Boundary Realignment – Not a simple matter

Most neighbours who seek to change the position of their property boundaries underestimate the complexity of the process and the delays often experienced in dealing with their mortgagees and other secured creditors.

Boundary realignment is essentially a re-subdivision of the properties involved and proceeds in the same way as a traditional subdivision of property.

The parties should firstly properly document the agreement and include a full Contract for Sale of Land in relation to the properly changing hands.

Normally the proposed plan of subdivision is first approved by the Local Council and then signed off by all the registered proprietors and their mortgagees and is then lodged for registration at the Lands Dept together with the Certificates of Title of each property and any other necessary related documents (these typically include land transfers, discharges of mortgage, mortgagee consents and new mortgages).

Without the simultaneous registration of such “related documents” the newly issued Titles will note the entitlement of the registered proprietors and their mortgagees of the land gained. This is commonly referred to as a “dual entitlement” and as a result the mortgagee’s security may well be unenforceable if the subdivision is registered without the related documents being registered at the same time.

Accordingly the role of any mortgagees is significant prior to the subdivision being registered and they will normally request new mortgages be entered into and control of all related documents and the registration process.

Who is considered eligible to make a family provision claim as a de facto?

Was the claimant the “de facto” of the deceased and accordingly an “eligible person” for the purpose of making a claim for a family provision order under the Succession Act?

The Property (Relationships) Act 1984 NSW defines a de facto relationship as two persons who live together as a couple though not married to one another.

In determining whether two persons are in a de facto relationship the Court must take into account all the circumstances of the relationship including the length and permanence of the relationship, the degree of emotional and financial support and the residential arrangements.

The Court has determined that is not necessary for the two persons to be physically cohabitating as long there is a genuine domestic arrangement which is not accidental or contrived.

Accordingly in Weston V Public Trustee (1986) NSW the Court found that a woman who had been living with the deceased for several days every week for over thirty (30) years and had at the same time kept a separate residence was an eligible person.

Guaranteeing children’s loans

Recently I was again reminded of the dangers of guarantees and the potential consequences to the guarantors.

A son talked his mother and father into guaranteeing a loan from a bank. The son defaulted on the loan.

The bank called up the loan and there was litigation.

The parents maintained they did not understand that they could lose their home.

A settlement was negotiated whereby the parents transferred the home into the name of the bank but were given a right to occupy the property (their home) until the death of the survivor of them which has now happened. The bank has control of the sale of the property and the court order provided for their estate to receive 10% of the net proceeds of sale.

A lucky outcome for the parents- it could have been a lot worse!

Website protection

Your website is a vital asset and tool for the ongoing success of your business. There is nothing worse than Googling your business and finding out that somebody on the internet has copied it. Don’t worry you can protect your website by following these steps:

  1. Check with your IT service provider and/or web developer to see whether there is any way to prevent the copying of your website.
  2. Keep an accurate record of your website’s creation and development, both in hard copy and electronic form, which documents:
    1. the creation of the ideas behind the website;
    2. the creation of the look and feel;
    3. the drafting and preparation of the content of the website;
    4. the creation of your brand.
  3. Check out your website’s history and copy it from the internet archive wayback machine (http://archive.org/)
  4. Regularly search the internet using Google or another internet web-search engine to ensure that no one is copying the content from your website.
  5. If you find that your website has been copied, then you need to:
    1. Make a complete copy, both electronically and in hard copy, of your website on the day that you find the mirror site;
    2. Make a complete copy of the mirror site, both electronically and in hard copy and itemise each breach.
    3. Check out the mirror site on the internet archive wayback machine.
    4. Do a ‘who is’ search to identify who is the licence holder of that website;
    5. Find out who the web hosting company is, and whether there is a take-down notice style mechanism available through the web-hosting company or elsewhere under the local law which governs the operation of the mirror site.
    6. Find out if the owner of the mirror site has any presence or assets where you are located (i.e. in Australia), and also where it is located if overseas.
    7. Gather all your information and forward it to me to review so I can start the process to takedown the mirror site.

Recently a client was thinking of expanding his business overseas into the Asian market. He found that a competitor based in Singapore had set up a website which was a mirror image of his business’s website, save for the business name. Naturally, our client was incensed by his competitor’s actions, copied both his site and the mirror site and sent it to us for immediate action. In this instance, following the tips above and a little legal mumbo-jumbo, we were able to have that website taken down and replaced within 7 days with the website for the competitor which was no longer a mirror image of our client’s website.