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200-DAY RULE: “ORDINARILY RESIDENT IN AUSTRALIA”

This article serves as a timely reminder for foreign persons purchasing residential-related property in NSW as Revenue NSW seem to be doing an audit of property transactions for outstanding liabilities for surcharge purchaser duty.

It is important to note that while buying a residential property, there is a distinction between a “permanent resident” and “ordinarily resident”. You will be regarded as a foreign person if you have not lived in Australia for at least 200 days in the 365 days prior to the date of the contract for purchase of the property, even if your visa grants you a permanent resident status.

What is surcharge purchaser duty?

If you acquire an interest in land in NSW, you are usually required to pay an amount of tax on the purchase known as ‘transfer duty’ (formerly known as stamp duty).

If you are considered a ‘foreign person’ for the purposes of the Duties Act 1997 (NSW) (“Duties Act”), you are also required to pay surcharge duty on the dutiable value of the property you are purchasing (known as surcharge purchaser duty). This is in addition to the amount of transfer duty calculated on the acquisition. The rate of duty charged will depend on when the Contract was entered into, but is currently charged at 8%.

Foreign person

You’re generally considered a foreign person, unless:

you’re an Australian citizen
you’ve lived in Australia for more than 200 days in the 12 months before the purchase date, and you’re:
- a New Zealand Citizen, who holds a subclass 444 visa or
- a permanent resident of Australia.

Post-settlement audit by Revenue NSW

At some point in the future, the transaction may be audited by Revenue NSW, who cross-check the information in the Form against various other state and federal government databases. In particular, the information will be checked against the Department of Home Affairs.

If Revenue NSW identify anything that leads them to believe you might be liable for surcharge purchaser duty which has not been paid, they will commence an investigation under Part 9 of the Taxation Administration Act 1996 (NSW). If it is determined that you are liable for surcharge purchaser duty, Revenue NSW may issue a Notice of Assessment for payment of the surcharge duty, plus interest and possible penalty tax. You will be required to pay this extra amount, though Revenue NSW do have discretion to offer payment plans, stop interest accruing or reduce the amount of interest payable if you respond quickly to their notices.

In order to prove that you are ordinarily resident in Australia, you have to provide movement records from the Department of Home Affairs for the 12 month period before the contract date. The movement records can be requested from the Department by submitting a Form 1359. This document, along with your passport, visa grant, and signed and completed Purchaser Declaration Form have to be submitted to Revenue NSW upon its request.

Spouse relationship not established despite a valid marriage.

IMSEEH (MIGRATION) [2022] AATA 2245 (1 JULY 2022)

In this matter, Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a partner visa as it was not satisfied that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and therefore did not meet a criterion for the visa that the applicant is the spouse of the sponsor.

Facts:

In this matter, the applicant is a Jordanian citizen who married the sponsor in March 2013, the applicant’s permanent Partner visa was refused for not meeting cl 801.221.

The applicant entered Australia in May 2013 with the temporary Partner visa but was refused a permanent visa as the delegate was not satisfied that he was in a spousal relationship with the sponsor. The applicant sought review of the delegate’s decision but the Tribunal affirmed the decision under review. The applicant sought judicial review and the matter was remitted to the Tribunal for reconsideration.

On appearing before the Tribunal and producing the evidence and arguments, the Tribunal after hearing upheld the decision.

Issues

The tribunal considered following issues:

Is the marriage between the parties a valid one?
Whether the requirement for a spouse relationship are met by the parties?

Considerations and Decision

The tribunal was satisfied that the marriage between the parties is valid as the applicant had produced a valid registration of marriage certificate from Year 2013.

However, the tribunal was not satisfied that the parties meet the requirement for a spouse relationship as the applicant and the sponsor had inconsistencies in answers to the basic questions asked by the Tribunal.

Despite producing large volume of documentary evidence showing the genuineness of the marriage such as evidence of joint bank account, correspondence sent to same address, joint names on receipts etc, the applicant had minimal knowledge about his wife.

The applicant did not have any information about the wife’s income or about her savings or if there was a beneficiary on his wife’s superannuation account. Even though there was a joint account for the parties, his wife did not contribute to the joint account and her income was deposited into her own separate account.

On being asked about his stepson, though he claimed to have a close relationship with the stepson, he failed to answer the questions asked about the step son like his interests or what he intended to do upon completing high school (which is in less than a year) or his best friends’ name. The tribunal concluded that the applicant’s knowledge about his stepson was minimal.

The tribunal was concerned with the inconsistencies in the parties’ oral evidence about aspects of their relationship and was of the view that, had the applicant and sponsor established a joint household and lived together for about 10 years as claimed, they would have had better knowledge about each other than what was displayed during the hearing.

From the above instances the tribunal couldn’t establish a spouse relationship between the parties irrespective of the reasons produced by the parties and found that the applicant does not meet cl. 801.221 as per the requirement for granting the applicant a Permanent Partner visa.

Analysis

The Tribunal upheld the Minister’s decision not to grant the applicant a permanent partner visa, as they were not convinced that the applicant and sponsor had a genuine and continuing spousal relationship. Despite producing evidence of a valid marriage and other documents like a joint bank account, joint receipts, and correspondence sent to the same address, the applicant’s knowledge of his spouse and stepson was minimal, and there were inconsistencies in their answers to questions about their relationship. The Tribunal considered the four pillars of the relationship (financial, household, social, and commitment) and found that they were not satisfied. This case highlights the importance of providing sufficient evidence to prove a genuine and continuing spousal relationship to successfully apply for a partner visa.

Section 5F of the Migration Act 1958 and Migration Regulation 1.15A(1A) dictates that the decision makers are to consider the four aspects of the relationship, commonly known as “four pillars of relationship”. They as as following

financial aspects of the relationship
nature of the household
social aspects of the relationship
nature of the persons’ commitment to each other

It is important to establish that these four aspects are satisfied, as a proof of genuine and continuing spouse relationship between a sponsor and applicant, otherwise the partner application may not succeed.

How to fast-track your visa application: Decision ready visa application?

The current blog is to educate our clients that how they can fast-track their permanent residency visa application. A poorly prepared application, or what the Department of Home Affairs call a “naked application”, is one where there is an application form, a fee, and little to no supporting documentation.

After the lodgement of visa application, the decision on your visa application will depend on the complexity of your application. The Department is currently processing a high number of visa applications. Your visa application can take longer if it contains incorrect information or documents are missing. It may even be refused.

The following are some of the issues that cause delays in majority of the visa application:

Missing documentation that are necessary for the officer to finalise the application.
Character and health assessments usually delay the visa application process to a certain extent as obtaining the overseas police clearances certificates from some of the countries is a long process.
Submitting multiple visa applications for the same type of visa.

However, to speed up your visa application, you must have a decision ready visa application. Decision ready visa application means a visa application that is prepared in a way that it is ready for a Case Officer to decide on immediately, without having to request anything extra. A good, sound, and complete application that has been prepared and presented properly processes earlier than other visa applications.

We recommend you do the following steps to speed up the process of your visa application.

Please check in detail what documents are required to lodge your visa application. Check either with your migration agent or lawyer, about the required documents which needs to be official, original copy, translated, or requires a witness.
Have sufficient time in your hands to collect all the required documents that needs to be lodged with your visa application. Some of the documents take longer than expected such as overseas police clearance from different countries that you have lived in for a certain period.
You have to make sure that all the documents have correct details such as the names are correct and date of births. Inconsistencies in the documents will delay your visa application.
Make sure that your contact details are updated, so if the Department requires any additional information (often called Section 56 request), they can contact you effectively.
Make sure that you provide an explanation in writing such as cover letter stating the reasons for incomplete application or for any missing documents.

𝗧𝗼 𝗹𝗲𝗮𝗿𝗻 𝗺𝗼𝗿𝗲, 𝗴𝗶𝘃𝗲 𝘂𝘀 𝗮 𝗰𝗮𝗹𝗹 𝗼𝗻 𝟬𝟰𝟱𝟭 𝟰𝟬𝟬 𝟲𝟬𝟭 𝘁𝗼 𝘀𝗰𝗵𝗲𝗱𝘂𝗹𝗲 𝗮 𝗰𝗼𝗻𝘀𝘂𝗹𝘁𝗮𝘁𝗶𝗼𝗻 𝘁𝗼𝗱𝗮𝘆.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.

Partner Visas (Subclass 820/801 & 309/100)

A Spouse Visa may be a suitable option for you if you are currently in a relationship with an Australian citizen or Australian permanent resident or eligible New Zealand citizen and have intentions to live in Australia with your partner.

The factors the Department of Home Affairs (DOHA) will consider while assessing your visa application include:

Financial aspects of the relationship such as joint ownership of real estate or bank accounts and whether household expenses are shared by both of you
Nature of the household such as joint responsibility for children shared living arrangements and shared housework
Social aspects of the relationship such as whether friends and family see you as a couple
Commitment to each other includes the duration of the relationship, length of time together, degree of companionship and emotional support, and whether you both see the relationship as a long-term one.

Partner visa applications are a two-stage process. In the first stage, you will receive a provisional and at the second stage: permanent partner visa. Where a provisional visa is granted, you can apply for a second stage assessment two years after the date you submitted your application. You can apply for a partner visa either onshore or offshore depending on your circumstances.

Make sure you satisfy the visa criteria

Before submitting a visa application, it is important to check that you satisfy the eligibility criteria. For example, if you are not married and you are wanting to apply for a partner visa, you must demonstrate that you have been in a de-facto relationship with your partner for a minimum of 12 months.

Organise your supporting documents

It is essential that you collate and organise your supporting documents before submitting a visa application.

Your documents should verify the identity of yourself and your partner. They should also show the duration and genuine nature of your relationship. It is not enough to print extracts from Facebook or Instagram or to simply provide 100 photographs. You need to show real evidence such as bank statements, tenancy agreements, and other evidence that you live together and are in a committed genuine relationship.

Some of your friends and family will have to write statements to explain how long they have known you both, and that your relationship is genuine. You and your partner will also need to provide police clearances.

Respond promptly to any requests from the Department of Home Affairs

The Department may write to you requesting additional information to support your application. If you receive such a request, be sure to respond within the timeframe specified – typically 28 days. Failure to respond can result in your application being refused.

Be honest

The most important tip we can give you is, to be honest. Tell the truth, the whole truth, and nothing but the truth. Check every detail of your application form is correct and free from typos and errors before you submit your application. Printing the application form before submitting is a useful way to proofread it to ensure it is free from errors.

Entitlements of Spouse Visa (subclass 820/801 & 309/100)

The partner Visa will grant you a temporary residency visa in the first stage:

Stay in Australia until a decision is made about your permanent Partner visa application.
Work in Australia;
Study in Australia, but with no access to government funding;
Enrol in Medicare, Australia’s scheme for health-related care and expenses.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed

Visa cancellation of Indian Student and deported from Melbourne Airport

The recent event at Melbourne airport demonstrates the importance for every international student to retain a copy from the agent of the visa application before and after the lodgement of student visa.

An Indian international student visa has been cancelled and later deported from Melbourne’s Airport. The Indian student has travelled to India. After staying in India for a few days, the student travelled to Australia to resume his studies.

He was stopped at the Melbourne Airport by the Department’s officials and was questioned about his study in Australia. According to the student, he has answered satisfactorily to all the questions raised by the Department’s officer.

However, the student was taken for a Biometric test for further investigation. The Departmental records indicates that the student has a prior visa refusal which was not declared before lodging his student visa application to Australia.

In the student visa application, the student has answered the following:

Has the applicant, or any person included in this application, ever had an application for entry or further stay in Australia or any other country refused, or had a visa cancelled?

Have provided complete and correct information in every detail on this form, and on any attachments to it.

Yes

Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.

Yes

Due to the above incorrect or misleading information, the Department has cancelled his student visa under Section 116(1)(D) and Section 101 of Migration Act.

Important: It is not a defence to later claim that the agent has not declared the prior visa refusal. To avoid unpleasant situation, it is your duty to do your own due diligence before choosing an agent. Make sure that you have a copy of the student visa application for your records.

𝗧𝗼 𝗹𝗲𝗮𝗿𝗻 𝗺𝗼𝗿𝗲, 𝗴𝗶𝘃𝗲 𝘂𝘀 𝗮 𝗰𝗮𝗹𝗹 𝗼𝗻 𝟬𝟰𝟱𝟭 𝟰𝟬𝟬 𝟲𝟬𝟭 𝗼𝗿 𝗰𝗼𝗻𝘁𝗮𝗰𝘁 𝘂𝘀 𝘃𝗶𝗮 𝗷𝗮𝘀𝗽𝗿𝗲𝗲𝘁@𝗴𝗼𝗻𝗱𝘄𝗮𝗻𝗮𝗹𝗮𝘄𝘆𝗲𝗿𝘀.𝗰𝗼𝗺.𝗮𝘂 𝘁𝗼 𝘀𝗰𝗵𝗲𝗱𝘂𝗹𝗲 𝗮 𝗰𝗼𝗻𝘀𝘂𝗹𝘁𝗮𝘁𝗶𝗼𝗻 𝘁𝗼𝗱𝗮𝘆.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.

What’s the difference between separation and divorce?

This article will provide you general information about Divorce and Separation along with the different stages for applying a divorce in Australia.

What’s the difference between separation and divorce?

Separation is the when one party to a relationship decides that the relationship is over and there is no prospect for reconciliation, and then communicates this decision to the other party.

It is important to know that separation does not need to be a joint decision. Only one person needs to decide that the relationship has come to an end, but it is necessary for the other person to be made aware that the separation has taken place.

You must be separated for 12 months and 1 day before you can apply for divorce.

Majority of the people believe that separation occurs when one of the parties started living in separate residence. However, it is not necessary to live at separate residence as you can tell the Court that you were separated under one roof.

Divorce

Divorce is a legal process whereby a Court dissolves the marriage contract. It changes the legal status of the individuals involved and has a number of immediate effects

The divorce processes

There are two ways under which you can lodge your application: by yourself or jointly with your spouse. It is easier if you are able to cooperate with your spouse and lodge your joint application.

If you file a sole Application for Divorce: You will then need to “serve” the Application on your spouse. Making a sole application also means that you will need to attend Court if there are any children under eighteen who are considered members of your family (including a foster child or step-child).

If you are filing a joint application: For joint application for divorce does not require either party to be served, and there is also no requirement for either party to attend Court.

Time limits

There are important legal deadlines and time limits that apply to separation and divorce in Australia.

In terms of separation, it commences when both parties decide to separate, or one party decides to separate and communicates as much to the other party. It is a requirement that the couple is separated for one year and one day before filing for divorce. For example: If you have separated on 27 April 2022, you can file your divorce on 28 April 2023.

How much does it cost to get a divorce in Australia?

There are several costs associated with obtaining a divorce in Australia.

There are Federal Circuit and Family Court of Australia filing fees which must be paid. Whether you are lodging a joint application or a sole application, the court fees is $940.

When do you get the divorce certificate?

Your decree will be issued one month and one day after the hearing. You can obtain a copy of your marriage decree from your solicitor or via the Commonwealth Courts Portal one day after the decree is issued.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.

PERMANENT SKILLED REGIONAL VISA SUBCLASS 191 TO COMMENCE ON 16 NOVEMBER 2022

The 491 visa applicants will be able to apply for Subclass 191 visa in November 2022

The Australian Government introduced two regional subclasses in November 2019:

Subclass 491 Skilled Work Regional (Provisional) visa; and
The subclass 494 Skilled Employer Sponsored Regional (Provisional) Visa.

These visa subclasses provide the State and Territory governments and employers in regional Australia a broader range of skilled occupations for nominations of temporary skilled workers.

Eligibility criteria for 191 visas

There are other criteria for this visa, such as relevant work experience, English language proficiency and age limits (unless an exemption applies).

A person who has held the subclass 491 or the subclass 494 visa for at least 3 years and meets a minimum taxable income and other criteria may be eligible for the corresponding permanent visa (the Subclass 191 visa).

It is expected that the Subclass 191 visa will commence in November 2022 as the first batch of visa holders become eligible to apply for permanent residency.

What you can do with 191 visa?

The subclass 191 visa is a permanent residency visa.

191 Visa holders can:

Live and work in Australia indefinitely
Include immediate family on their 191 Visa
Sponsor eligible family members
stay permanently in Australia
apply for Australian citizenship, if they meet the requirements
entitled to Medicare (public health care system).

𝗧𝗼 𝗹𝗲𝗮𝗿𝗻 𝗺𝗼𝗿𝗲, 𝗴𝗶𝘃𝗲 𝘂𝘀 𝗮 𝗰𝗮𝗹𝗹 𝗼𝗻 𝟬𝟰𝟱𝟭 𝟰𝟬𝟬 𝟲𝟬𝟭 𝗼𝗿 𝗰𝗼𝗻𝘁𝗮𝗰𝘁 𝘂𝘀 𝘃𝗶𝗮 𝗷𝗮𝘀𝗽𝗿𝗲𝗲𝘁@𝗴𝗼𝗻𝗱𝘄𝗮𝗻𝗮𝗹𝗮𝘄𝘆𝗲𝗿𝘀.𝗰𝗼𝗺.𝗮𝘂 𝘁𝗼 𝘀𝗰𝗵𝗲𝗱𝘂𝗹𝗲 𝗮 𝗰𝗼𝗻𝘀𝘂𝗹𝘁𝗮𝘁𝗶𝗼𝗻 𝘁𝗼𝗱𝗮𝘆.

HOW TO REGISTER YOUR RELATIONSHIP FOR A PARTNER VISA AS A DEFACTO PARTNER IN AUSTRALIA?

To apply for a Partner Visa (subclass 820) as a Secondary Applicant on de facto grounds, you would need to show that you have cohabitated with your Partner for at least 12 months.

However, you may be exempted from the 12-month cohabitation requirement, if you register your domestic relationship in the Australian state or territory you live in. It is important to note that the ACT, New South Wales, Queensland, Tasmania, South Australia, and Victoria are the only states that have laws in place allowing a relationship to be registered in accordance with the Acts Interpretation (Registered Relationships) Regulations 2019.

Registration of the relationship provides legal recognition under the state law and as well as being beneficial for immigration purposes. The standard requirements to register a relationship are:

Both parties must be at least 18 years of age.
They must not already be married to each other.
They must not already be married, in a de facto relationship or in a registered relationship with any other person.
They must not be related by family or blood.

Each Australian state and territory have other additional requirements, different processing times and their own fee structures. You can find the relevant information on the following links:

Victoria – click here
New South Wales – click here
Queensland – click here
Tasmania – click here
ACT – click here
South Australia – click here

If you’re eligible to register your relationship and you’re looking to apply for your visa soon, it is imperative that you apply as soon as possible, as there may be delays and/or “cooling down” periods, depending on the state or territory.

If you wish to book and appointment with one of our Immigration Lawyers, please call us on 0451400601 today.

Disclaimer:

The information in this blog is general. It does not constitute, and should be not relied on as, legal advice. We tries to ensure that the content of this information is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. We are not responsible for any loss suffered as a result of or in relation to the use of this information.

Visa Cancellation – How to Prevent Visa Cancellation Under Section 116(1)(e)(i) Cancellation of the Migration Act:

Section 116 Visa Cancellation power gives the Minister of Immigration (Home Affairs) the power to issue a Notice of Intention to Consider Cancelling (or NOICC) a temporary visa if he believes that you are or may be, or would be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community (under section 116(1)(e)(i)).

Under Section 116 of the Migration Act, the Department of Home Affairs can cancel your visa for different reasons such as:

You may pose a risk to the health or safety of the community; or
You failed to comply with the conditions of your visa; or
You are not a genuine temporary entrant, for eg, as a student; or
The Department is not satisfied with your identity, for eg, you provided false or fake identification document; or
You provided false information to the Immigration.

This article provide useful insight about section 116(1)(e)(i) discretionary visa cancellation works.

Section 116(1)(e)(i) Visa Cancellation Test

The threshold in this Section 116 Visa Cancellation is very low as the test is very broad to include if:

i. you are; or

ii. you may be; or

iii. you would be; or

iv. you might be

a risk to the:

health;
safety; or
good order

of the Australian community or a segment of the Australian community.

It is important to note that if you are charged with an offence against the laws of the State or Territory, your visa may be cancelled under section 116(1)(g) on grounds prescribed in r. 2.43 of the Migration Regulations 1994. If you are put on good behaviour bond instead of being imprisoned, this can also be ground for visa cancellation.

What evidence you can provide in your submissions to prevent Section 116(1)(e) Visa Cancellation:

Statement of Facts outlining the charges.
Court outcomes documents or Court briefs.
If you were given bail, whether you complied with your bail conditions
AFP National Police Certificate detailing all your offences and sentences
Your statement explaining the cause or underlining reasons to, or for, your offending; explaining your ties with Australia and with your home country; whether your offending was or was not beyond your control; your remorse; explaining the adverse interaction with the criminal justice system has been a salient lesson for you and the need for you to address your offending behaviour; your compliance with your visa conditions; give an undertaking or assurance to be of good behaviour in the community and not to engage in any behaviour that would bring you within the ambit of the criminal justice system; and what would stop you from acting out in an inappropriate way in the future
Letters of support from your family, friends, employer, work colleagues, clubs and others
Letters from your family members detailing how your deportation will affect them, eg emotional and financial hardship and whether they feel threatened by you
If you have a job, a letter from your employer detailing how they value you and whether they can find a replacement for you if you were deported – whether your skills and occupation is in shortage or in demand
Evidence of having made positive contributions to the Australian community, eg mentoring other people, participation with sport clubs, volunteering, etc
Provide evidence that you are taking positive and proactive steps to rectify your behaviour or taken appropriate action to overcome the reasons for your offending, eg, Anger Management course, Salvation Army’s positive lifestyle program, Alcoholics Anonymous meetings (if relevant to your offending)
Provide evidence that you have been rehabilitated
Letters of apology to your victims and your appreciation of the harm caused
Statement of Fines and Penalties imposed by the Court.
Evidence of having or not having family back in your home country
Sentencing Magistrate’s sentencing remarks:
whether the objective seriousness was at the lower end of the scale
whether the offence was planned or not
whether the offending was short in length or not
whether you were cooperative with the police.

The decision maker is required to give weight to the evidence you provided in assessing whether Section 116 Visa Cancellation should be exercised (Botha v MIBP [2017] FCA 362 – click here to read the full case).

A section 116 visa cancellation can be appealed. The appeal options should be outlined in your section 116 visa cancellation notification from the Department of Home Affairs. If you receive a 116 cancellation, we recommend that you speak to a lawyer about your appeal options. We can assist you in determining if you have grounds to appeal a decision and assist you with the appeals process.

Disclaimer:

Can I change the purchasers name on my contract after it has been executed by vendor?

There are many occasions when a person enters a contract of sale of land without other partner or person name. However, you find out later that you need to add your partner, remove yourself or add another person all together.

However, it is not as simple as just hand amending the contract or sending an email to the vendor. There is a process to add or remove the purchasers name on the contract

For example: If Person A enters a Contract to purchase a property, but Person B has been left out of the Contract of Sale. Person A do not simply add Person B’s name on the Contract. This may trigger major additional liability for transfer duty – no-one wants to have to pay more transfer duty than they have to.

What can I do to change my Contract?

Firstly, it is important to know that the vendor does not have to agree to change the buyer entity in the Contract. If the vendor does not agree, then you are stuck with the Contract as is. A vendor in a rising market may have found another buyer and may not mind if Buyer A can’t go ahead with the Contract.

Often, the vendor will be agreeable to changing the buyer because the vendor just wants the sale to go through. But the vendor will usually make the buyer pay all legal costs of fixing things up.

The Buyer or the purchaser’s Solicitor would prepare what is known as a Deed of Rescission to rescind (or cancel) the Contract between the Original purchaser and the vendor. Once the Deed of Rescission is prepared, the Real Estate Agent will prepare a new contract to be signed by the correct Buyers and the vendor at the same time as the Deed of Rescission.

What is a Deed of Rescission?

A Deed of Rescission is a document which forms an agreement between the vendor and purchaser to terminate the original Contract. The word ‘rescission’ means revoked or cancelled.

Rescission will not take effect until the new contract has been signed. The vendor will require the cooling-off period to be waived for the new Contract, and often will require the new Contract to be unconditional. This means that at no time is there no Contract in place at all between the parties. This reduces the risk of the vendor changing their mind and refusing to sign the New Contract, thinking that the Original Contract has been rescinded.

We prefer to review your Contract before you sign it so that we can confirm with you that all the details in the Contract have been correctly provided or prepared

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, we cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. We does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. We disclaim all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

What are Covenant and Easements?

Understanding covenants and easements and how they affect a property is an important part of any property transaction. Any covenants or easements that may exist over the land must be identified and investigated, since they may affect your proposed use and development of the property.

What is a covenant?

Contract between original two parties, usually the initial Developer of Land and the original Owner of the Land. A Covenant is a promise where a description outlines the restriction on Land use. It is a notation on Title linked to the original agreement For example: the building materials on houses in certain subdivision are to be selected from a list of materials contained in the covenant agreement on Title.

There are two types of covenants, which affect properties in different ways:

Restrictive covenants: Generally, restrictive covenants control the permissible use of land, which mean the owner of the land is refrained from doing something. For example, a developer may impose a covenant requiring land in a subdivision to be used only for residential purposes, requiring any building to be of a specified quality or value, or placing limits on design (such as a prohibition against double garages).

Restrictive Covenants might be used in circumstances such as:-

Not allowing a house to be used for business purposes.
Not allowing non domestic animals to be kept on the property e.g. Chickens, pigs etc.
Not allowing building on land without consent of the party who has the benefit of the covenant.

2. Positive covenants: A positive covenant requires some form of action to be taken e.g. to erect a fence along a boundary. Positive covenants are generally a contract between the original parties to the deed imposing the covenant and do not bind future land owners. However, future owners of the land which has the benefit of a positive covenant can enforce the covenant against the original owner of the land that has the burden of the covenant.

The impact of a covenant on a property

Covenants are common in situations where land is subdivided as part of a housing development. Developers may want to establish construction standards in the covenant, such as the minimum size of a dwelling or limiting the type of materials used for the construction of the dwelling, with the objective of maintaining the aesthetics and quality of housing.

A covenant may also be created in favour of a prescribed authority, such as a local council. These prescribed authorities impose covenants on their own land and on the land of third parties and can also impose terms or conditions for the performance of such obligations.

If you plan to build a house on vacant land or substantially renovate an existing house, it is important to review any covenants which may exist over the land to ensure your development plans comply with the obligations imposed under the covenants.

What is an easement?

Restriction on the user of the land, to benefit another party, registered on the Title e.g. a Driveway is owned by the front street facing home, an easement registered on title allows the back neighbour to use the driveway for entrance, even though owned by the front street owner.

Examples of easements include:

Right of way (also known as a right of carriageway) – This allows a neighbour or statutory authority the right to travel or pass through a defined portion of the land. An example of a right of way easement is a shared driveway used by a landlocked owner to access their property.
Easement for services – This allows a statutory authority to repair and maintain services located on the property. These services may run over the property (e.g. overhead electricity transmission lines) or underneath the property (e.g. sewerage pipes).
Cross-easements – This allows neighbouring properties with reciprocal rights to use each other’s property for the same purpose. The most common example of a cross-easement is a shared party wall between neighbouring terrace houses.

Easement by Prescription – Created informally by years of usage but not registered on Title, created by a common law and facts of the situation. (usually by Court Action).

Easement by abandonment – Created by non-use, non-use was intentional and no longer needed, application to Court or NSWLRS.

Profits a prende – The right for someone to enter someone’s land and remove fruit, soil, timber, crops etc. must be disclosed in Contract for Vendor Disclosure if registered on Title.

The impact of an easement on a property

Easements can restrict your use of the land. If your property has an easement which allows access for your neighbour or a statutory authority, they are not considered to be trespassing provided they are using the easement in the prescribed manner and you cannot interfere with their rights or restrict access to the easement.

An easement will also affect any proposed development on the property. You are generally not allowed to build any structures on or over an easement unless you have authority from the party which benefits from the easement. Owners who build any structures on or over an easement without obtaining approval may be required to remove the structure.

At Gondwana Lawyers Pty Ltd, our experienced conveyancing solicitors, can assist owners of property and prospective purchasers of property with the following:

Drafting and preparing covenant or easement documents to register on title;
Reviewing and advising on your rights and obligations if there is a covenant and or easement on your property;
Advising on options available in dealing with an easement or covenant.

𝗧𝗼 𝗹𝗲𝗮𝗿𝗻 𝗺𝗼𝗿𝗲, 𝗴𝗶𝘃𝗲 𝘂𝘀 𝗮 𝗰𝗮𝗹𝗹 𝗼𝗻 𝟬𝟰𝟱𝟭 𝟰𝟬𝟬 𝟲𝟬𝟭 𝗼𝗿 𝗰𝗼𝗻𝘁𝗮𝗰𝘁 𝘂𝘀 𝘃𝗶𝗮 𝗷𝗮𝘀𝗽𝗿𝗲𝗲𝘁@𝗴𝗼𝗻𝗱𝘄𝗮𝗻𝗮𝗹𝗮𝘄𝘆𝗲𝗿𝘀.𝗰𝗼𝗺.𝗮𝘂 𝘁𝗼 𝘀𝗰𝗵𝗲𝗱𝘂𝗹𝗲 𝗮 𝗰𝗼𝗻𝘀𝘂𝗹𝘁𝗮𝘁𝗶𝗼𝗻 𝘁𝗼𝗱𝗮𝘆