omission that the lessee has
                   committed, and states the rights of a lessee under section 133F.

                   If the lessor does not do this, the prior breach will not prevent the exercise of the option
                   from taking effect.

                   After receiving the section 133E notice, the lessee has one month to seek an order from
                   the court for relief under section 133F. The lease will remain in force until the court has
                   decided on the rights of the parties.

7.8      ASSIGNMENT OF THE LEASE

         It is important that the lease contains the right to assign it to some other person or company,
         particularly in circumstances where the business is to be sold. Leases have a variety of
         conditions which control the landowner‟s obligation to agree to this assignment. However, it is
         almost certain that the original lessee will remain liable to the landowner for the remainder of
         the term of the lease. Therefore, if a purchaser becomes bankrupt or absconds, the original
         lessee can still be required to make the lease payments. If possible, a release from this provision
         of the lease should be secured from the lessor at the time the incoming lessee signs the
         assignment.

7.9      ENDING THE LEASE

         Problems may arise at the end of the lease relating to the condition of the premises (e.g. whether
         or not they need to be painted, carpets cleaned, partitioning removed etc.). The lease will
         specify the obligations of the tenant, but these often depend on the condition of the premises at
         the commencement of the lease. For this reason, it is a good idea to collect evidence of the
         original condition of the premises (e.g. photographs of any damaged areas, inventories,
         statements- all signed and dated, preferably by an independent witness) and send copies to the
         agent or owner. Then, if a dispute arises at the end of the lease, there is factual evidence and a
         better chance of getting back any security deposit money lodged with the landowner.

         Except for retail shops, there is no equivalent to the Rental Bond Board for resolving bond
         disputes at the end of a commercial tenancy. It is therefore a good idea to have a dispute
         resolution clause included in the lease (e.g. requiring that the parties go to mediation in the event
         of a dispute).

7.10     CHARGES ASSOCIATED WITH COMMERCIAL LEASES

         7.10.1 Fees

                   Legal fees in respect of leases have been deregulated since 1 July 1994. Usually, a
                   landowner will ask the tenant to pay the costs of the landowner‟s lawyer. If the tenant
                   agrees to this, it is wise to decide on the charge in advance, otherwise the tenant could
                   become liable to meet whatever fee has been agreed upon between the landowner and
                   their lawyer. Until 30 June 1994 when a scale of charges was applicable, the permitted
                   charge was $400 plus 1 percent of the annual rental averaged over the term. This
                   formula could be considered as a reasonable guide as to what a landowner might fairly
                   charge. Under the scale, if a lease was being renewed under an option to renew on the
                   same terms as the original lease, the fees were half of the usual charges.

         7.10.2 Stamp Duty (State Government Tax)

                   State Government stamp duty is calculated at the rate of 35 cents for every $100 of the
                   total rent payable for the full period of the lease. The tenant always pays this.



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         7.10.3 Registration Fees

                   The Land & Property Information Office charges a fee of about $57 to register a lease.
                   Leases for more than three years or containing options should always be registered so
                   they are recorded against the title to the property. If this is not done, there can be
                   problems with purchasers and mortgagees of the property who may be able to ignore an
                   existing tenancy.

         7.10.4 Miscellaneous Charges

                   The lease sometimes requires that the tenant pay for costs relating to obtaining the
                   mortgagee‟s consent to the lease and to produce the title deed to allow registration.
                   Again, it is wise to agree on what this fee could be ahead of the commitment to pay it.
                   The fee charged varies considerably and can be about $250 or more. A charge for
                   photocopying and postage, telephone and sundries is also commonly made (about $30).




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