Nautilus’ Top 10 Reasons for Non Payment of Body Corporate Levies

As Body Corporate Lawyers, we’ve heard every excuse imaginable.

Our top 10 favourites are:

  1. “I didn’t pay my levies because no one respects me.” (Sorry – respect has nothing to do with your legal obligations.)
  2. “When I bought the unit 20 years ago the levies were $150 a quarter and now they are $500 a quarter – I’m being robbed!” (Sorry – it’s called inflation.)
  3. “I didn’t approve the budget. I’m only paying what I think is fair and the other owners can pay the rest.” (Sorry – majority wins in strata living.)
  4. “What do you mean I haven’t paid my levies?? I paid them once two years ago!!” (Sorry – levies keep falling due – it’s not a once off expense.)
  5. “The Body Corporate doesn’t cut my grass, so I’m not paying my levies.” (Sorry – the Body Corporate isn’t responsible for cutting your grass.)
  6. “The gardener assaulted me – the weed whipper stirred up the grass and I was hit by the flying grass when I walked to my car. I want compensation, I have gone to the police and I am not paying my levies until I get justice.” (Sorry – but weed whipper incidents do not constitute an offset for levy liability.)
  7. “The letting agent has not paid my rent, so if I am not getting paid – neither is the Body Corporate!” (Sorry – the Body Corporate isn’t your letting agent or tenant, you can’t offset one against the other.)
  8. “I gave my time to the Body Corporate and they didn’t pay me, so I am deducting the value of my time against my levies.” (Sorry – but trimming your bushes does not offset your levies.)
  9. “My spouse and I are going through a divorce – they live there, they have to pay it!” (Sorry – but you both own the property, you are both liable to the Body Corporate.)
  10. “What are levies?” (Seriously?)

Owners must appreciate that it is their legislative duty to pay levies as and when they fall due.  Disputes in respect to the amounts of validly raised levies need to be made at an AGM/EGM level – and not as a separate vendetta by non-payment.  Additionally, an owner is not at liberty to offset from levies, any alleged or real claims the owner may have against the body corporate (such as a claim for payment of damages caused by the body corporate to an owner’s exclusive use area, consequential to a repair made to common property).  Careful consideration has to be made to arguments by owners as  to the responsibilities of the body corporate in relation to maintenance matters, and this is dependent on the scheme type (for example, an owner cannot impose maintenance costs on the body corporate in respect to the owner’s lot – but equally, a body corporate cannot impose a levy in respect to maintenance costs in respect to lot except in a strictly narrow set of circumstances).  Importantly, owners have to appreciate the body corporate is not a charity, bank or financier – and has absolutely no obligation to grant payment plans, abstain from raising levies and/or otherwise provide financial assistance to owners.

At Nautilus Law Group, we work zealously for our bodies corporate to recover unpaid levies in a timely and cost effective manner.  Sometimes, the most effective method of achieving the recovery is spending the time to educate owners.  By no means is it the bodies corporate responsibility to have to “educate” its owners; however, transparency and education achieve results.  When, transparency and education do not work, then the legal system must intervene.

If you have questions about body corporate levy recovery, please do not hesitate to contact our Team to discuss your matter on (07) 5574 3560 – or – by emailing our Team at Info@nautiluslaw.com.au.  We look forward to speaking with you.  Katrina Brown, Senior Lawyer.

Estate Planning Myths Series: Anyone can challenge a Will – it’s not worth the paper it’s written on

A Will is one of the most important legal documents you will make and must be tailored in accordance with your individual needs. It sets out your wishes for the distribution of your estate and provides directions as to who is appointed as your executor and how they should manage your estate.

The failure to execute a Will before your death will mean that you die ‘intestate’, leaving your assets to be distributed in accordance with legislative provisions (in Queensland, this is pursuant to the Succession Act 1981 (QLD) (the Act) – other States have similar legislation), which may not be in accordance with your wishes.

Further, a failure to seek professional legal advice to prepare a Will, attempting to draft your own Will, or neglecting to make sufficient provision for your spouse, descendants and dependants may result in a Family Provision Claim against your estate.

What is a Family Provision Claim?

Family Provision Claims are made under Part IV of the Act and are the most common type of challenge to a Will.  The Act provides that whether a person dies testate (having a Will) or intestate (without a Will), the court may, in its discretion, apply such provision as the court thinks fit having regard to the status of the individual making the claim and whether they qualify as a dependant on the deceased.

Who can make a Family Provision Application?

A deceased person’s spouse, child or dependant is entitled to bring a Family Provision Application seeking proper support and maintenance from the estate of the deceased.  Each potential claimant will be considered in detail below.

Spouse:

At law, a person’s spouse is entitled to a distribution from the estate if they are the husband, wife, de-facto partner or a registered partner of the deceased.

Children:

The definition of child under the Act is broad.  Children who may bring a Family Provision Claim include not only the deceased’s natural or legitimate children, but also step-children and adopted children.  Foster children may bring a claim if they can establish that they were wholly or partially dependent on the deceased and were a member of the deceased’s household.

Dependant:

A claimant may also fall within the category of a Dependant, which is defined as “any person who was wholly or substantially maintained or supported … by that deceased person at the time of the person’s death being:

  • a parent of that deceased person; or
  • the parent of a surviving child under the age of 18 years of that deceased person; or
  • a person under the age of 18 years.”

Accordingly, a dependant may be a parent of the deceasd person.

 So – if a Family Provision Claim can be made in any instance, what’s the point in writing a Will?

In the event of a Family Provision Claim, the Will is one of the primary documents upon which a court will rely, as this document sets out the testamentary intentions of the deceased.

While there is no concrete method of preventing a Family Provision Claim being lodged – there are various methods by which the chances of a claim being lodged, or of such a claim being successful, can be decreased.

When a court considers a Family Provision Claim, the deceased’s views will be considered.  However, there is no guarantee that the court will uphold the wishes contained within the Will if the claimant can demonstrate the need for proper support or maintenance.  It is, therefore, paramount to consider every possibility which may arise, and to draft a Will that considers all potential claimants and provides security and protection to ensure your estate is distributed as you intend.

If you are excluding any of the potential claimants from receiving a distribution under the Will, or effecting a distribution that is less than what may be considered by a court to be “proper entitlement”, it is important that you record the reasons for such exclusion or reduction with either a clause included in the Will or alternatively executing a signed statement to be kept with the Will.  There are various supplementary documents which can be prepared by your solicitor setting out the reasons a lesser provision was made for potential claimaints.

If you would like to speak to our estate planning team about drawing a Will or potential Family Provision Claims, please contact our office on 07 5574 3560 or via email at info@nautiluslaw.com.au.

Cudoos to Jacinda Arden – you are one amazing leader!

Cudoos to Jacinda Arden – you are one amazing leader!

It’s official…Jacinda Arden is Nautilus’ pick for leader of the year. 

This amazing human being is a mum of a young bub, prime minister of New Zealand, she led a nation through a tragic terrorist attack,  she protected her masses through the Covid-19 pandemic, she soothed families and a nation mourning after a volcano disaster took many souls and now…she has conducted a press conference in an earthquake. 

The world needs more cool, caring leaders  – like Jacinda! 

We at Nautilus – just want to give a shout out to Jacinda and say – thanks…thanks for finding positivity in bleakness, thanks for showing empathy in times of turmoil, thanks for showing perseverance against criticism and thanks for demonstrating humour under pressure.  We aspire to be a bit more like Jacinda!

Thank you to Australian Associated Press for their article:  https://www.news.com.au/world/breaking-news/wellington-shakes-to-58-earthquake/news-story/93d518f37f242b5c09d4ef6ed6e7a37e 

 

I want to lease my Queensland retail shop – what next?

I want to lease my Queensland retail shop – what next?

You are a property owner with retail shop and you want to lease the shop. If you are in Queensland, you must comply with the Retail Shop Leases Act 1994 (QLD). To keep you on track, we provide links to the Queensland approved forms for use when you want to lease your Queensland retail shop.

Step 1: You must provide the proposed lessee with a “Lessor Disclosure Statement” at least 7 days before the lessee enters into the lease.

https://www.publications.qld.gov.au/dataset/retail-shop-leases-forms/resource/2c3c0a67-dd91-461f-9adf-211c365bd8c9

Step 2: You must provide the proposed lessee with a “Lessee Disclosure Statement”, which the lessee must complete and return to you before finalising the lease (although they can provide to you with the signed lease if you accept this deferral).

https://www.publications.qld.gov.au/dataset/retail-shop-leases-forms/resource/809e8911-a270-491f-9789-f89d8af0eab2

Step 3: You must provide the proposed lessee with a “Financial Advice Report”, which must be completed and returned to you. The Financial Advice Report must be completed by an accountant who acts for the proposed lessee.

https://www.publications.qld.gov.au/dataset/retail-shop-leases-forms/resource/a6ae0d8e-4292-4965-8b27-062700ccc492

Step 4: You must provide the proposed lessee with a “Legal Advice Report”, which must be completed and returned to you. The Legal Advice Report must be completed by a solicitor who acts for the proposed lessee.

https://www.publications.qld.gov.au/dataset/retail-shop-leases-forms/resource/f02df614-8146-4326-8fc9-f499ef692e41

Step 5: In any circumstance in which any amount other than rent is going to be charged by you to the proposed lessee, you must complete the Estimate of Outgoings and provide to the proposed lessee with the above documents. It is critical you make this disclosure as close to factual as possible, as substantial discrepancies provides the lessee with a defense to claims for outgoings.

https://www.publications.qld.gov.au/dataset/retail-shop-leases-forms/resource/6d7f02d7-0877-4c91-ae52-dc0550e70ce2

A retail lease is far more complex than a standard commercial lease. This is because the Queensland legislation requires you, as lessor, to disclose and receive disclosure on specific matters. A failure on your part to properly disclose or receive disclosure, notwithstanding the best written lease, exposes you to damages, which include potential voiding of the lease and refunding of charges raised.

Nautilus Law Group have seasoned property lawyers and conveyancers who can assist you with your retail leasing needs – from settling the original disclosure, to preparing the lease and amendment documents, to dealing with disputes. We offer fixed fee services for most property matters, and welcome you to make enquiry with our team by telephone to 07 5574 3560 or info@nautiluslaw.com.au.

Is an Executor paid for dealing with an Estate?

Is an Executor paid for dealing with an Estate?

Is the Executor paid for acting in a deceased estate?

The duties and responsibilities of acting as the Executor of a deceased Estate can be onerous and time consuming; therefore, if appointing a person to act on your behalf, you should consider whether any provision should be made for such person to compensate them for taking on the role.

Under the Succession Act 1981 (Qld) (the Act), a person acting as the Executor of the Estate is entitled to receive a just and reasonable commission for their attendances in acting as the Executor of your Estate, provided such commission is authorised by the Will, authorised by the Court (in accordance with section 68 of the Act ) or agreed by all beneficiaries of the Estate. In the event such payment is authorised, it would be paid from the assets of the Estate prior to distribution.

However, depending on the value of the Estate, this is something that you may wish to specifically address in your Will; whether to authorise or prohibit such payment, or to make alternative provision.

For example, as a commission payment is generally paid as a percentage of the net value of the Estate, if the value of your Estate is significant, the payment of an Executor’s commission can be a large sum and may significantly reduce the value of your Estate (and, in the event your Executor is also a beneficiary of your Estate, could result in a disproportionate distribution to beneficiaries). This may be considered particularly unreasonable if the attendances by the Executor in administering the Estate have been minimal in comparison to the amount of compensation received by way of commission.

In order to avoid the payment of a percentage of your Estate as commission, or payment of a disproportionate sum, it is also possible to include a clause in your Will directing that your Executor is authorised to be paid for their attendances in administering your Estate at an hourly rate (set by you – such at a specified hourly rate, or a rate equivalent payable to bookkeepers in your local area at the date of your death).

If you wish to review your Will to ensure your Executor is appropriately remunerated for acting in the administration of your Estate, please contact our team on 07 5574 3560 or via email to info@nautiluslaw.com.au.