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Welcome to The OMB Law Board, the podcast where legal insights meet practical advice. Hosted by Simon Bennett, Managing Partner at OMB Solicitors, this show delves into what you can expect when engaging with OMB Solicitors. Specialising in property law and commercial law, OMB also boasts dedicated teams for estate planning, contested estates, body corporate matters, litigation, and family law.
Each episode features in-depth discussions led by experienced team leaders, some with over 20 years of expertise. You'll gain valuable knowledge on initial consultations, cost assessments, timelines, and the importance of clear communication and confidentiality in legal matters.
Join us to break down barriers and navigate your legal journey with confidence. Tune in for expert advice, client stories, and tips on how to prepare for your legal needs. The OMB Law Board is your trusted source for all things legal.
00:00:06:09 - 00:00:17:20
Unknown
Hi there. I'm Simon Bennett from the OMB Law Board. Today I've got our newly minted associate from our property law team. Bailey. Welcome back. Thank you for having me, Simon. Good to be an associate now. Well,
00:00:17:22 - 00:00:18:22
Unknown
it must be all the
00:00:18:24 - 00:00:25:01
Unknown
fantastic performances you're putting on in the law boards. So we're getting good feedback about you. So
00:00:25:01 - 00:00:36:21
Unknown
before we jump into it, I'm just going to make a note. We've got a subscriber question. Who's asked you or the property law team or particularly a really interesting question. So stick around to the end and we'll answer that question.
00:00:36:23 - 00:00:37:16
Unknown
Bailey,
00:00:37:16 - 00:00:51:17
Unknown
today we're going to talk about some property law problems, some things that go wrong in property law transactions and particularly verbal agreements and implied conditions and what you can rely on and what you can't.
00:00:51:18 - 00:01:12:04
Unknown
Correct. That's exactly right. Look, I kind of started off in the sense that in the property world, there's a lot of misconceptions in relation to verbal arrangements. But generally what we say is if it's not written down, it usually can't be relied on. Examples of which I usually give in relation to is in property transactions, mainly relating to contracts themselves.
00:01:12:06 - 00:01:36:11
Unknown
The most common ones we see is in relation to chattels, where the seller says, you know, I was going to sell the property with the fridge. The buyer believed he was going to be selling it with the fridge and getting the fridge post settlement. And ultimately on settlement day, the fridge is no longer there are the ones we see as special conditions, etc., but some of the other ones that potentially may harm a buyer even more than just a small fridge, or a TV or a washing machine.
00:01:36:17 - 00:01:54:00
Unknown
Maybe a deposit. Yeah. One of the cases I'll give you is Evan v Yan in 2025, whereby a purchaser thought he was going to be purchasing a property dream home, $985,000. The buyer gave a 10% deposit under the contract.
00:01:54:02 - 00:02:05:11
Unknown
Come contract day signing the documents, everything was fine. Couldn't end up attending to the 98,500 dollars deposit on the day due to a bank transfer limit.
00:02:05:13 - 00:02:17:14
Unknown
Ask the agent. Hey, look, I can't make the transfer today. Can I make it tomorrow? The agent agreed. Ultimately, the buyer then made the secondary payment the day later, of which he was then in breach of the contract.
00:02:17:16 - 00:02:30:10
Unknown
Wow. Yes. That's substantial. So we had a situation where the deposit was due on a certain day in Queensland. Time is of the essence in property contracts, so if you don't pay, there's an absolute guillotine.
00:02:30:15 - 00:02:52:09
Unknown
Thought he had an extension by a promise or a representation made by the real estate agent who said you can pay it later, which he did. Correct. What happened? Well, the buyer then took it to court. Obviously frustrated as one would be, the judge then ruled that the agent can't be making representations in relation to when the deposit due date can be extended.
00:02:52:10 - 00:03:04:11
Unknown
That would need to be handled by the buyer and the seller's solicitors, respectively. Accordingly, the judge upheld the decision on behalf of the seller to terminate the contract and forfeit the deposit.
00:03:04:14 - 00:03:10:10
Unknown
So the buyer in that case lost $98,000, 98,500 dollars. Wow. Yes.
00:03:10:10 - 00:03:19:24
Unknown
So there's a good lesson. You can't rely upon the representations of an agent as to extending the date for a deposit.
00:03:20:00 - 00:03:38:00
Unknown
Correct? Yes. So we'd need to get that in writing from the seller's lawyer. And the seller has to agree. The seller does have to agree. So that's a tip for you buyers out there. Before you sign a contract, come to us, seek legal advice beforehand so you at least know what you're getting yourself into and not getting in the same circumstances as that unfortunate buyer.
00:03:38:05 - 00:04:02:00
Unknown
And at the start of that, you were talking about small, much smaller items in such a large amount of money. But fridges, washing machines, dryers, etc. and a promise or a verbal agreement that they'll stay. How should we deal with that? To make sure I don't have disputes about small items, we always mention. If you've got a potential small item in a property that you wish to have included, we always jot it down in the contract.
00:04:02:01 - 00:04:20:05
Unknown
That's a way to avoid a potential dispute later on. If you say I want the fridge in the contract and the contract represents that, then you should be entitled to the fridge. And there's a specific provision in Queensland contracts called included chattels. Correct. And you can just list them there. Correct. That's one. So if you do that no problems.
00:04:20:05 - 00:04:42:13
Unknown
We're not going to have a dispute later on. We won't know. Okay. And what else can go wrong. What are some of the other major property blunders that you've been seeing Bailey. Well, one of the other big ones that we've seen is in relation to an off the plan contract out at the Royal Pines Development Area. The case is Brighton and ORS versus Royal Pines Projects in 2024.
00:04:42:16 - 00:05:07:24
Unknown
What that case kind of outlined was whereby and off the plan contract had occurred. The buyer was all happy. The seller called for settlement. Accordingly, the buyer needed finance, as one typically would in those type of scenarios. The buyer asked whether or not they could go into the property to conduct a valuation in order to obtain finance. The seller said, I'm not going to let you in to obtain your valuation until it was too late.
00:05:08:01 - 00:05:35:08
Unknown
Accordingly, the buyer felt cheated in that respect as he couldn't come to settlement and couldn't obtain finance in time, and it took them to court the sellers, which ended up resulting in the fact that there is an implied warranty in contracts. And it's reasonably foreseeable that if a purchaser could need finance, even if the contract wasn't subject to it at the time, that the seller should allow the valuer to go into the property in order for the buyer to obtain finance.
00:05:35:13 - 00:06:05:08
Unknown
Wow. So in that particular case, the contract, the off the plan contract wasn't specifically subject to finance, but the court implied that it is likely that a buyer in those circumstances, and there were some factors leading to it, would reasonably require finance to purchase. Correct, and that the seller had an obligation knowing those facts, to let the buyer's valuer in, to value the property, to enable them to get their finance.
00:06:05:08 - 00:06:26:02
Unknown
That is correct. Okay. And the seller called for settlement. The buyer was unable to settle. Correct. And then it ended up in court. It did end up in court. What the judge kind of ruled in that instance was, although, again, there isn't a finance clause in the off the plan contract and accordingly, the contract isn't subject to finance.
00:06:26:05 - 00:06:49:03
Unknown
Given the volatility of the property market at the moment, it is reasonably foreseeable that a potential buyer or most buyers would need finance in order to complete a property settlement. Accordingly, as most people know, when you're going to go for a property and you're going to purchase a property and get a loan. The banks need to conduct a valuation as they couldn't conduct the valuation.
00:06:49:03 - 00:07:17:14
Unknown
They weren't happy to give the the funding amounts required in order to settle the property. And the buyer couldn't attend settlement, so the seller didn't act reasonably. The buyer was granted relief by the court and the buyer was ultimately successful. Correct? Wow. Okay. There's two hard hitting cases that show problems that can occur if you don't get your documentation right or in fact, if you're not acting reasonably under a contract, we would recommend we would recommend you come to OMB.
00:07:17:14 - 00:07:43:04
Unknown
Before you do sign any documents, come and get correct legal advice before you obtain yourself into any specific circumstances where there is liability. It's always worth just having a chat. Yeah, and put it in writing. Correct. Now let's get to that subscriber question that we talked about earlier. And one of our subscribers has given us a question, Bailey, which I think you'll have the answer and give a bit of clarity on.
00:07:43:04 - 00:07:43:21
Unknown
So
00:07:43:21 - 00:07:45:07
Unknown
the question is
00:07:45:11 - 00:07:58:05
Unknown
OMB property law team. My dad and I have a verbal agreement, and we have had for years that he would transfer me some ownership in the family home.
00:07:58:07 - 00:08:07:00
Unknown
Things have changed. He's got a new girlfriend, and now he tells me that he doesn't want to go ahead or honor that deal. Where do I stand?
00:08:07:02 - 00:08:28:20
Unknown
It's a tricky question, Simon. It's a bit loaded in the sense that typically in Queensland, what we say is if there's no if there's no written contract pertaining to the actual transfer of the property or as to that promise, as we previously mentioned, then it wouldn't be transferred. And it's not a binding contract. However, there is different circumstances where this may apply to be factual.
00:08:28:21 - 00:08:51:04
Unknown
Examples that we have seen would be whereby the buyer, the son, for example, in that certain scenario has been attending to jobs, potentially on a farm where the dad has owned a farm for years. The son has attended to working on that property, receiving little compensation in the hopes that, hey, I will be obtaining that property at a later stage.
00:08:51:05 - 00:09:08:11
Unknown
So it's definitely a loaded question in the sense that different circumstances apply in different in different realities. However, the general premise is that we'd like to say if there's no contract, if there's no consideration, typically there wouldn't be any type of arrangement that would actually be constituting as binding.
00:09:08:17 - 00:09:17:13
Unknown
Yeah. So good question and good answer. Bailey. Under the Property Law Act in Queensland, contracts or agreements for property must be in writing signed by the party.
00:09:17:14 - 00:09:38:03
Unknown
So generally verbal agreements will not count. But as Bailey indicated, there are certain circumstances where there may be an exception. Yeah, very limited circumstances, may I add. So maybe the best thing for you subscriber is getting contact with our OMB team, and we'll see if we can give you a hand. Thank you for Bailey today for all your insights and information.
00:09:38:03 - 00:09:45:20
Unknown
We've really appreciate it. And to our viewers and listeners who hung around to the end. Thanks so much. And we'll see you on the next episode of the OMB Law Board.