Christmas is almost here. The one time of the year when professional services close their offices for a week. Great for employees. However, our personal lives do not stop. We may be in the middle of purchasing or selling property, in the process of negotiating a lease for your business, or in the midst of preparing your Will and Enduring Power of Attorney. If we are in the middle of this crucial process, what are we meant to do during this period when our lawyer cannot be contacted?
Purchases and Sales
If you are buying or selling a property, then have no fear. Your Contract terms already advise what will happen if a condition is due during the Christmas period.
Standard Term 10.5 of the REIQ Contracts states that if a condition (deposit, building & pest, finance or settlement) is due on a day that is not a business day, then the condition is due instead on the next business day.
Every year, the government sets 25 December, 26 December, 1 January and 2 January (sometimes, depends on whether 1 January fell on a weekend) as public holidays. Saturday and Sunday are the weekend days and are not considered business days. However, the definition of ‘Business Day’ in the REIQ Contract also advises that 27 December, 28 December, 29 December, 30 December and 31 December are not considered Business Days.
Ultimately what this means is that if you have a contract condition where the condition is due between 25 December and 1 January, then the due date of your condition is automatically extended to either 2 January or 3 January (if 2 January was deemed a public holiday by the government).
There are situations where a professional service may still have their office closed for the first week of January and only reopen on the second week of January. If you have a lawyer, building & pest inspector or mortgage broker whose office is closed during the first week of January, then you will need to request a mutual agreement from the other party to extend the due date of your conditions until a date that all your contacts reopen their offices.
If you are in the process of preparing a will, it is critical that not only that the lawyer drafts it, but you sign it before Christmas. Just having a draft will is not enough, there are numerous complex requirements, that a lawyer is aware of, for a will-maker to validly sign a will.
If even one requirement has not been completed correctly, then the Will is not valid and the will-maker’s will is treated as an ‘informal will’. An informal will is the term for a will that hasn’t been signed correctly, that could just be a will in its draft stages, it can also include wills that have not been signed correctly (eg. missing the date the will was signed). While the Queensland Supreme Court does have the overriding power to accept a document that hasn’t been validly sign and declare it a will, this process requires hearings and collecting evidence, which will cost the estate more money that it would have for the will to have been signed correctly before Christmas.
The harsh reality is that the Christmas break brings one of highest mortality rates on the road. You don’t want to be stuck in the unfortunate situation where you started the process, you had your Will drafted, but the Court doesn’t accept it because it wasn’t signed correctly.
Therefore, it is imperative that if you have commenced drafting a Will, that you have it finalised, signed and the signed version reviewed by a lawyer before the Christmas break.
Retail and Commercial Leases
Leases are very loosely regulated by law. This means that the quick delivery of signing lease documents depends on the quick instructions and responses from the landlord, tenant and their solicitors to complete negotiations and sign the document before Christmas.
A landlord or tenant may believe that they have some sort of protection by signing a Lease Offer or Heads of Agreement before the lease terms are negotiated. However, these Lease Offers and Heads of Agreement are generally unenforceable, as the purpose of these documents are for the landlord and tenant to agree to enter into a lease agreement. The landlord and tenant are only bound to each other once the Titles Office Form 7 Lease has been signed by all parties. This can leave landlords or tenants in a tricky situation when their move in date and a Lease Offer has been signed but the Form 7 Lease is still being negotiated. Sure, you’ve signed an offer saying the property will be leased to the tenant, but without the lease being signed, the landlord is not bound to give the tenant access to the property by the commencement date, until the Lease is signed.
If you have any questions or require assistance with a leasing matter in Queensland, then please contact the property team at NB Property Law for more information.
Kayleigh Swift, Associate
Kayleigh Swift is the Director NB Property Law, where she also showcases her expertise in Commercial and Residential property matters. Prior to joining NoBorders Law Group, Kayleigh was part of a commercial property team in a mid-sized firm and held a position in a local council’s property department.
(07) 3876 5111
Chloe Skubis, Lawyer
Chloe Skubis is a Lawyer in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.
(07) 3876 5111