MMP223 Property Law and Practice. Trimester 2, 2022Assignment 1 Legal Report - Individual Assignment.25% of Unit Assessment (1,250 words*)Due Date:
MMP223 Property Law and Practice. Trimester 2, 2022Assignment 1 Legal Report - Individual Assignment.25% of Unit Assessment (1,250 words*)Due Date: August 12th, 2022, 8.00 PM, AEST.
Assignment Brief:
You work for DK law firm which specialise in property and tenancy law. Your new boss Jenny Dee has just moved to Victoria from interstate. As she is not yet familiar with Victorian processes, she has asked you to sit in an interview with a new client Jim so you can assist her.
Jim and his brother Clyde used to be in business together where they jointly owned a real-estate agency. They had a falling out 10 years ago in 2012 and Jim transferred his share of the business to Clyde.
Jim and Clyde also co-own a large home in Sorrento Victoria (property) that they both inherited from their grandmother in 2004. The property was valued at $350,000 in 2004 but Jim thinks it is worth $1,500,000 now. The property is really old and has needed a lot of work to be done to maintain and fix the property. From 2018, Jim believes that the rent money has been used to pay for the property repairs.
The property is currently rented to the Samantha and Brendan Jones under a 2 year fixed term lease. The Joness moved into the property last year and live in the house with their 3 young children. Clyde manages the lease through his real-estate agency.
Jim lost his job during COVID, is in debt and wants to sell the property but he doesnt know how to go about doing it. Jim said his brother Clyde does not want to sell. Your boss Jenny thinks that it might be possible to force a sale of the property if he applies to the Victorian Civil and Administrative Tribunal (VCAT). Jim wants to know (a) what the VCAT is, (b) understand the process and costs involved in commencing and running any litigation and (c) the likely outcome, before he takes it further.
Jenny has asked you to prepare the client report as you are more familiar with the VCAT and will be able to write a clear concise report for the client. There are a number of questions outlined below (research scope) that need to be researched and outlined in your report.
1.Provide a brief outline of the Victorian Civil and Administrative Tribunal (VCAT) and whether the VCAT has jurisdiction to hear a matter related to co-ownership.
2. Discuss the application process and what information is required to complete an application form. Will Jim have to pay an application fee and if so, how much is the fee?
3.What orders can the VCAT make if he is successful in forcing a sale of the Sorrento property? Can Jim request the property be sold at auction?
4.Clydes marriage has broken up and he is going through nasty family law proceedings at Court. Will this affect a decision of the VCAT?
5.It turns out that Clyde did not use the rent money to fix the property. Jim believes that the rent paid since 2018 would have been $80,000. Jim wants to know if he can recover half of the rent he didnt receive.
6.Jim would like to know the general procedure after an application form is submitted to the VCAT and any other information you think that Jim should know before he takes any action.
Jenny thinks that the Property Law Act 1958, the Victorian Civil and Administrative Tribunal Act 1998 and the Residential Tenancy Act 1997 will be useful in preparing the report. In answering the questions above you are required to refer to the relevant Acts and appropriately reference the information to ensure the accuracy of the advice in your client report.
The report is to be written in a way that the reader can easily understand.Ensure the accuracy of your information and therefore appropriately reference the information: Acts, Cases, etc. (Victorian Civil and Administrative Act 1998).Hints and tips:
Keep your client in mind when writing the report.They can search things online for themselves, but they came to the firm with an expectation that you will offer value via; researching, summarising and clearly explaining things to them.
The AustlII database will assist you in identifying any relevant legislation. AustlII is introduced in Seminar 1.
Cite the legislation (as this is the primary source of information). Dont primarily use websites to reference legislative provisions. This is an exercise in reading and understanding the legislation. Youll need to navigate the relevant legislation.
Determine your own headings; consider the best number of them to use and the wording too.
Do not simply cut & paste information. Rather, use your own words to explain the information to the client. Remember this is legal work, to be written in a legal tone.
Turn It In. A long reference list will lead to a high Turn It In (TII) score, partly also as the word-limit is just 1250. We allow for this, though your TII score should not exceed 40%.
Do not use tables or dot points (except in occasional instances where warranted.)
Provide a title page, introduction, and body of report (broken into section with headings), a conclusion and recommendation(s).
No executive summary or table of contents is required.
Your report should be professionally written with 1 or 1.5 line spacing, should include page numbers, and with no page borders.
We recommend searching online to view industry law reports and letters, as they will guide you on the succinct legal presentation required.
This is an individual assignment.
For assignment queries, use the discussion board
To help you to maximise your assessment and to improve your skills, this assignment will be marked in accordance with the marking criteria in the Rubric. Please check it carefully.
You must cite your references. Check Seminar 1 (week 1) for reference writing help.Also: https://www.deakin.edu.au/students/studying/study-support/referencing/aglcAdditional Notes:* The word count is +/- 5%, plus references. References are not included in the 1250 words. We appreciate the word count is low, this is to encourage succinct writing.Keep in mind that in a legal matter (dispute) any extra word you write gives an additional chance of mis-understanding, error, and/or, of writing something that may work against you. Often, the less said the better. Keep in mind also, that lawyers are expensive. The more they have to read and write, the more it costs us, as property people. Hence, less is better.** Consider the sources of your references. For example, referencing an Act, is better than referencing a website about an Act. More and higher quality references add value to your report/letter.***Apologies to students outside of Victoria. Other States all have their versions of CATs, though we ask that you focus on the VCAT for consistency in the unit and so our markers can apply their expertise.
Assessment Criteria
To help you to maximise your assessment and to improve your skills, this assignment will be marked in accordance with the marking criteria.
Note: You must cite your references using AGLC referencing - https://www.deakin.edu.au/students/studying/study-support/referencing/aglcSubmission
You are to submit your assignment in the individual Assignment Dropbox in the [MMP223] CloudDeakin unit site on or before the due date.
When uploading your assignment, name your document using the following file name:your surname, your first name, your Deakin student ID number, the unit code, the unit name, year and trimester, .doc (or .docx) Do not use the file name Ass 1.
Submitting a hard copy of this assignment is not required.
You must keep a backup copy of every assignment you submit,until the marked assignment has been returned to you. In the unlikely event that one of your assignments is misplaced,you will need to submit your backup copy.
Any work you submit may be checked by electronic or other means for the purposes of detecting collusion and/or plagiarism.
When you submit an assignment through your CloudDeakin unit site,you will receive an email to your Deakin email address confirming that it has been submitted.You should check that you can see your assignment in the Submissions view of the Assignment Dropbox folder after upload,and check for,and keep,the email receipt for the submission.
Marking and feedback
The marking rubric for this task is below and also available in the [MMP223] CloudDeakin unit site - in the Assessment folder (under Assessment Resources).
It is always a useful exercise to familiarise yourself with the criteria before completing any assessment task. Criteria act as a boundary around the task and help identify what assessors are looking for specifically in your submission. The criteria are drawn from the units learning outcomes ensuring they align with appropriate graduate attribute/s.
Identifying the standard you aim to achieve is also a useful strategy for success and to that end, familiarising yourself with the descriptor for that standard is highly recommended.
Students who submit their work by the due date will receive their marks and feedback on CloudDeakin 12 working days after the submission date.
Extensions
Extensions will only be granted for exceptional and/or unavoidable circumstances outside the students control.
Students seeking an extension for an assignment prior to the due date should apply directly to the Unit Chairby completing theAssignment and Online Test Extension Application Form.Requests for extensions will not be considered after 12 noon,Aug 10th, 2022. Applications for special consideration after the due date must be submitted via Student Connect.
Late submission
The following marking penalties will apply if you submit an assessment task after the due date without an approved extension: 5% will be deducted from available marks for each day up to five days, and work that is submitted more than five days after the due date will not be marked and will receive 0% for the task.
'Day' means working day for paper submissions and calendar day for electronic submissions. The Unit Chair may refuse to accept a late submission where it is unreasonable or impracticable to assess the task after the due date.
Calculation of the late penalty is as follows: EG: this is based on the assignment being due on a Thursday at 8:00pm
1 day late: submitted after Thursday 11:59pm and before Friday 11:59pm 5% penalty.
2 days late: submitted after Friday 11:59pm and before Saturday 11:59pm 10% penalty.
3 days late: submitted after Saturday 11:59pm and before Sunday 11:59pm 15% penalty.
4 days late: submitted after Sunday 11:59pm and before Monday 11:59pm 20% penalty.
5 days late: submitted after Monday 11:59pm and before Tuesday 11:59pm 25% penalty.
Dropbox closes the Tuesday after 11:59pm AEST time.
Support
The Division of Student Life (see link below) provides all students with editing assistance. Students who wish to take advantage of this service must be organized and plan ahead and contact the Division of Student Life in order to schedule a booking, well in advance of the due date of this assignment. http://www.deakin.edu.au/about-deakin/administrative-divisions/student-lifeReferencing
Any material used in this assignment that is not your original work must be acknowledged as such and appropriately referenced. You can find information about plagiarism and other study support resources at the following website: http://www.deakin.edu.au/students/study-supportAcademic misconduct
For information about academic misconduct, special consideration, extensions, and assessment feedback, please refer to the document Your rights and responsibilities as a student in this Unit in the first folder next to the Unit Guide in the Resources area of the CloudDeakin unit site.
Provide a brief outline of the Victorian Civil and Administrative Tribunal (VCAT) and whether the VCAT has jurisdiction to hear a matter related to co-ownership.
VCAT outline:
The Victorian Civil and Administrative Tribunal (VCAT) is a cost effective and timely substitute for resolving conflicts in court. VCAT aims to provide fair, affordable justice VCAT website to site by helping parties come to an agreement and resolve conflict. The courts have the jurisdiction to hear civil and criminal cases, whereas VCAT will not typically hear criminal cases, hence using VCAT is often quicker. S.40 (VCAT) states that the tribunal has two types of jurisdictions: original jurisdiction and review jurisdiction; original jurisdiction meaning VCAT is the first instance decision-maker under the Act (VCAT to make an original jurisdiction decision | VCAT, 2022). Original jurisdiction relates to the tribunal resolving cases that parties have applied to the tribunal in accordance with VCAT regulations and the matter of resolution aligns with tribunal under an enabling enactment.
Review jurisdiction allows the tribunal to review or reconsider decisions made by an original decision maker such as government agency, a statutory authority or other administrative decision maker VCAT website to site. Under S.45(2) (VCAT) for a review to commence a request must be submitted within 28 days of the decision day. MAKE RELEVANT TO CASE STUDY?
Co-ownership matter: property law act
Matter relating to co-ownership conflictions of land can be heard by the tribunal, under Part IV of the Property Law Act 1958. Under S.225 of the Property Law act states that the tribunal can take on matters relating co-ownership. Co-ownership matters under property law S.225 act include conflicts relating to the sale of the land or good and the division of the proceeds among the co-owners, or the physical division of the land or goods among the co-owners.
Discuss the application process and what information is required to complete an application form. Will Jim have to pay an application fee and if so, how much is the fee?
Application process:
s.67 An application the Tribunal must included any documents or further information required by the rules and must be lodged in the manner specified in the rules. S.67 (2) the rules may require an application to be verified by statutory declaration or in any other manner. S.67 (3) If two or more persons are eligible to make apply to the Tribunal, a joint application is suggested.
Application Fee:
S.68 When an applicant applies to the Tribunal a prescribed fee may be required. In the event of joint applications the principal registrar may establish the fee payable as if their were no joint application (fee payable separately). When the fee is not paid at the time of application lodgement, the Tribunal is likely to not respond to the application. Reduction, waiver, postponement, remission, or refund of fees can ensue when the person responsible for the fee payable is under financial hardship under S132.
As of the 1st of July 2020 the application fee is $65.30 for eligible applicant. Those who have an intervention order, health care card, under 18 years old, are incarcerated or are represented by Victoria Legal Aid or similar are exempt from the application fee.
The application process can be slightly varied depending on the reason for accessing VCAT, however for property related issue, firstly, fill out the prescribed VCAT application form (General application- Residential Tenancies found on the VCAT website). Next, collect evidence of the issue, for the hearing. For example, collect affidavits, witness statements, expert report, financial records ect (make specific to the case study)? Lastly, send the prescribed form to VCAT, in person, electronically via VCAT website or by post. When submitting the form online it recommended to send an email to renting@vcat.vic.gov.au to let them know about the urgent matter.
https://tenantsvic.org.au/advice/landlord-problems/vcat/ there is more information on here regarding the process, not sure if necessary.
https://tenantsvic.org.au/advice/landlord-problems/vcat/applying-to-vcat/What orders can the VCAT make if he is successful in forcing a sale of the Sorrento property? Can Jim request the property be sold at auction?
Commonly, the tribunal can enforce a sale of co-owned land, if one co-owner requests and applies for the land to be sold. Essentially under s.228 (PLA) the tribunal can make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs. Without limit the tribunals powers it can order the sale of land or goods and the division of the proceeds of sale among the co-owners; or the physical division of the land or goods amount co-owners s.228. VCAT may make any order to ensure a just and fair sale or division and without limiting its powers may order sale and the division of proceeds (s. 228(2)(a)) and/or physical division (s. 228(2)(b) and (c))- rewrite in own words. The tribunal concludes a fair and just outcome by evaluating the use of the land, if division of the land is practical and whether a party has attachment to the land, the land has unique or has special value s.229- write this better.
The tribunal can rule how the sale of the co-owned land occurs, for example it can make orders relating to private sale, auction, choice of agent, conveyancer cite this legal website which is found in S.323 (PLA). Regarding, the force of sale for the Sorrento property there is proof required for the grant of any form of relief, nor are any particular matters nominated as defences (Moll v Noblett [2009] VCAT 353 at [39]).moll v noblett case. During the Moll v Noblett case it was decided that no fault divorce relating to co-ownership, meaning no evidence of discontent behaviour has to be proven by co-owners moll v noblett case.
