How to Protect Your Assets during a Financial Crisis

How to Protect Your Assets during a Financial Crisis

The COVID-19 pandemic has shocked the financial markets and created difficult situations for people who own assets that have fallen in value. In this article, we explore three tips that could help protect your assets and finances throughout the COVID-19 crisis.

Disclaimer: This article has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, financial advice. We recommend that you should consult your own finance advisors before engaging in any transactions. 

Protecting Personal and Family Assets

A discretionary trust (also known as a family trust) can be used to protect assets in the event of a financial crisis or bankruptcy. A typical family trust operates as a legal relationship between a trustee and beneficiaries, where the trustee is under an obligation to hold property for the benefit of the beneficiaries. The trustee is the legal owner of the trust property and the beneficiaries only hold an interest in the trust property. Therefore, if a beneficiary were to experience financial hardship, trust assets are protected from the beneficiary’s creditors as they do not own the trust property.

However, trustees on the other hand may fail to achieve asset protection if the predominate purpose for the administration of a trust was for a tax benefit or other considerations. For example, it is common for family trusts to have a corporate trustee as this structure brings tax benefits and can exist indefinitely and can appoint multiple directors to control the trust.

There are many events that risk exposing the assets of a trust, including where loans are made from a family trust, when there are unpaid allocations of trust income and capital, and when companies are beneficiaries. Many deficiencies stem from a poorly constructed Trust Deed, therefore it is important to consult a legal professional to carefully draft a deed with relevant clauses included to ensure asset protection.

Protecting Business Assets

One of the greatest risks during economic downturns is for a business to become bankrupt. Creating limited liability companies or corporations is the most common strategy to help protect your personal assets from the reach of creditors. Businesses can also use the structure of a trust to protect assets that have value, such as machinery, equipment or intellectual property, to prevent them from being taken in the event of a lawsuit.

Professionals that are at risk of personal liability must be careful as the risk of insolvency and/or lawsuits frequently arise during a financial crisis. Thus, it is important to check your business and professional indemnity policies for inclusions and exclusions. One way you could protect yourself is to increase your professional and public liability policy premiums and cover more extensively the events that are likely to occur in the current environment.

Pension and Superannuation Funds

Most pension and superannuation funds can allow you to shift your investments across different asset classes. As volatile market movements have resulted in falling share prices, shifting your investments could substantially reduce the current value of your portfolio. If you are older or rely on income from your fund, you could consider reducing the risk of your investments by shifting holdings from equities to bonds and cash. However, it is important to note that moving your investments could mean that you sell at a lower than usual price and therefore miss out on opportunities for future price increases. As such, some financial advisors may suggest to sit out of the market and wait until things blow over. If you are middle-aged or younger and will not need to rely on a fund income within the next ten years, attempting to time the markets is risky and a series of rash decisions could lead to a loss in the potential future value. Many suggest that the key is to maintain a balanced portfolio that spreads risk across different asset classes to reduce your downside risk and also ensure exposure to upside risk when the market outlook improves.

Further Information

If you would like more information on how we can advise you about trusts and protecting your assets, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au.

COVID-19: Witnessing Legal Documents Electronically

COVID-19: Witnessing Legal Documents Electronically

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (The Regulation) is another government initiative in response to COVID-19. The Regulation officially came into force on 22 April 2020 and aims to provide clarity on how some documents can be witnessed by an eligible witness via audio visual link. One of the most critical aspects of the Regulation is that it does away with the requirement for a witness to be physically present to witness the execution of documents. In this blog, we answer some of the most common questions regarding the new method of witnessing legal documents electronically.

What does audio visual link mean?

Audio visual link means any technology that enables audio and visual communication between two persons who are not physically present in the same room. This usually consists of the classic video conferencing platforms such as Zoom, WhatsApp, Skype and FaceTime.
What documents can be witnessed by audio visual link?

The below documents can now be witnessed through an audio visual platform:

  • a Will;
  • a Power of Attorney or Enduring Power of Attorney;
  • an Appointment of Enduring Guardian;
  • a deed or agreement;
  • an affidavit (including any annexure or exhibit to an affidavit) except for the purposes of divorce; and
  • a statutory declaration.

How do I witness a document by audio visual link?

In order to have a validly witnessed document it is imperative that the Regulation is followed correctly and carefully. In accordance with the Regulations, a person witnessing the signing of a document using an audio visual link must:

  1. Observe the person signing the document in real time (i.e. not via a pre-recorded video) to confirm the signature is legitimate.
  2. Next, the person witnessing the document must sign the document (or a copy) as soon as possible after the witnessing via audio visual link to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signed which is either sent in the post or electronically to the witness.a.
    • It is important to note that the person witnessing the document must be reasonably satisfied that the document signed by the witness is the same document signed by the signatory.
  3. The person witnessing must then state on the document the method of witnessing (either countersigned or counterpart) that was used and that it was witnessed in accordance with the Regulation.
    • For example: “I, [insert name here] attest that this document was signed in counterpart and witnessed by me by audio-visual link via Skype in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.

Are there changes to who can act as a witness?

The Regulation has altered who can witness a Statutory Declaration. Traditionally, only Justices of the Peace and Solicitors could act as a witness to a statutory declaration.

The Regulations have been amended to allow the below persons to witness a statutory declaration

  • financial advisors;
  • pharmacists;
  • nurses;
  • accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants;
  • psychologists;
  • veterinary surgeons;
  • police officers; and
  • teachers (only those employed on a permanent full time or part time basis at a school or tertiary education institution).

Further Information

With so many changes happening in the legal sector due to COVID-19 it is important to be fully aware of how these may practically impact you. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form. Check out our blog for further information and analysis on the restrictions and rules in place during COVID-19.

Recent bushfire crisis: My home insurer refused to renew my policy. What do I do?

Recent bushfire crisis: My home insurer refused to renew my policy. What do I do?

The recent bushfires across the country have had devastating effects on the lives of so many Australians. Many have lost homes, treasured possessions and most terribly, a family member or friend.

Recently, we have had clients call us to seek advice on their rights in respect of their home insurance. Some overlooked paying their insurance premium. When they were told to evacuate their homes, they rang their insurer to check that their policy was current and were told that they had not paid the premium and therefore the policy had expired. They asked to pay the premium immediately to renew the policy. However, their insurer refused to renew the policy due to the high risk of bush fires in the area.

Notice Provided by Your Insurer

The Insurance Contracts Act provides that an insurer must notify an insured customer in writing no later than 14 days before the expiration of their policy stating that their policy will expire if not renewed or negotiated in that time.

It is important to note that if the insurer did not provide this notice, even though you did not renew your policy, the policy is taken to continue as if you had renewed for the period of the original policy. So it is important to check first whether you have received this notice.

In August of 2019, a similar event occurred where Coles Insurance declined to continue coverage for properties classified in high-risk flood zones in NSW. Coles Home Insurance informed customers with properties in Waterside Estate that it would terminate policies in the area at their time of renewal due to the outlined flood risks in the region. The customers could elect to have the decision reviewed.

Special Circumstances

However, you might be able to show that there were special circumstances that made it impossible for you to renew your policy. These may include that you were overseas, or severely ill and in hospital.

Seeking Legal Advice

It is important to be fully aware of your insurance renewal date and ensure your insurer is keeping you accurately informed about the status of your policy.

If you would like further information regarding building insurance or general litigation or insurance advice, please do not hesitate to contact one of our experienced litigation solicitors on 9963 9800 or via email at law@etheringtons.com.au.

The team at Etheringtons would also like to extend our heartfelt sympathies to all those affected by the recent bushfires and commend the hard work and sacrifice by the fire fighters.

5 Costs to Factor in When Buying a Home

5 Costs to Factor in When Buying a Home

ATTENTION ALL BUYERS!

If you are currently in the process of buying, looking or saving for a house, there are extra costs beyond the property’s price tag that you need to know about.

1. Transfer duty (previously known as stamp duty)

When you purchase a property in NSW, you are required to pay transfer duty. This is a tax on property which varies depending on the value of the property. Generally, you will pay more transfer duty if the property you are purchasing is expensive.

2. Pest and building inspections

Before purchasing property, it is recommended that you have pest and building inspections to determine the property’s condition and to avoid problems and extra costs in the long run. These inspections are especially important for older properties. Make sure you appoint a qualified person such as a licensed builder, surveyor or architect.

3. Mortgage registration

You are required to pay a fee to formally register your mortgage in NSW. This mortgage registration payment is required by the state government to register the security for a home loan. This is important as it allows any potential buyers to check claims against the title of your property.

4. Loan application or establishment fee

When you take out a home loan, you may be required to pay an establishment fee. This payment may be required by the bank to pay for the setting up of your home loan. However, some lenders will waive this fee, so it may be worthwhile to ask.

5. Mortgage insurance

If you are borrowing more than 80% of the property value, you may be required to pay ‘Lenders Mortgage Insurance’ (LMI).  The lender’s valuation of the property determines this fee.

Further Information

It is important that buyers are aware of any additional costs which may be required when purchasing a property. If you have any questions or concerns, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or at law@etheringtons.com.au

Swimming Pool Compliance

If you’re the owner of a Torrens title property that has a swimming pool, you need to be aware of your obligations in relation to swimming pool compliance. Due to the preventable drownings that occur in swimming pools in Australia, a requirement has been placed on pool owners to ensure that their swimming pools are compliant with NSW regulations. This blog will briefly review the compliance and who it applies to.

Who does the compliance apply to?

The compliance for swimming pools applies to all swimming pools and spa pools that are capable of being filled with water to a depth greater than 30cm and are used for swimming, wading, paddling or any kind of human aquatic activity. Every pool owner must register their pool with the New South Wales Government Swimming Pool Register and also have a compliance certificate from either the council or a private swimming pool certifier. This is particularly important if a swimming pool owner plans to sell their property, as a certificate of compliance (or non-compliance) must be attached to the contract for sale. A failure to do so can result in a purchaser being able to rescind the contract.

Certificate of Compliance

A certificate of compliance can be issued by either the local council or a private certifier. In granting the certificate, the certifier will consider a number of safety items such as the fence and enclosure surrounding the swimming pool and the closure on the gate. The objective is to ensure that children do not inadvertently get into the pool area without the intervention of an adult. Once either the council or the certifier have assessed the swimming pool they may provide you with a certificate of compliance. The certificate of compliance can be attached to a contract for sale and it will remain valid for three years from the date of issue.

Certificate of Non-Compliance

If the local council or a certifier inspects your swimming pool or spa and they determine it is not compliant, they may issue you with a non-compliance certificate.  This certificate lists the reasons that the pool does not comply with the regulations and the items that need to be corrected before a certificate of compliance can be issued.

If the pool is deemed a risk to public safety, the swimming pool owner must rectify the non-compliant issues within a certain amount of time.

If the pool is not deemed to be a risk to public safety, the owner must still attend to the issues of non-compliance, however if the pool owner is selling the property containing the swimming pool the owner must attach this certificate of non-compliance to the contract for sale.

The effect of this is that it passes on the obligation to rectify the issues of non-compliance to the purchaser and the purchaser will have ninety days from the date of completion in which to correct the issues raised in the certificate of non-compliance and to receive a certificate of compliance.

A property owner should consult with their solicitor if they are selling their property to ensure that the appropriate certificate is attached to the contract or conversely, if a purchaser is looking at a property that has a swimming pool and either of those certificates are attached they should seek legal advice.

If you would like any further information about swimming pool compliance, please contact our friendly solicitors on 9963 9800 or at law@etheringtons.com.au.

Compulsory Acquisition

New infrastructure in Sydney is continuously being developed to keep up with the demands of a growing population. To build such infrastructure, a public authority – such as the New South Wales government or a local council – may compulsorily acquire some or all of your property to create the space necessary for construction. Some recent examples include the WestConnex project in Haberfield and the Victoria Cross Metro Station in North Sydney.

Compulsory acquisitions can leave property owners feeling frustrated and helpless, and it can be an upsetting and confusing time. However, it is important to know you have more power than you may think.

An experienced solicitor can work with you to ensure you obtain the best compensation for your loss of property. A solicitor’s reasonable legal fees for assisting you in the acquisition process will be covered by the acquiring authority so you will have peace of mind knowing that you will not have to pay for the work performed in receiving advice.

A solicitor can help you by:

  1. Knowing what your property is really worth

A solicitor will help you engage experts who can accurately calculate your property’s financial value. The public authority acquiring your land will retain a valuer to estimate what they believe your property is worth, but it is often skewed towards the acquiring authority, which may not reflect the property’s true worth. It is important that you engage a solicitor who can help you ascertain the true value of your property.

  1. Ensuring you receive the maximum payment

There are a number of costs associated with the compulsory acquisition of your property including conveyancing fees and real estate agent’s commission (for the purchase of a new property) and removalist’s costs and legal fees (for the acquisition of your property). The purpose of the compensation provided by the acquiring authority is to leave you in the same financial position you would have been in but for the acquisition. A solicitor will ensure that compensation includes the hidden costs of acquisition that are often unrecovered.

  1. Negotiating

A solicitor can help you to prepare for negotiations with the acquiring authority. Even though the acquiring authority will send you an initial offer, your solicitor can assist you with your negotiations to ensure that you receive a fair dollar amount for the acquisition of your property. We will act on your behalf throughout the discussions and negotiations with the acquiring authority to ensure you achieve the best result.

  1. Putting together your claim

Our solicitors can assist with putting together all aspects of your claim to present to the acquiring authority. We can ensure that you will present a counter offer which is well-supported and well-documented so that you have the best chance of achieving a fair result.

  1. Guiding you through the process

One of the many benefits of engaging a solicitor through this process is that we will support you every step of the way and you can feel assured that you are in capable hands.

Etheringtons Solicitors has acted in numerous compulsory acquisitions cases for our clients, including for properties acquired for the Victoria Cross Metro Station in North Sydney, Martin Place and Pitt Street Metro Stations in Sydney CBD and Waterloo Metro Station in Waterloo.

If you have been or think you will be affected by a compulsory acquisition and would like assistance in ensuring you are provided fair compensation, please contact us on 9963 9800 or at law@etheringtons.com.au