Property purchase

PROPERTY CONTRACT:  I was shocked to learn that I paid one thousand dollars to an agent to secure an apartment  then some days later he informed me that the apartment  was sold to somebody else. I am so upset about that. Can I sue the agent for misleading me?

The sale of the property does not take place when you pay a “holding deposit” on the property to the agent. The agent (or your lawyer) should have advised you about that paying one thousand dollars as part deposit does not guarantee the purchase of the property. The sale only takes place when contracts of the property are exchanged. Usually the purchaser pays ten per cent – or some other agreed amount – of the price. You did not send me enough details as to what other issues were going on. For example, there may have been several agents, or if some other purchaser acted super-efficiently and paid the required ten per cent deposit to her own solicitor and urged the lawyer to do an expedited, quick exchange that could beat your paying the estate agent one thousand dollars. If the agent claims that you did not tell him to do the purchase on urgent basis, the agent is not likely to be liable.

Will

WILL IN SAME SEXED RELATIONSHIP:  I am a female living with another female in a relationship. We purchased a house together a few years ago. But my partner made out a will that if she dies before I do, the property will be sold and her share is to go to her sister. Can she do that?

There have been a number of cases similar to your problem. First you have to find out if the property was purchased in ‘tenancy in common’ or in ‘joint tenancy.’  Usually in a joint tenancy the surviving partner automatically inherits the property. These days most couples purchase property in joint tenancy. But theoretically, if the property was purchased in tenancy-in-common, your partner can in fact bequeath her half share to her sister. Of course, you will appeal on the basis that in a relationship, even in a same sex relationship, the principle of the surviving partner staying in the ‘family home’ ought to apply. But it is better to discuss this with your partner in a lawyer’s office where you will get immediate feedback about your circumstances.

Under age marriage

. MARRIAGE BEFORE 16 YEARS: I am 15 years and 9 months old  and want to marry my boyfriend  six years older than me but my parents are against it. I love him truly and I think it is unfair that my parents will not let me marry him. Is there anything I can do about my problem?

Yes, there is. First go and see your local Chamber Magistrate. If he/she thinks you have a good case he will refer you to legal aid, if you qualify for legal aid. The matter will be listed for a hearing where your partner to marry must also attend. Usually both of you are put into the witness box to tell the magistrate about your circumstances. Your solicitor will be asking you for detailed information about your capacity to earn reasonable money to be self sufficient, if you are a responsible, mature person, about your employment, your future accommodation and so on. Your partner too will be asked a lot of relevant questions and if the magistrate thinks that you do have the capacity to look after yourselves in a reasonable way for the present and the immediate future, he could make an order that you will be allowed to marry.

Misled about auto-garage

WRONG STRATA GARAGE: I recently purchased an apartment but I did not get the garage of the unit I inspected. The garage I got is smaller that the one I was shown before I signed the contract. The agent said that does not really matter because all garages are really storage space not residential space. Is he right?

Not quite. If some estate agent showed you the wrong garage – the smaller garage, you will have a right to claim against him. You probably won’t have a claim against the vendor- the contract of the sale usually has an exclusion clause which says that the vendor will not be responsible for any mis-description or misrepresentation made of the property by any agent assisting you with the inspection of the property (Look under Special Conditions).  But, usually – something which is a standard procedure, your lawyer should have invited you to his/her office, shown you the plan of the strata building and he/she would have shown you which flat and which garage you’d be purchasing. If whoever did your conveyance did not do that you may have a recourse against that person. Your choice would be, in absence of an exclusion clause and your solicitor not showing you the plans, to sue the agent or the lawyer. My view is that it is easier to get money out of the estate agent than a lawyer.

LIABILITY IN SMALL BUSINESS

I have a small business – a travel agency. I’m not so sure about how liable I am in relation to my business. Any assistance?

People like you who have a small business – travel agency, real estate agency, accounting business even the corner shop proprietor would usually be classified as a ‘sole trader.’ Sole traders are ‘absolutely’ legally liable. This means if someone sues, you could lose all your assets. Theoretically, a sole business owner has what is called a ‘legal entity’. This means you can sue and be sued in your name. If someone is in your office or shop and slips and claims it was your negligence for not keeping the premises clean, they can sue you for unspecified damages. Of course, normally, business owners take out appropriate insurance policies. 

Defamation

 Our social group brings out a monthly journal and in the last issue we included a few lines copied from another major journal. Now we are told what we included in our journal is likely to be defamatory. How can we be liable for defamation when we copied it from another journal?

Theoretically, when one publishes defamatory material, it does not matter whether or not the defamatory material was copied from somewhere else. Defamation, basically, occurs when someone communicates in any way which lowers or is likely to lower the reputation of another. Intention and motive are irrelevant. Basically, what the plaintiff – the one aggrieved by the defamatory statement – has to prove in a defamation case is that what was said about him was defamatory, that the material identified the plaintiff himself and the defamatory material was in fact published, meaning it was spoken or printed or put on air or on the internet. So in publishing defamatory material, even if you were copying it from other sources, theoretically you would be liable. However, the fact that you were not the original offender would be an issue in terms of reduction of damages. Of course, there are a number of defences to defamation especially for journals and newspapers.

Copyright

I gave my idea for a really good song for a band to a bandleader. He wrote it down and he did not give me any credit for it. I thought anything I create will be automatically copyright. Is he right?

For copyright of a song to take place you would have had to materially express it – to write it out in full. You cannot copyright an abstract idea. Only when the idea, something you create, is expressly stated on paper and you put your name as the author of it and put a ‘c’ inside a circle will the song get copyright protection.