Are you buying a new house or apartment?

The Home Warranty Insurance Scheme exists to protect purchasers (including subsequent purchasers) from incomplete or substandard building work, whether structural or non structural.

Some key items to be aware of with this scheme are:

Certificate of Insurance

A builder, developer or tradesperson must supply a Certificate of Insurance from an approved insurer. If you are an owner/builder and work was done within the previous 6 years, a Certificate of

Insurance is also required . However, the Certificate of Insurance is only required when the Contract price is $20,000.00 or if the labour and materials supplied is over the value of $20,000.00 (previously $12,000.00).

Policies before 1 July 2002

For policies issued before 1 July 2002 cover is provided for 7 years from the date of completion of the work or the end of the contract for the work, whichever is the later for loss arising from defective work.

Policies after 1 July 2002

In October 2011 the NSW Government passed a series of amendments to the scheme for policies issued after 1 July 2002. Previously the insurance cover for structural and non structural

defects was 7 years. Changes to this scheme now reduce the period for claims to 6 years for structural defects and only 2 years for non structural defects. The new statutory warranty periods came into effect on 1st February 2012.

Notifying Insurers

The October 2011 amendments also include a requirement to notify the insurer in writing for policies created after 30 June 2002 (even if you have verbally notified your insurer about making a claim). You will be allowed 6 months from 25th October 2011 to notify your insurer in writing.

There is a mechanism allowing a delayed claim may be made if you are able to demonstrate that you pursued the negligent party to rectify the problem and notified your insurer during the insurance period.

If your policy was issued before 1st July 2010 all claims must be lodged within 10 years of the work being completed.

If you're not sure were you stand in relation to an insurance issue, please do not hesitate to contact us at MBBF.

Who Will Decide For You If You Can Not Decide For Yourself?

Living busy lifestyles causes us to put “ think about planning ahead “on the back burner.

We take it for granted that we can make our own decisions about a range of issues, large and small that affect our lives. For more complex decisions we may seek advice from others but decide ourselves whether or not to follow that advice.

The important factors in this matter are:

CAPACITY

Capacity means that when making a decision you have the ability to: 

• Understand the facts involved
• Understand the main choices
• Weigh up the consequences of the choices
• Understand how the consequences affect you
• Communicate your decision

You must have capacity to make decisions about:

• Making a Will
• Buying or selling a property
• Taking out a loan
• Investing money
• Making a Power of Attorney
• Making an Enduring Power of Attorney
• Entering into a Contract

The law presumes adults have the capacity to make their own decisions until proven otherwise. However, if you do not have the capacity to make these decisions they will not be legally binding.

The capacity to make decisions can be affected by illness, injury or age. This loss of ability to make decisions may be total or partial. We may lose capacity to make any kind of decision or we may lose capacity to make more complex decisions. The loss of capacity may be temporary or permanent.

WHO WILL MAKE DECISIONS FOR YOU?

Have you thought of who will make your decisions for you if you do lose capacity? You can decide in advance who you would like to make decisions for you if you can no longer do so.

If you do not plan ahead and you lose capacity it will be too late to choose who you want to be the decision maker. Those who you love will need to approach the Guardianship Tribunal to be appointed your guardian.

THE TWO CATEGORIES OF DECISIONS

The law divides decisions into:

Financial decisions – which can cover dealing with bank accounts, transferring of money, paying bills, dealing with shares and buying and selling real estate.

Lifestyle decisions – these can be about where you live, what services you should receive, what medical and dental treatment you might need.

HOW CAN YOU PLAN AHEAD?

In NSW there are two special documents you can use:

• A General Power of Attorney
• An Enduring Power of Attorney

At MBBF we help people to understand the significance of these documents and assist them with their preparation. Making sure that your family members and yourself are prepared in the event of a loss of capacity.

Joint Ventures

I have been advising on business structures for 40 years.

I'm still dismayed how often when I am approached to advise on:

 -        Parties going into a joint venture, the party who is engaging me comes along with documents someone (including business, financial and legal advisers) have not covered the fundamentals resulting in little attention if things go wrong including one of the parties not fulfilling what was expected of them; and

-        One of the joint venturers finding himself in a structure and in effect powerless.

Very often the parties have resisted the advice too confident to be objective and circumspect to think about the fall back position.

I am quite happy to give pointers to anyone who's interested in advice on business structures .

Victor Berger