Buying Off The Plan

Etienne Lawyers was again asked to film a presentation for ICLE. Steven Brown’s presentation was focused on purchasers buying off the plan and developers selling off the plan. Steven has many years experience acting for both developers selling off the plan and purchasers buying off the plan. He understands the benefits and pitfalls from both the purchaser and developers point of view. Steven’s extensive experience in this area made him the logical choice for ICLE in presenting this area of law as training for other lawyers.

This is a very topical subject at the moment. With the Sydney skyline having more cranes than any other in the world except Dubai. Most of the buildings are new apartments. With interest rates low and overseas buyers being restricted to mostly new properties – new apartments are very popular. Also peaking interest in NSW is the First Home Owner Grant and First Home – New Home scheme offered by the State Government. New apartments can be cheaper than houses and land making them easier to satisfy the rules of the government schemes.

With property prices rising sometimes 10% a year developers can sell a property off the plan and not complete the building for 5 years. In that 5 years the selling price may have increased by $100,000.00 making it advantageous for the developer to decide not to sell to the original purchaser and put the property back on the market and sell for a higher price.

Buying off the plan has advantages for the purchaser but also disadvantages. There have been many examples recently in the media of developers withdrawing properties from sale, changing the size of lots, changing the fixtures and fittings, even reducing the number of bedrooms. All of this was discussed in Steven’s presentation.

There are proposed updates to laws being proposed by several State Governments.

To find out more about Buying Off the Plan, download our free reference here.

Linkedin for Lead Generation

James Cooke from Linkedin Success gave a fabulous presentation on using Linkedin as a Lead Generation Tool for Lawyers. James is passionate about using Linkedin as a lead generation tool and he conveys this passion in his presentations. His presentation was not only educational but practical and fun. James’ vast experience using Linkedin to generate leads for his Debt Collection business has enabled him to develop a proven formula that he now shares both online and in live presentations.

If you would like to learn about using Linkedin as a Lead Generation Tool for your business, why not try James’ free Udemy course

As always Alice from ICLE and Tristan from BAM Studios made the day of filming fun and productive.

Don’t Make Promises in Business You Can’t Keep

The court may decide you must uphold your promises even though you don’t believe you have entered into a contract or legal agreement. Promissory Estoppel is one of the elements of contract law that must be considered when drafting or entering into a contract or agreement.

Promissory Estoppel

A promise must normally be in a deed (legal agreement or contract) or supported by consideration to be enforced. The principle of estoppel however may allow a promise to be enforced even though these requirements are not satisfied.

The development of the concept of “promissory estoppel” in contract law has led to the proposition that a court may decide that a “contract” has come into being even though the traditional rules for contract formation have not been satisfied.

The 5 elements of Promissory Estoppel are:

1. Some form of legal relationship either exists or is anticipated between the parties.

A contractual relationship is the most common type of “legal” relationship. Parties to pre-contractual negotiations also fall within this principle.

2. A representation or promise by one party.

Traditionally, estoppel could only be used with respect to a representation about an existing fact. The High Court decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, however, extended the doctrine to representations about future conduct. This type of “promissory estoppel” arises where the promise is given in circumstances that lead the other party to assume the promise will be performed.

3. Reliance by the other party on the promise or representation.

The party relying on the promise must suffer a detriment

4. Detriment

The party relying on the promise must have suffered some sort of detriment. In other words, the party must be in a worse position for having relied on the promise.

5. Unconscionability

There is no general restriction, which prohibits a person from breaking his or her promise. Accordingly, before an action for estoppel will succeed, it must be shown that, in the circumstances, it would be unfair or inequitable to allow them to do so.

Remedies

The remedies available to someone who has relied on a promise to their detriment are equitable. This means that the court has a discretion in deciding what to do and it will do what it can to relieve the detriment suffered. The courts will not necessarily force the party to honor its promise, unless this is the only way to do justice.

When and How to Use Estoppel

A party seeking to raise estoppel must make out a clear case and show that it would be unconscionable for the promisor to go back on their promise. Unconscionability is really the backbone of estoppel.

It is important to realise that failing to fulfil a promise does not of itself amount to unconscionable conduct, nor does mere reliance on a promise to a person’s detriment. Something more is really needed such as encouragement by the party that the promise will actually be performed.

The principles outlined above should always be the starting point if estoppel is to be used. The nature of estoppel, however, is such that it cannot be defined into simple elements. At best, the principles are a guide as to what the court will look for.

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Buying Off The Plan – Filming for ICLE