Mission, Purpose, Focus

In preparing for this weeks newsletter, I watched a show on Fox News last night. I don’t watch much of the Fox news channels, but I turned on and found Peter Credland and Alan Jones interviewing in pair with two visually impaired solicitors. Again, I don’t watch much to do with the success stories of visually impaired people, However, one of the gentlemen caught my attention.

Alan Jones interviewed Justice Richard Bernsteine of the Supreme Court of Michigan. Justice Bernsteine is the first totally blind person to be appointed to a Supreme Court anywhere in the world. Some might think that in this age of political correctness I could understand such an appointment, however it has nothing to do with political correctness.

In America, a justice of the Supreme Court must be elected. This is in the country of the great democracy where even the dogcatcher is elected by the local community. Justice Bernsteine was able to canvass 83 counties to successfully obtain appointment in the Supreme Court. Infact, he didn’t just win, he won by 10 percentage points. In any polars language, this is a landslide.

This means that, the people of Michigan were able to look past his disability and appoint him to be one of the seven judges in the Supreme Court who oversees capital offenses. That state may have just reached the point of enlightenment!

I was most interested to note was his comments about success. Justice Bernsteine says that success can be obtained if you have a mission, purpose and a focus in what you’re trying to achieve. Justice Bernsteine wanted to do law. He stated in the interview that, when he arrived at university he said a prayer that, if he was successful in obtaining a law degree, you would dedicate yourself to those who are less fortunate.

This mission and purpose allowed him to focus his attention to obtaining a law degree. Yet sixty-five law firms rejected his application for a job. So he joined his father’s law firm and set up the public service division of the firm where they offered pro bono legal services to the community. It’s allowed him to run cases which would normally not be run because the people did not have the finance to conduct the legal proceedings. It allowed him to set precedents and seek out rulings that have never been sought before.

It’s a reminder to us all. We need to set a mission and purpose before we go forward. Without a mission and purpose, when the going gets tough, we just don’t get going. If you have a mission and a purpose, it allows you to set a pathway and to focus on what needs to be done to succeed.

The simple question of this week’s conundrum is; Do you have a purpose? If you examine your failures in the past, you will realise that you were never committed because there was no purpose to what you were doing. Find your mission and purpose, and you find your voice in the pathway to success!

 

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

Does your strata manager see you as an enemy?

I thought the hatred between a profession and client is limited to the legal profession. One of Leverages solicitors many years ago was taught in the first class at the College of Law that, you should see your client is your first enemy. We don’t subscribe to that theory, however it is well accepted in the legal fraternity.

In recent times I’ve come to accept that strata managing agents think other agents in the same light. They think a strata manager as purely managing a construct in a set of rules. They’re so desensitized that they do not care about people who live within.

Leverage has a current matter where the client purchased the property in December last year. Prior to purchasing the property, he became aware of problems with his bathroom. In discussions with the strata manager, it was accepted this was common property and the repairs would have to be made.

As a means of providing time to have the repairs undertaken, our client sensibly rented a property for two months. By the middle of February, nothing had been done regarding the repairs. It was not until Leverage requested correspondence from the strata managing agent regarding the insurance claim that something was done. Our client had been advised that the insurance had rejected the repairs. We simply requested a copy of the rejection letter. The strata managing agent wrote back to us and advised that they had not advised our client that the insurer had rejected, but that the insurance would reject it. They then lodged the claim.

It took a further 28 days for the insurance assessor to do the job. Well, I should say it took them 14 days to get the assessors work completed. It was 28 days later we contacted the estate manager to chase up the assessment. The agent told our client that they did not have the assessment. Interestingly enough, after Leverage made a phone call to the assessor, he had advised it had been with the agent for over 14 days.

We are now in the middle of May come and they only just called the meeting. Our client has had to move out of the rental premises because the landlord was moving in after two months, and has taken up residence. He is currently showering outside in a portable shower. This will be comfortable at the beginning of winter. It seems to be completely dispassionate of the estate manager considering both the client, who is a single dad, is visually impaired and so is his blind son showering outside on the common property.

We wrote to the strata manager regarding our concerns. We indicated that complaints should be lodged to the office of Fair Trading regarding their lack of fitness to hold a license. The response we got from their licensee in charge was “Bring it on, do you want a telephone number”.

The strata managing agent suffers nothing when organising maintenance repairs for a strata scheme. The owners corporation must pay for common property as set out in section 106 of the Strata Scheme Management Act 2015. It costs them nothing to be compassionate, and to ensure that things are moved quickly to make it comfortable where necessary.

I leave it to you to judge, the strata manager in their role in this person’s discomfort. If this was an isolated case, we would not write about it here. Unfortunately, strata managers have forgotten that within those walls of a strata scheme there lives a human. It is their home and the shelter over their head. My client has been showering like a homeless person for over two months.

Is this the strata management industry that we want?

 

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

Agents lodging caveats

Leverage has observed a recent trend whereby real estate agents protect their commission by lodging caveats against title. Agents are doing this to protect their commission. The agent is of the opinion that, if they can hold up settlement until their commission is paid, they will be paid from the proceeds of sale.

This is a totally unlawful practice unless the agent holds any interest in a property. I’ll return to the concept of interests in a moment, but it is suffice to say that the standard agency agreement within the community is not halted interest. Therefore, the agent is lodging a caveat in on title as a strategy to hold up settlement, hoping that the money will be paid.

Let’s examine that!

The Real Property Act 1900 permits any person who holds an interest in title to lodge a caveat. Caveat comes from the Latin word “warning”. Hence, the concept of a caveat is to warn the world of another person’s interest in the property. These interests might be for example a interest in fee simple, a mortgage, lease, easement or covenant. An agency agreement does not create such an interest.

If a covenant is lodged on title, a registered proprietor can issue elapsing notice, which means that caveat will lapse within 21 days unless the caveator (The person lodging the caveat) seeks an order from the Supreme Court. This means that, the agent is lodging the caveat close to settlement so the three-week elapsing notice won’t be enough to get the property settled on time. They are hoping that, if the property needs to settle, the elapsing notice won’t be in time and they will have no need to go to the Supreme Court because of the vendor’s requirement to sell the property.

Sounds like a good idea! It comes with many risks. The agent owes a fiduciary duty to the vendor acting in their best interests. Acting in such a way leaves them liable to any damages which they may suffer. Moreover, it’s a breach of the code of practice in relation to the requirement that the agent must act fairly, honestly and professionally. Who knows who therefore runs the risk that, even if they obtain the commission, they can be sued by the vendor for any losses and be investigated by fair trading for breach of the code of practice.

The only way that a caveat it can be lodged is if a registerable interest is created. An agency agreement would have to be prepared which gives such an interest in title. The current standards agency agreements in the market place do not give the agent that form of power.

Therefore, if you are looking into lodging caveat, you run enormous risks of litigation and, I believe most importantly, your license may be in jeopardy. It’s the risk return balance which the agent will have to reach. Leverage has a matter at the moment where the caveat has been lodged which will essentially deprive him of his commission.

It might be a clever strategy, but it comes with enormous risk.

 

 

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

Crypto

I was introduced to cryptocurrency about eleven years ago. Initially, I thought crypto was something out of superman and short for Kryptonite. I also thought it was a gimmick. I was wrong!

Cryptocurrency, digital currency or virtual currency are here to stay. Bitcoin has established its own economy and now it is being used across the world as a form of currency to trade in tangible items.

This year, a property in Mt Druitt was offered for sale, for an amount of dollars or for forty-five Bitcoin. See the attached link.

https://au.news.yahoo.com/mt-druitt-property-on-the-market-for-bitcoin-38591922.html

In light of this new evolution, Leverage is conducting free Cryptocurrency seminars and has also designed a Cryptocurrency course. This stuff is real, it’s here now and it’s part of the future – and real estate is a big part of the how and where Cryptocurrency will play-out.

In future articles, we will discuss how such a Crypto sale would occur.

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

Managing NCAT

Leverage has just been requested to provide a training session for a regional agent’s association in the area of advocacy. This was not surprising to Leverage, since sooner or later agents were going to have to catch up with the tenants.

The government trains and pays for tenant’s advocates. This means that, property managers are opposed by trained advocates when attending NCAT. Landlords are already at a disadvantage at NCAT, and now that tenants have advocates, they have an unassailable lead.

This regional association wants Leverage to train their property managers in the skills of advocacy as if they were solicitors. Leverage had already developed a course because it was only a matter of time. The course will cover:

  • The principles of running residential tenancy matters before NCAT;
  • Strategies on how to prepare a file;
  • Preparation of submissions; and
  • Techniques of conducting advocacy in front of NCAT.

This is an exciting step into the future where property managers will need to compete and succeed against tenant’s advocates.

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

Wood Nibblers in the Roof

We have been expecting this type of case for some time. A purchaser buying a property not knowing there were termites in the roof.

We have been advised that the facts are as follows:

The vendor went to enormous extremes to hide the termites. They made no disclosures to the purchaser.

The agent was the brother of the vendor and it would be expected that he knew of these termites.

A material fact is something that is significantly relevant to a person’s decision to enter a contract. Termites, those things that nibble the wood, are a material fact. Termites have been known to eat away a premises so that it ultimately collapsed.

The agent is now being sued by the purchaser for acting negligently by not disclosing the termites. Hence, the failure to not disclose will cause the agent considerable loss.

If an agent doesn’t know about the termites, he or she cannot be held liable. In this regard, you cannot be sued for something you don’t know. Moreover, you can’t disclose what you don’t know.

Nevertheless, if an agent knows or should’ve known that the wood nibblers were present, they are duty-bound to tell.

It is an often-asked question in our CPD training as to whether termites need to be disclosed. The answer is – absolutely!

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

The Nation of Fatties

We’re all told that we’re a nation of fatties, and that there is an obesity crisis across the nation, draining the coffers of the government.

Hands up! I put my hand up and acknowledge that I am one of those fatties. I am overweight due to the stress which is imposed by government regulations on myself and my clients. I don’t need drugs, but I need food to soothe my pangs! Unfortunately, asparagus, tofu and copious amounts of chicken do not do it for me! It’s sugar which makes my stress manageable.

There is a degree of hypocrisy which confuses me. The politicians are saying we need to get fitter and we need to do things to make ourselves less obese. They are now considering an obesity tax. Don’t laugh, in England you don’t get covered by the national health system if you are obese when you go into a hospital. This is an actual possibility. I don’t necessarily disagree that things need to be done to make us a little bit skinnier. What I want to see is the politicians themselves getting fit. In fact, the halls of Parliament are filled with real fatties. If we all need to get skinny – then so do they.

At the next election, let’s vote only for pollies who are skinny. Those fatties who want to tax us for being fat – let’s vote them out!

If you are a politician wanting us to get skinny, we want to see you at the gym, at Overeaters Anonymous or walking the hills of Canberra, just like Kim Beazley did before he had a tilt at The Lodge. Get skinny or lay off, you pollies!

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

The Sewage Pipe

Drainage and sewage is frequently a problem in Strata. If it isn’t hard enough to be involved in a Strata Community, with all the in-fighting of the Lot Owners, it’s even worse when government agencies don’t work with you.

This particular Strata Plan in Sydney had a drainage line which ran out through the Council strip. The Council planted a tree on the Council strip which has grown considerably. The tree roots have now grown into the pipe and blocked the sewage. The council has said, “not our fault.” It’s the Owner’s Corporation’s responsibility to repair.

The Council planted the tree. The council is also responsible for the pipe. The Council is therefore responsible to repair the pipe. The only difficulty is that the Owner’s Corporation may have been given an easement across the Council strip. Therefore, the easement would make the Owner’s Corporation responsible for maintaining the pipe. If this is the case, the Owner’s Corporation will need to repair the pipe and then take action against the Council for reimbursement.

Not a perfect situation. Trees are often a problem to Strata Plans and roots do cause major damage. If it’s on a Council strip, start communications as early as possible with the Council, before it becomes a problem.

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

The Key to the Door

Something new! I always say that in Property, something new is always occurring. This story was something I’ve never seen before!

A property was due for settlement. Advice was received from the vendor’s solicitor that there were no keys to the premises. They were advised, because the property was vacant, that no keys were available.

The agent held out that he didn’t know there was no keys available. I find that incredibly hard to believe! When doing open houses and doing all the other inspections – pest and building – as well as final inspections, the agent surely must have been letting himself into the premises somehow (although it is not unusual to use a sliding door in the back of a premises without a key).

The vendor’s solicitor indicated to the purchaser’s solicitor that there was no legal requirement for a key to be provided. She also indicated that the client had purchased the property with all latent defects. We held that somebody must have misled and deceived our client in relation to the fact that the property had a key.

You would have thought it would be a material fact that there were no keys to a house. Moreover, there is no way a purchaser would have even known that the house didn’t have a key, because they would always have been let in by the agent, as a guest. The simple fact is that a vendor must provide vacant possession. A subset of this legal obligation is to provide proper access to the purchaser. The purchaser’s solicitor refused to settle the property until the key was found.

Interestingly enough, the vendor did ultimately find the key in their new home on the mid-north coast. They delivered it to the agent in time for the settlement to take place. As it turned out, they were just being lazy in not wanting to send the key.

Real Estate can be strange at times – but this was a strange event which also caused undue stress to all parties.

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au

Lest We Forget

They shall not grow old as we that are left grow old;

Age shall not weary them, nor the years condemn.

At the going down of the sun and in the morning

We will remember them.

Anzac is now an important landmark on the Australian Calendar. People around Australia flock to memorials on the day as if they were on the beaches of Gallipoli 103 years ago. We are clearly remembering our fallen, but are we remembering what they fell for?

The Anzac legend has stood for many things. The volunteers who went away to fight for a better life for their loved ones back home, to ensure a better country, to allow for freedom to be yourself, the freedom of speech and the ability to have one’s own opinion! They fought for political freedom in a democratic light. They also fought for the rule of law and the love of the flag.

These people were passionate about their country. They demonstrated courage and commitment to the fight against what they believed challenged the lifestyle that we had in Australia. They also demonstrated a mateship to each other whereby they supported, protected and were committed to each other’s livelihood. On the front line, you knew your mate was there to fight with you and they would not leave you to take the blame for something that went wrong. Their downside in the workplace was death. They made a mistake and they or somebody else could die or have been maimed for the rest of the life.

These soldiers gave their lives for what they believed was right. I wonder if they would be proud of Australia today? The majority of the attendees at Anzac Day Memorials are the generation who are keeping alive the principals and standards of humanity that is the Anzac legacy. I wonder if the next generation will do this same? I fear they may not.

It would be horrible to think that our soldiers shed the blood under the flag of Australia for nothing. We must not forget!

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au