FEATURED ITEMS

Inadvertent Offence: What is Key-Money?

Under Section 23 of the Retail Leases Act 2003 ("RLA"), it is an offence for a Landlord to seek the payment of any key-money or consideration for the goodwill of any business carried on at the premises.

Essentially, key-money is defined as money (or a benefit of some kind) paid by the Tenant to the Landlord which is a premium and is made in consideration for a lease being granted, varied, renewed or transferred.

An example of this would arguably include the situation where a Landlord agrees to enter into a Renewal of Lease on the condition that the Tenant pays for repairs to the Premises for which the Landlord would ordinarily be liable to pay or on the condition that the Tenant releases the Landlord from any repair obligations it may have.

The prohibition on extracting key-money has the potential to place Landlords inadvertently in breach of the RLA and thereby commit an offence punishable by way of a fine.

We recommend that our clients who are Landlords under a Retail Lease to seek guidance before they demand payment or concessions of any kind from their Tenant's in addition to the rent payable under the Lease.

We also recommend that our clients who are Tenants under a Retail Lease to seek legal advice if they feel their Landlord is making demands for payment in addition to the rent payable under the Lease.

Helen Buchan - Lawyer

Powers of Attorney

Powers of Attorney are documents which enable one or more people to look after your affairs if you are unable to manage yourself.  You may be unable to manage your affairs due to illness, or you may be interstate or overseas.  Powers of Attorney are usually "enduring", this means that the attorney can continue to use the power even if you lose your legal capacity to make reasonable decisions for yourself.
There are three different Powers of Attorney.  Each has a different purpose.

An Enduring Power of Attorney (Financial) allows you to appoint someone to make financial and legal decisions on your behalf, for example, withdrawing money from your bank account, managing your investments and signing a Contract of Sale of real estate or a mortgage.  You can specify when the power commences, and you can include conditions, limitations or instructions about the use of the power.  Not all financial decisions can be delegated to an attorney.  For example, an Attorney cannot use the power to operate a company, or act on a person's behalf in legal proceedings.

An Enduring Power of Attorney (Medical Treatment) allows you to appoint someone to make medical treatment decisions for you if you cannot make the decisions for yourself.  You may be unconscious, or have lost your capacity to make the decision due to illness, for example, due to a stroke.  The Attorney has the power to consent to treatment, and to refuse treatment on your behalf.  Your next of kin does not have the power to refuse treatment on your behalf unless you have given them the power in a Medical Treatment Power of Attorney.

An Appointment of Enduring Guardian allows you to appoint someone to make guardianship (personal and lifestyle) decisions for you if you cannot make the decisions for yourself.  Personal and lifestyle decisions include where a person is to live, how health care is to be managed and who is permitted to visit you.  The most common use of this power is when a person is unable to continue living at home and decisions need to be made about future living arrangements.

There are strict requirements in order to make a valid Power of Attorney.  If they are not followed correctly, the Power may be invalid.  A person can only make or alter the Power while they have legal capacity.  For this reason it is essential that the documents be prepared and signed correctly.  By the time the Power is required and any defects discovered, a person may have lost capacity to make a new Power.

If a person has lost capacity, an application can be made to the Victorian Civil and Administrative Tribunal ("VCAT") for an Administration or Guardianship Order.  This includes someone making an application and attending a hearing on behalf of the incapacitated person. The VCAT process, and its subsequent obligations, is less straightforward than making an Enduring Power of Attorney whilst you have the capacity to do so.

We have extensive experience in this field and would be pleased to advise and help you or your family.

Click here to download your copy of our Wills & Estates Infomation Sheet.

Deb Anderson
Accredited Specialist in Wills & Estates

Beware of Land Tax Errors

A change in the Land Tax Act 2005 (Vic) has resulted in landowners being obligated to notify the State Revenue Office (‘SRO’) of errors in their land tax assessment notices.

Errors that must be notified include where:
• Land in Victoria is not included in the tax assessment;
• Land in Victoria is held on trust, without the SRO’s knowledge;
• Land in Victoria is wrongfully assessed as exempt; and
• Land in Victoria that is jointly owned is not shown to be jointly owned on the assessment notice.
 

The penalties for failing to notify include:
• A monetary penalty of 25 per cent of the additional amount of tax that would have been assessed had the error been notified;
• A monetary penalty of up to 75 per cent of the additional amount of tax that would have been assessed if the Commissioner is satisfied that you intentionally disregarded your obligations; and
• Possible criminal sanctions, including fines and imprisonment, for failing to notify or deliberately evading or attempting to evade tax.
 

Landholders should check their land tax assessments carefully and seek professional assistance if in doubt. The commercial lawyers at Whyte, Just & Moore are able to assist existing and new clients with their Land Tax queries and issues.

Aaron Jolly - Lawyer

Testamentary Trusts

You've probably heard of "Testamentary Trusts", so what are they and why are they so widely used?

Any Trust is a set of rules for the management of property, be it cash, equities or real estate.

A Testamentary Trust is a Trust established by your Will ("Testament") and takes effect on your death.

These Trusts are used widely because they enable your beneficiaries to adopt the most beneficial asset-protective and tax-effective arrangements for the management of their inheritances.

That makes good sense.  Though we don't usually know when we will die, we will have a good idea of the nature and extent of our estates.  We don't usually know with certainty the circumstances our beneficiaries will be in at the time of inheritance, but we can sensibly expect that they will differ, each from the other.  The Testamentary Trust will enable them to choose how to manage their shares of your Estate without reference to your other beneficiaries.

We would be pleased to tell you more about this very significant development in Will making.  Please contact us.

Peter Spear - Partner

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