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Civil Litigation - The Process of Issuing Proceedings in the Court

Civil Litigation – The Process of Issuing Proceedings in the Court

By Article, Commercial & Business

Before issuing proceedings, it is important to remove emotion from the decision and carefully consider the personal and financial implications. Issuing proceedings not only results in further legal fees, but it also becomes difficult to stop what you have begun without there being some adverse costs consequences. Litigation can affect a person’s business interests, employment, public reputation and personal wellbeing. Therefore, it is essential to consider the risk factors involved such as the costs of the litigation and having to potentially pay for the other parties legal costs should the judge’s decision not go your way.

In this article we’ll be looking at what is involved in issuing proceedings in court. From the initial steps of filing a claim, disclosure of information and collection and exchange of evidence, through to the final judgment (and possible appeal), costs and the timeframes involved, understanding the intricacies of this process is crucial for anyone seeking legal resolution.

Timeframes

The timeframe for issuing proceedings varies depending on the complexity of the case and the specific court’s caseload. An experienced defence lawyer will attempt to delay proceedings, which will result in a costly dispute over issues you may have never wanted to deal with but, because the court rules allow it, the other side has introduced them to their advantage. Not only is the process costly, it can takes months or years to reach a final trial date. Parties should be prepared for potential delays and consider their willingness to commit the time required for the legal process.

Commencement of proceedings

Issuing court proceedings commences once a statement of claim is filed in the relevant Queensland court and served on the other party. The claim sets out the details of the dispute, the parties involved, and the relief sought. The other party will then have 28 days to file a defence. From here, both parties will be required to submit disclosure documents, collect and exchange evidence and be required to attend trial. Following this, final judgement will be made and possibly appeals will be filed. Litigation is inherently risky and uncertain because the result is simply not known until judgement is given. Even if we can provide an opinion on prospects, there is ultimately never any guarantee given the nature of the adversarial process.

Trial process

Case management: Once both parties have filed their initial documents, the court may hold case management conferences to streamline the process. These conferences can address various aspects, including narrowing the issues, setting deadlines, and exploring the possibility of settlement.

Discovery: This phase involves the exchange of documents and evidence relevant to the allegations made in the case. Both parties are required to disclose documents that both support their respective claims, but also the other side’s claims, excluding documents covered by legal professional privilege which protects the confidential relationship that exists between a lawyer and their client.

Pre-trial steps: In preparation for trial, parties may engage in pre-trial procedures such as exchanging witness statements and preparing expert reports. These steps help streamline the trial process by ensuring that all relevant information is available and disclosed.

Trial: The trial is the culmination of the proceedings, where each party presents their case before the court. Witnesses may be called to testify, and evidence is presented to support the claims and defences. Evidence may also be presented by way of affidavit – a sworn statement by someone not required to appear in court unless they are required for cross-examination. The trial process can be complex and may involve cross-examination and detailed legal arguments.

Types of judgments

Following the trial, the court will issue a judgment or reserve judgment until a later date. This judgment outlines the court’s decision on the matter, including which party is successful and the relief granted. The judgment may also include orders regarding costs and any other relevant matters. It’s important to note that the judgment may be subject to appeal, which can extend the legal process further.

Judgments can also be achieved without going to trial. Should the other side fail to file a defence, and providing the statement of claim is for a clearly calculated amount, the plaintiff’s lawyer can file for judgment by default to avoid the trial process and proceed to enforcement. Summary judgement can also be applied for, whereby the plaintiff argues the defendant has no real prospect of successfully defending all or part of the claim, and there is no need for trial of the claim.

Appeals: If a party disagrees with the judgment, they may have the right to appeal the decision to a higher court. The appellate process involves reviewing the legal aspects of the case rather than re-evaluating the evidence. Appeals can introduce additional time and costs to the proceedings.

Consult experienced legal professionals:The phrase ‘costs follow the event’ – meaning the successful plaintiff can expect to have their legal costs met – is not a straightforward concept sounding in a guaranteed amount. Ultimately, the awarding of costs is subject to the Court’s discretion and the simple but unavoidable fact of whether the defendant has the money to pay the plaintiff’s costs.

In general, standard costs are awarded, usually reflecting about 50-70 per cent of the total legal fees a plaintiff might incur in taking court action. Indemnity costs – being standard costs plus the balance of legal fees – are awarded only in more serious cases of bad faith, misconduct, or wilful disregard of the court process or the law. The court’s discretion will also take into account whether any formal offers were made to settle the matter before or during the trial process.

Consult experienced legal professionals

Issuing proceedings in a court is a structured process that demands careful planning, legal expertise, and an understanding of the potential costs and timeframes involved. Navigating the legal system can be complex and emotionally demanding, making professional legal advice essential. Legal professionals can guide individuals through the process, ensuring that all procedural requirements are met and all relevant evidence is presented effectively. Contact our team of experienced litigation lawyers at PD Law today for more information on the steps discussed in this article.

Understanding Easements: How to Protect Your Property Rights

Understanding Easements: How to Protect Your Property Rights

By Article, Property Conveyancing

Property easements are a common and important aspect of real estate ownership which are valuable to understand because of how they can impact a property’s use and value, and the rights and responsibilities of landowners.

An easement grants the right of use or access to a specific part of a property for someone who is not the owner. These rights are often granted to neighbours, utility companies or other government entities for various purposes. In this article, we’ll look in more detail at the different types of easements and how easements can protect a property owner, then outline important considerations before agreeing to an easement.

More on the definition of an easement

An easement is a legal right granted to a person or entity that allows them to use, access, or cross someone else’s property for a particular purpose. The lot, person or entity benefiting from the easement is referred to as the ‘dominant tenement’ or beneficiary while the property owner who grants the right is considered the ‘servient tenement’ that is ‘burdened’ by the easement. Easements are generally recorded in the property’s deed or title and are binding on all future owners of the property.

Different types of easements

There are several types of easements that serve various purposes. The most common types include:

Right of way: A right of way easement allows the beneficiary to use a path or driveway on someone else’s land to access their own property, which often occurs where the beneficiary’s property is landlocked or access is limited.

Easement of necessity: This type of easement is granted when a property owner needs access to a public road but lacks any other reasonable means of ingress and egress.

Easement by prescription: Also known as ‘prescriptive easements’, these are acquired through continuous, open, and unchallenged use of another person’s property for a specific period, which varies by jurisdiction.

Easement by express grant: An easement by express grant is voluntarily created and specifically granted by the property owner to another party through a written agreement or deed.

Easement by implication: This type of easement is created by law when it is implied that a property owner would have intended to grant an easement to another party based on the circumstances.

Easement by estoppel: Easements by estoppel occur when a property owner leads someone to believe that they have the right to use their property, and the person relies on this belief to their detriment.

Utility easements: These easements are granted to utility companies, such as power, water, or telecommunication providers, to access and maintain their infrastructure on a property.

Drainage easement: Allows the beneficiary to drain water from their property through another person’s land, common in areas of poor drainage or where the land is low-lying.

Conservation easement: This type of easement restricts the use of someone else’s land to protect its environmental, cultural, or historical values. Often employed by government departments, non-profit organisations and private landowners seeking to preserve natural habitats, heritage sites, or scenic areas.

How easements can protect a property owner

Easements can offer several obvious benefits to property owners, including:

  •  They can be mutually beneficial to neighbouring properties, granting them a legal right to access their land through the servient estate and proactively preventing disputes and road maintenance costs.
  •  In some cases, having an easement on a property can increase its value, especially if it grants access to desirable amenities or scenic views.
  • Easements can prevent neighbouring property owners from building structures or planting trees that encroach on each other’s land.
  • Utility easements ensure access to essential services, such as electricity, water, and sewage, without the need for each property to have separate utility lines.

Considerations before agreeing to an easement

Before granting or agreeing to an easement, property owners should carefully consider a range of factors, including:

Impact on property use: Determine how the easement will affect your property’s current and future use. Consider whether it will restrict your plans for expansion, development, or privacy.

Duration and scope: Understand the specific terms of the easement, including its duration, allowed activities, and any limitations imposed on both parties.

Professional advice: Consult with a legal professional with experience in property law, a conveyancer and/or a property surveyor to ensure you fully understand the legal implications and potential impacts of the proposed easement on your property.

Compensation: If the easement will significantly impact your property’s value or use, consider negotiating fair compensation with the party benefiting from the easement.

Right to modify or terminate: Determine whether the easement can be modified or terminated under certain conditions and what the process entails.

Existing easements: Investigate if there are any existing easements on your property that might affect future agreements.

Benefit from legal advice

As the points above illustrate, there is a lot to consider if your property involves an easement, either existing or proposed. Availing yourself of specialist advice from property lawyers such as our team at PD Law is highly advisable to help clarify the issues involved. While easements can provide shared access to utilities or amenities, they can also impose restrictions on your property’s use and development, so it’s essential to seek professional advice and fully understand the implications to protect your property rights and investments.

Easement FAQs

Q: How is an easement cancelled or removed?

A: By mutual agreement between the beneficiary and the servient owner, or if no agreement can be reached, potentially by a court to resolve the dispute.

Q: How long does an easement last?

A: Indefinitely provided the conditions and restrictions relating to the right are observed and absent of any legal challenge or termination.

Q. Are there formalities associated with easements?

A: Yes, an easement must be created for a specific purpose and be necessary or beneficial for the beneficiary’s land. The easement must also be created in writing and registered on the title of the servient land. The easement must not interfere with the normal use or enjoyment of the servient land by the servient owner or other parties.

Q: Do easements carry over from one owner of the property to the next?

A: Yes, easements usually carry over during property sale or transfer, providing the new owner with the same rights and obligations of the easement, as well as the conditions or restrictions that apply to it.

Q: Must an easement be disclosed in a contract of sale?

A: Yes, because of the fact an easement can affect the value and use of the property, and also places obligations and restrictions on the buyer. Both the seller and the buyer must disclose details of any easements that affect the property – including its type, purpose, restrictions and conditions – to avoid later legal disputes. Failure to disclose an easement can result in legal action, pecuniary penalties and potentially a void sale.

Q: What are the penalties if the conditions of an easement are breached or ignored?

A: Where the conditions or restrictions of the easement are breached, the aggrieved party may seek an injunction (stopping or ordering certain actions), damages or termination of the easement.

Vendor Finance - What You Should Know Before You Get in Too Deep

Vendor Finance – What You Should Know Before You Get in Too Deep

By Article, Property Conveyancing

Vendor finance is a property purchase arrangement in which the seller – rather than a traditional financial institution such as a bank – provides financing to the buyer. This means the buyer pays the purchase price directly to the seller by making regular payments, typically with interest, to the seller over an agreed period.

Vendor finance has emerged as an attractive option for both buyers and sellers but it comes with specific considerations and risks. Those who do not otherwise qualify for a bank loan or finance from another institution may find the arrangement particularly attractive while for a seller, vendor finance can facilitate a quicker sale of their property – but there are pros and cons for both.

In this article, we will explore the essential components of a vendor finance agreement, the advantages and disadvantages from the perspectives of both buyers and sellers, and the potential risks involved in vendor finance transactions.

The essentials of a vendor finance agreement

A vendor finance agreement should be a legally binding contract that outlines the terms and conditions of the transaction. It typically includes the following key components:

Purchase price: The agreed-upon purchase price for the property.

Payment terms: The schedule and amount of payments the buyer will make to the seller, including any interest charged on the outstanding balance.

Interest rate: If applicable, the interest rate to be charged on the unpaid balance.
Duration of agreement: The length of time over which the buyer will make payments to the seller.

Title transfer: Details on when the property title will be transferred to the buyer (usually after the final payment).

Default provisions: The actions to be taken if either party fails to fulfil their obligations under the agreement.

Property condition: A statement of the property’s condition and any warranties or guarantees provided by the seller.

Rights and responsibilities: The rights and responsibilities of both the buyer and the seller during the term of the agreement.

Termination clause: Conditions under which either party can terminate the agreement.

Some of the pros and cons of vendor finance for buyers and sellers

Pros for buyers:

  • Buyers with limited access to conventional financing can still purchase a property through vendor finance.
  • Vendor finance deals can be quicker and involve less paperwork than the typical mortgage processes.
  • Buyers may have more flexibility for negotiation on the terms of the agreement with the seller.

Cons for buyers:

  • Vendor finance agreements may come with higher interest rates compared with bank loans.
  • If the buyer defaults on payments, they could risk losing the property via repossession and any payments made.
  • A buyer using vendor finance lacks the same level of consumer protection as a person with a typical bank loan, meaning they may not be able to dispute a charge, re-negotiate loan terms, or seek mediation or arbitration in the event of a dispute.

Pros for sellers:

  • Offering vendor finance can attract a larger pool of potential buyers, including those unable to secure traditional financing.
  • Sellers receive regular payments, which can provide a steady income stream.
  • Vendor finance can help sellers sell their property more quickly, especially in a slow market.

Cons for sellers:

  • If the buyer defaults, the seller may need to repossess the property and handle legal proceedings.
  •  In the event of a buyer default, the seller may lose both the property and any payments received.
  • Sellers may face limited access to funds until the full purchase price is paid. This may limit their ability to reinvest in other properties.

Summary of the risks involved in vendor finance arrangements

The most significant risk for both buyers and sellers in vendor finance is the potential for default. If the buyer fails to make payments, the seller may need to take legal action to regain possession of the property. Additionally, in a changing market, the property’s value may fluctuate during the agreement, affecting both parties’ interests.

Vendor finance agreements can be legally complex and require careful drafting to protect the rights and interests of both parties. A buyer should conduct thorough due diligence to ensure the property’s condition and title are clear, reducing the risk of unforeseen issues.

Consult experienced legal professionals before considering vendor finance

While vendor finance is a viable alternative for both buyers and sellers in conducting a real estate transaction outside of typical financing arrangements, it carries inherent risks through the possibility of default, fluctuating property values and legal complexities. Before engaging in vendor finance, both buyers and sellers should seek legal advice to make an informed decision on whether the financing arrangement is right for them.

At PD Law we regularly advise clients on the matters raised in this article about vendor finance and draft agreements to cover the transaction – call us today for an initial discussion if you plan to enter into such an arrangement.

Understanding the Benefits of Creating an Enduring Power of Attorney

Understanding the Benefits of Creating an Enduring Power of Attorney

By Estate Planning, Article

An enduring power of attorney (EPOA) is an important legal document that appoints another person or persons to make crucial life decisions for someone if and when they lose capacity to make such decisions for themselves.

While making an EPOA is particularly relevant for those of advancing years who may become vulnerable to conditions such as dementia, a person can potentially lose capacity to make life and financial decisions at any stage of life. A terrible car accident, a stroke or some other debilitating condition can rob a person of essential capacity.

The chief benefit of making an EPOA while you (the principal) have full mental faculty is that the document provides some control over how your financial and personal affairs will be conducted once you lose capacity, rather than leaving such decisions to the public guardian or the courts to make.

What is an EPOA empowered to do?

An EPOA can be appointed to manage both your financial matters and/or your personal and health matters.

An attorney empowered to make financial decisions on the principal’s behalf can do things such as pay bills, prepare tax returns, manage investments and deal with property. An attorney appointed to make personal and health matters can make decisions about where the principal will live and who with, as well as certain medical decisions, including appropriate treatment options and medicines.

It’s important to note that the principal may limit the power of the attorney in the EPOA document. A clause in the document may prevent an attorney appointed to manage financial affairs from selling the family home, for instance, or require them to consult other family members before acting. A person may also appoint two or more attorneys in the EPOA, ensuring the power of each attorney is in check to the other attorney/s.

A person appointed as an attorney has important responsibilities to the principal, including:

  • keeping accurate records of financial and legal transactions;
  • keeping the principal’s property separate from the attorney’s;
  • obtaining professional financial and/or taxation advice on the principal’s assets, particularly where significant assets or complex financial arrangements are involved;
  • avoiding disclosure of any confidential information while acting as attorney, unless authorised by the principal.

Who is appropriate as an attorney?

A person appointed to carry out the duties of an attorney needs to be a responsible person trusted by the person making the EPOA, such as a family member, close family friend, or trusted, long-term professional such as an accountant, financial adviser or lawyer. Ideally an attorney appointed to make financial decisions will be someone with experience or understanding of such matters.

There are certain requirements for a person to be appointed under an EPOA:

  • the person is at least 18 years;
  • the person is not a paid carer, health provider or a residential service provider for the principal; and
  • for an EPOA including financial matters, the person is not bankrupt or taking advantage of the laws of bankruptcy or similar legislation.

When does an EPOA take effect?

For personal matters, including health matters, an EPOA only takes effect when the principal loses capacity to make those decisions independently. For financial matters, a principal can specify in the document when, and under what circumstances, the attorney’s power can be exercised. Where an EPOA is silent about when the power to make financial decision commences, the attorney’s power is effectual immediately after the EPOA is validly executed.

In the event that the attorney’s power to make a decision depends on the principal having impaired capacity for that matter, a person dealing with the attorney may ask for evidence of the principal’s impaired capacity, such as a medical certificate. If a person is concerned about a person exercising powers under an EPOA, they may apply to the Queensland Civil and Administrative Tribunal or the Supreme Court for a declaration about a principal’s capacity and about whether an attorney’s power has commenced.

The importance of good legal advice

A person considering making an EPOA should seek the advice of experienced legal professionals such as our team at PD Law. We can provide greater detail on your selection of an attorney or attorneys as well as frame this important document in a way which meets your needs and addresses your concerns about how your affairs will be managed in the event you lose capacity to make these important decisions. Contact us today for an initial chat about how we can help you with enduring power of attorney.

So You’ve Purchased Your First Commercial Investment - What Now?

So You’ve Purchased Your First Commercial Investment – What Now?

By Commercial & Business, Article

Once a buyer has made the decision to commit to the purchase of a commercial property there are a number of important steps to take during the settlement and post-settlement phases.

Settlement of commercial property generally takes longer than the typical 30-day settlement period for residential properties because of there are considerably more issues involved in handover – from financing and due diligence, to reviewing existing leases on the property and other documents associated with the asset.

We’ll take a closer look at some of these formalities in this article which our commercial property legal experts at PD Law have ample experience and expertise in.

The due diligence process

Once the contract to purchase has been agreed to between seller and buyer, we’ll provide you with a purchase pack that contains all key documentation including the contract.

It’s always advisable for due diligence to be made a condition of the contract so that the buyer can conduct more extensive checks to make sure the property will be commercially viable.

Searches on council rates, zoning and business use approvals for the site, building and pest inspection reports, equipment testing reports (air-conditioning, fire prevention, etc) as well as lease inquiries and whether the property is within or comprises a body corporate, are examples of the information a buyer should be in possession of before the deal is complete. Additionally, a land tax search and obtainment of a land tax clearance certificate is necessary to determine whether this impost is owing on the property and whether it needs to be accounted for in the settlement price.

Due diligence provides an opportunity for the buyer to terminate the contract and have the deposit refunded if the information produced is not to their satisfaction.

Leases and service contracts

One of the most important issues to deal with during the settlement process is reviewing any existing lease or leases entered into by the previous owner, as well as service contracts. It is crucial that one of our experts at PD Law, for example, review such lease agreements as part of the due diligence process or as a condition of the contract to ensure they do not contain clauses which create onerous or unusual obligations for the new landlord.

The items scheduled in a typical commercial property contract in Queensland will provide for disclosure of any leases, including the name of the tenant, the lease term, whether there are any options for the tenant to extend the lease, the rent payable and the use of the property by the tenant.

It’s important for the buyer to create diary reminders of the important dates applicable to the lease, such as expiry or when options for renewal are activated.

The seller is required to give a copy of all leases, as well as a statement it has done so, to the buyer after the contract is signed. The buyer has seven days to terminate the contract if they are not satisfied with the terms and conditions of any lease. If the buyer does not terminate the contract, they are bound by the disclosed leases, after completion of the contract.

The buyer is entitled to terminate the contract at any time before settlement, even if the contract is unconditional, if information in the lease schedule – such as the amount of rent to be paid by the tenant or the period of the lease, for example – is incorrect.

Additionally, a seller cannot – without the consent of the buyer – accept a surrender of lease, grant a new lease, vary an existing lease, assign an existing lease, or negotiate or set new rent in breach of the contract.

If the tenant had paid rent in advance to the seller, the sale price of the property will be reduced by the outstanding amount. If the tenant is in arrears, the seller has the responsibility for retrieving the outstanding amount from the tenant after settlement. The seller also provides the buyer with a Notice of Attornment which the buyer gives to the tenant after settlement, confirming sale of the property and directing the tenant to pay future rent to the new owner.

If the property is subject to any service contracts (for maintenance and cleaning, for example), the terms and conditions of those contracts should also be reviewed as part of the due diligence process with the costs considered in the overall market value of the property.

Getting other documentation in order

An important aspect of the settlement period is ensuring all document relating to the property are reviewed. These documents include the building’s certificate of occupancy (formerly certificate of classification, providing information about the building’s class; how the building can be used; ongoing maintenance requirements; fire safety; other special requirements), the building’s plans and drawings, documents to manage tax (such as depreciation) and lease documents (as discussed above).

Depending on the business structure used to buy the commercial property (partnership, company, trust, etc) a buyer should also update their will to reflect the significance of the asset and provide certainty to beneficiaries about how it will be handled if something happens to the owner.

The buyer should contact their financier one month after registration to obtain a registration confirmation certificate. If a financier was used for the purchase, the buyer’s legal representative can send this once received.

Rely on expert advice

At PD Law seeing through commercial property transactions to completion is a specialty of our legal professionals. From an initial discussion about the risks involved in investing in the commercial asset through the contract, settlement, and post-settlement considerations addressed in this article, we can help streamline the process for the would-be commercial property owner. Contact us today to talk through your commercial property investment.

Essential Checklist for Buying Commercial Property - Continued

Essential Checklist for Buying Commercial Property – Continued

By Article, Commercial & Business

This article follows on from our recent post providing a checklist of essential things to do when buying a commercial property, this time dealing with the important issues of financing, risk and GST implications.

Commercial property can be a lucrative investment but it’s important to do the necessary groundwork before the purchase to reduce your risk and other potential difficulties.

The importance of finance

A major component in the process of acquiring a commercial property is organising finance well before the contract-signing stage, such as a loan covering the purchase price as well as GST, stamp duty, legal fees and any others costs associated with the transaction. It’s important for a would-be owner to understand what their loan repayments will be before undertaking more detailed due diligence on the property. A risk and return assessment should be conducted with a financial adviser or mortgage broker.

If the buyer needs a loan to acquire the property, the contract will likely be subject to finance approval, allowing the seller to terminate the deal should financing not be secured. This condition will usually be reflected in a ‘finance’ section of the contract, providing a date by which the finance condition is to be complied with – usually 14 or 21 days from the date the contact is signed by all parties.

It should be noted that commercial property is generally considered a riskier investment when compared with residential property due to its exposure to economic slumps and fluctuations. Commercial borrowers do not have the same protection as home buyers. Where a buyer of a residential property can borrow up to 90 per cent of the purchase price, most lenders require borrowers for a commercial property to have a minimum contribution of 30 per cent, meaning they will consider lending up to 70 per cent of the property’s value. Lender’s mortgage insurance is also not available for commercial property owners so a sufficient upfront deposit or equity is essential to secure the loan.

A key consideration for a lender to a would-be buyer is the commercial property’s ability to generate stable rental income from tenants. This can be demonstrated through the lease agreement with the current tenant, showing that the rent can cover the loan repayments or, alternatively, through a profit and loss forecast showing that the loan will allow your business to earn additional income sufficient to cover the repayments.

A borrower for commercial property will often need to provide a residential property as security for the loan, while most bank lenders will also insist on a General Security Agreement (GSA) over the property and any and all of the business’ assets. This requirement may be waived if it can shown income generated by the property will service the debt.

Risks associated with commercial property

The question of risk in buying commercial property is generally a reference to insurance. In many cases, taking our commercial property insurance is required before finance can be secured to purchase the asset.

The standard conditions of most commercial property contracts in Queensland state the property is at the risk of the buyer from 5pm on the next business day after a contract has been signed by both parties. A potential buyer should, therefore, arrange an insurance cover note for the property as early as possible. Likewise, a seller should maintain the existing insurance on the property until it is sold, as security against the possibility the property is not insured by either party and then becomes irreparably damaged after a contract is signed but before it becomes unconditional.

Other risks also need to be considered by a commercial property owner in the event they became unable to make mortgage payments, or in the case of a tenant defaulting by going into receivership. Life insurance, income protection or specific property insurance may be required to mitigate these realistic possibilities.

Consider how much GST adds to the purchase price

Australia’s goods and services tax needs to be considered in any property transaction, with attention paid to whether the purchase price for the asset includes GST. The GST rate for commercial transactions is currently 10 per cent. In most cases, the GST payable on the sale of property is included in the sale price and is paid by the seller.

A seller’s obligation to pay GST will generally depend on whether they are registered – or are required to be registered – for tax purposes. If registered for GST purposes, the seller is obliged to pay GST unless some special exemption applies. A buyer who is registered for GST and intends to use the property for business purposes can claim that tax component in their next business activity statement, though the requirement to pay it upfront can result in a cash flow problem in the short term.

A commercial property sale will generally be exempt from GST if the business is sold as a ‘going concern’, meaning the seller is selling an enterprise, including any assets used in that enterprise, to the buyer. Partial GST may also be paid under the Margin Scheme, an alternative way of working out the GST to be paid when a commercial property is sold as part of a business.

If a buyer purchases a commercial property where there is a lease agreement in place, they may be required to pay GST on the rental income from the tenant.

Stamp duty: A buyer should also keep in mind this state-based tax on the purchase, to be paid either on the basis of the unencumbered value of the property or on the basis of the consideration (the payment the buyer agrees to make) for the property. The dutiable value – the higher amount of the two values listed above – is the stamp duty the buyer will have to pay on the transaction.

Speak with commercial law specialists

For any of the issues raised in this article, buyers should not only contact commercial property specialists such as mortgage brokers but also experts in commercial and property law such as our team at PD Law. From the terms of the contract to what you should know before arranging financing, assessing the risks involved in making the investment and working out GST and other tax obligations, we can provide clear advice and expert guidance through to completion of the deal. Contact us today for an initial discussion.

What are the Key Considerations When it Comes to Buying a Small Business

What are the Key Considerations When it Comes to Buying a Small Business

By Commercial & Business, Article

For many people buying a small business is their most viable path to a desired life working for themselves, compared with the riskier proposition of starting a business from scratch.

In this article, we’ll outline some of the advantages and disadvantages of buying a small business, the benefits of various entities used to purchase the business, the wisdom of using a consultant during the purchase process, and the importance of the due diligence process both before and after signing the contract.

Discussing these issues with experienced legal professionals is a sensible course of action to check all the necessary steps are taken to make the right decision.

Advantages and disadvantages of owning a small business

Notable advantages to purchasing an existing small business include:

Cash flow: An established, profitable business can produce immediate financial returns and provide records that can be used to attract other investors or partners.

Clients and customers: A well-run business has an established client base which a committed new owner can build on and expand.

Plant and equipment: Depending on the proposed deal, essential equipment used to operate the business can be part of the purchase.

Goodwill: A well-established venture will have a ‘good name’ which becomes part of its value when it comes time to on-sell the business.

Among some of the common disadvantages of purchasing a small businesses are:

It may not be a ‘going concern’: If establishment of the business is incomplete and needs more funds for equipment or fit-outs, for example, this can be an immediate financial drain on the new owner.

Existing debt: Depending on the structure of the deal, a new owner may need to assume the former owner’s debts and other liabilities, and pay existing debtors on time.

Fees and charges: Besides the purchase price, fees for legal and accounting services need to be accounted for, as well as other expenses such as stamp or transfer duty.

Loyalty to former owner: It’s in the nature of small business that some proprietors will develop a loyal following which may not continue with the new owner.

Overstated goodwill: The concept of goodwill is a notoriously difficult concept to value and can be overstated by a prospective seller to inflate the sale price.

Locked-in contracts: Part of due diligence (discussed below) in purchasing a small business is to check whether the enterprise is locked in to long-terms contracts with suppliers, maintenance/cleaning or other services, which might be on unfavourable terms for the business.

Which structure should be used to buy the business

There are also advantages and disadvantages to the different business structures used to purchase and run the enterprise, be it as a sole trader or a company. Business registration, tax, intellectual property and other legal or financial obligations all differ depending on business structure, while the size and type of the business may dictate the best structure for owning the entity.

While operating as a sole trader offers the owner control and nimbleness to make necessary changes in the business, the chief drawbacks are personal liability for business debts and the possibility of losing personal assets if the business fails. Tax will also be charged at the individual’s marginal rate rather than a lower corporate rate. A partnership brings similar benefits and risks.

A company, by contrast, is a separate legal entity and losses will be carried by shareholders in the entity rather than the individual owner. Legal dealings are conducted in the company’s name, shares may be transferred to other people, and the entity is taxed at the lower company rate.

There are a variety of other structures, each of which has its own pros and cons, depending on what buyers are looking to achieve, how much control and protection they’d like, as well as how easily they can exit, to name a few.

The role of consultants

Engaging a consultant at the outset once you’ve decided to purchase a small business can save you time and stress. An experienced consultant can help a prospective owner develop a business plan, assess the financial and operational fundamentals of the business, help re-shape its focus, and create a marketing/public relations strategy and advertising campaign. Consultants may have different skill sets, or combine a number of skills in accounting, financial arrangements and legal obligations in one service.

Importance of the due diligence process

Doing the necessary research on a business that is up for sale is a crucial stage both in the lead-up to signing the contract and afterwards.

Financial records, legal documents and details of how the business operates – including its contracts and leases, existing deals with suppliers, its staffing levels, codes of conduct and human resources records, assets, inventory, licences, permits and liabilities – should all be discovered during this period in order to make an informed decision.

Due diligence helps a buyer to determine whether the business is properly valued and uncover any issues that could affect profitability now or into the future. Having a trusted, independent person examine the business’ financial records is perhaps the most important aspect of due diligence. This step should comprise close checking of the past three-to-five years of the business’ financials including tax returns, BAS, accounts receivable and payable records, balance sheets, profit and loss records, cash flow statements and sales records. This process will help answer the question of whether the business has outstanding debts on assets or to external suppliers.

Other costs

Buying a small business will attract expenses such as transfer duty on the purchase. The would-be owner needs to budget for this outlay as well as licence or lease assignment fees, bank loan fees (bank guarantee advice), legal fees, accountant fees and set-up costs.

Consult with experienced legal professionals

At PD Law we have helped many people into business ownership by making the processes described above easier to navigate. If you have a small business in your sights, we can assist with the discovery process and ensure the elements discussed in this article are methodically checked off so that a judicious decision is made and the business gets off to a flying start under new management.

Essential Checklist for Buying Commercial Property

Essential Checklist for Buying Commercial Property

By Article, Commercial & Business

Investing in commercial property can be a lucrative decision provided the asset is well located and the right steps are taken in the lead-up to the purchase. From doing due diligence on the property’s viability as a commercial premises to reviewing the lease with the tenant and understanding the tax implications of the purchase given your business structure, there is a lot to get right to realise your return on investment.

In this post, we’ll try and address some of these key considerations to help make the process clearer, while reminding that the advice and guidance of a legal firm with real-world experience in the buying and leasing of commercial property can be essential to getting it right before committing time and money.

Business structures and tax implications

Before embarking on a commercial property investment it’s important to understand how your business structure will affect the tax payable on the asset – which may determine whether it is worth going forward with the investment or not.

Individuals: Owning the property in your own name can be the simplest way to secure a commercial asset, when compared with business other structures. Rental income is incorporated as part of your assessable income and taxed at your marginal tax rate. This means negative gearing losses on the property may be offset against your income.

Like owning residential property, tax must be paid on any capital gain made from the sale of a commercial property, which will be added to the individual’s assessable income. Goods and services tax (GST) may also be charged on the sale price if the ‘going concern’ assumption isn’t satisfied – this means that both the buyer and the seller are registered for GST, that there is a current lease in place on the property, and that everything necessary is being done to support the ongoing operation of the business. The buyer then pays GST on one-eleventh of the sale price and claims credits on purchases that relate to selling the property.

If you’ve owned the property as an individual (or as part of a partnership or a trust – see below) for at least 12 months, you may be eligible to discount your capital gain by 50 per cent.

Partnership: Two or more partners who carry on a business in common with a view to profit are also considered a partnership for tax purposes if they own a commercial property together. Each partner, therefore, claims a share of any net profit or loss incurred by the partnership so that if its commercial property is negatively geared, each partner may offset their share of the net loss against their own income. If each partner is an individual or owns their share through a trust, the 50 per cent CGT discount will apply if the property is sold and a capital gain is made, provided that the property has been held for at least 12 months before its sale.

Company: At the outset it should be noted that commercial property owned by a company becomes one of its assets and therefore can become the subject of civil litigation or bankruptcy proceedings. But signficantly, tax paid on the property’s net rental income is charged at the corporate tax rate, which is lower than a high-earning individual’s marginal tax rate (inclusive of the Medicare levy). Capital gains are also taxed at 30 per cent and some companies may be eligible for small business CGT concessions.

Negative gearing losses on the property, however, must be absorbed by the company and can’t be employed to offset another entity’s income. The loss, however, can be carried forward indefinitely or used to offset the company’s future income and capital gain if the property is sold.

Property held within a company structure must also pay GST on one-eleventh of a commercial property’s sale price, but can claim GST credits on purchases that relate to selling the property.

Trust: Commercial property can be held by a unit trust, family discretionary trust or hybrid trust. Property held within a discretionary trust is generally protected in the event of litigation against a beneficiary of the trust.

Another key benefit of commercial property held within a trust structure is taxation because the trustee can distribute different amounts of net rental income to different beneficiaries based on their tax position each year, minimising each beneficiary’s tax liability. Like individuals and partnerships, if the trust makes a capital gain after owning the property for at least 12 months before it is sold, the 50 per cent CGT discount will be available if the capital gain is distributed to an individual or another trust.

Self-managed super fund (SMSF): Using this entity for purchasing commercial property is considered complex but the pay-off is the substantial tax benefit available. Rental income from the property is taxed at 15 per cent when held by an SMSF, and drops to zero at the time the fund moves into its pension-paying phase.

SMSFs can claim a capital gains tax discount of 33 per cent while the fund is in the accumulation period after the asset has been held by the fund for more than 12 months. The fund pays 15 per cent tax on two-thirds of the capital gain, equal to 10 per cent of the total capital gain. Negative gearing the property under the SMSF structure is not as effective as for an individual, because the losses are only offset against income taxed at 15 per cent during the accumulating phase.

SMSF entities must be registered for GST if they own a commercial property and annual turnover exceeds $75,000. GST must be paid on one-eleventh of the sale price, but GST credits can be claimed on any purchases that relate to selling the property.

It’s important to note tax deductions can generally be claimed by commercial property owners under the structures discussed above. These include interest paid on the loan used to purchase the property, travel costs related to attending the property, repair, maintenance and property management expenses, and depreciation of the asset.

Seek expert tax advice

What we cover here is general only in nature, subject to a number of exceptions and qualifications, and also invariable changes in the law. Suffice to say it is vital that you take advice from your accountant before settling on the structure you intend to use.

The importance of due diligence

The due diligence process is crucial before an investment in commercial property for a buyer to be fully aware of the technical, legal, financial, planning, environmental and risk management issues associated with the asset. Areas requiring close attention before signing a contract of sale include:

Condition of the building: An established service industry to commercial property investors is building consultants, who can be contracted to complete a comprehensive technical report assessing the asset’s structure, from façade and walls (external and internal), roof and guttering, ramps and stairs, entry lobbies, floors & floor finishes (carpets, tiling, etc.), ceilings, stairways and amenities such as kitchenettes.

The report can also assess any mechanical and electrical systems such as lifts, escalators, switchboards and airconditioning, and also address fire protection systems, water supply, sewerage and stormwater systems.

Location: This is perhaps the most important of all considerations for a commercial property and requires a prospective buyer asking questions including:

  • Is the building located in a good area with foot traffic, parking and access to public transport?
  • Are there zoning regulations which will restrict what commercial use the property can be put to?
  • Is the property close to amenities such as schools, transport and other shops?
  • Are there direct competitors close by?

Planning and environment: This step involves discovery of current zoning and height restrictions to confirm the property can be used for the commercial purpose you intend; reviewing changes made to the original development application; obtaining copies of original occupation and development certificates; fire safety statements; recent environmental or heritage assessments, and any existing contamination issues (e.g. asbestos, etc.).

If buying vacant commercial land, a buyer should obtain a signed written notice from the seller or agent stating that the land is of a commercial nature and is not capable of being used for residential purposes, now or into the future.

Financial: A financial assessment includes examining an existing lease of the building and, if not leased, the current market conditions that determine the likely value and potential of renting the property.

Assessing lease arrangements involves sourcing lease documents from either the current owner or the tenant to discover:

  • expiry dates and options to renew, including the rent review process and its frequency;
  • whether there are planning approvals granted prior to entry into the lease;
  • that there are no ‘first rights of refusal’ to purchase;
  • that there are no other restrictions within leases that might affect the sale or your capacity to operate or expand the building;
  • details of any bonds/deposits/bank or personal security guarantees held;
  • details of tenant’s agreements regarding maintenance and repair;
  • details of any caveats lodged;
  • whether the tenant/s are in arrears;
  • whether GST is being charged (longer-term leases may not include this provision, which may affect the buyer’s decision to purchase).

Title: The land title of the property should be checked to see there are no liens or encumbrances on the property, no easements or rights of way, and that it is registered in the correct name.

Leases: A would-be buyer should first check the lease of any existing tenant/s to determine both its length and its terms. A lengthy lease on favourable terms to the tenant may be influential on the decision to purchase. Likewise, the need to find new tenants could be off-putting. The length of the lease may also affect the buyer’s ability to renovate and alter the property.

Insurance: Any commercial property should be covered for public liability, contents and the risks of fire, flood, theft and vandalism. If finance is needed to purchase the property, the lender will likely require a policy that provides coverage equal or greater than the value of the loan.

Seek expert legal advice

Legal professionals with specialist knowledge of purchasing commercial property can make the due diligence process described above far more streamlined and stress-free. At PD Law, we can check existing leases, caveats and covenants over the property, title details, existing maintenance contracts, insurance policies and all of the many other details required to make a fully informed investment decision on commercial property.

For more information on any of the material covered in this article, contact PD Law today for a comprehensive initial discussion.

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