Property transactions : a note on ethics

Some activities that are applied in the property market to facilitate transactions have the potential to lead to unethical behaviour. Two conditions required for a sale price to be acceptable as market value are that the transaction is at arm’s length and the parties to the transaction are knowledgeable and prudent. The well-known difficulties associated with access to market pricing information are exacerbated by several of these activities including dummy bidding at auctions, two-tier marketing and the provision of lease incentives. Added to these is a common requirement that any negotiation be commercial-in-confidence. The lack of information has the potential to distort the market and this has been well publicised in recent times particularly in the residential market.
The definition of market value is visited and the nature of ethics in property transactions is outlined. Several examples of activities that could lead to unethical behaviour are described. It is concluded that unethical behaviour is hard to identify. Some recommendations are included for consideration and discussion.

Property Agents and Motor Dealers Act : strike three

The Tourism, Racing and Fair Trading (Miscellaneous Provisions) Act 2002 (“the Act”) which was passed on 18 April 2002 contains a number of significant amendments relevant to the operation of the Property Agents and Motor Dealers Act 2000. The main changes relevant to property transactions are: (i) Changes to the process for appointment of a real estate agent and consolidation of the appointment forms; (ii) Additions to the disclosure obligation of agents and property developers; (iii) Simplification of the process for commencing the cooling off period; (iv) Alteration of the common law position concerning when the parties are bound by a contract; (v) Removal of the requirement for a seller’s signature on the warning statement to be witnessed; (vi) Retrospective amendment of s 170 of the Body Corporate and Community Management Act 1997; (vii) Inclusion of a new power to allow inspectors to enter the place of business of a licensee or a marketeer without consent and without a warrant; and (viii) Inclusion of a new power for inspectors to require documents to be produced by marketeers. The majority of the amendments are effective from the date of assent, 24 April 2002, however, some of the amendments do not commence until a date fixed by proclamation. No proclamation has been made at the time of writing (2 May 2002). Where the amendments have not commenced this will be noted in the article. Before providing clients with advice, practitioners should carefully check proclamation details.

Property investment, construction and economic growth : the case of Malaysia

It is generally accepted that there is a close relationship between property investment and construction activity. The construction sector plays a crucial role in economic development, especially for a developing nation such as Malaysia. However, the volume of new properties added to the property market is only a fraction of the total volume of the property market. Is the conventional assumption of the relationship between property investment and construction supported by empirical data? This paper revisits the tripartite relationships between economic growths, property investment and construction activities with official Malaysian 2000Q1-2010Q4 quarterly time series data. The Granger causality tests are used to establish the causality runs from the GDP to the value of property transactions, and the growth of construction activities to GDP growth. The result is expected to be useful for policymakers and industrial practitioners in formulating industrial policies and corporate strategies.

An analysis of NSW rural property market : 1990-2010

Rural property in Australia has seen significant market resurgence over the past 3 years, with improved seasonal conditions in a number of states, improved commodity prices and a greater interest and purchase of rural land by major international corporations and investment institutions. Much of this change in perspective in relation to rural property as an asset class can be linked to the food shortage of 2007 and the subsequent interest by many countries in respect to food security. This paper will address the total and capital return performance of a major agricultural area and compare these returns on the basis of both location of land and land use. The comparison will be used to determine if location or actual land use has a greater influence on rural property capital and income returns. This performance analysis is based on over 40,000 rural sales transactions. These transactions cover all market based rural property transactions in New South Wales, Australia for the period January 1990 to December 2010. Correlation analysis and investment performance analysis has also been carried out to determine the possible relationships between location and land use and subsequent changes in rural land capital values.

Queensland property legislation update

This article discusses the legislative changes introduced by the new Government in Queensland in 2012 and their impact on property transactions. The changes generally relate to the government’s mandate to reduce red tape in property transactions as well as election promises to reintroduce the stamp duty reduction for the purchase of a home and wind back the previous government’s changes to the lot entitlement provisions of the Body Corporate and Community Management Act 1997.

Property portfolio composition and earnings management for listed property portfolios

In this paper, we investigate how real estate portfolio composition impacts earnings management (EM) of New Zealand listed property portfolios (NZ-LPPs). We employ a panel dataset containing accounting and property data for NZ-LPPs. The findings include: (1) the office property ratio of the real estate portfolio provides the highest incentive for LPPs to engage in EM; (2) LPPs with a higher ratio of industry are less likely to use accrual EM and real EM approaches based on property transactions; and (3) LPPs with a hospital focus prefer accrual EM, while LPPs with a retail focus prefer long-term accrual EM and sales manipulation.

NSW rural land performance : 1990-2008

The annual income return for rural property is based on two major factors being commodity prices and production yields. Commodity prices paid to rural producers can vary depending on the agricultural policies of their respective countries. Free trade countries, such as Australia and New Zealand are subject to the volatility of the world commodity markets to a greater extent than those farmers in protected or subsidised markets. In countries where rural production is protected or subsidised the annual income received by rural producers has been relatively stable. However, the high cost of agricultural protection is now being questioned, particularly in relation to the increasing economic costs of government services such as health, education and housing. When combined with the agricultural production limitations of climate, topography, chemical residues and disease issues, the impact of commodity prices on rural property income is crucial in the ability of rural producers to enter into or expand their holdings in agricultural land. These problems are then reflected in the volatility of the rural land capital returns and the investment performance of this property class. This paper will address the total and capital return performance of a major agricultural area and compare these returns on the basis of both location of land and land use. The comparison will be used to determine if location or actual land use has a greater influence on rural property capital returns. This performance analysis is based on over 35,000 rural sales transactions. These transactions cover all market based rural property transactions in New South Wales, Australia for the period January 1990 to December 2008. Correlation analysis and investment performance analysis has also been carried out to determine the possible relationships between location and land use and subsequent changes in rural land capital values.

Franks family papers, 1711-1821, [1965-1968].

Contains business correspondence, accounts and documents relating to Jacob Franks of New York, his two sons, Moses and David, a nephew, Isaac, and a John Franks of Halifax, possibly a member of the family.

Principal-agent issues in asset acquisition: UK institutions and their investment agents

This paper explores principal‐agent issues in the stock selection processes of institutional property investors. Drawing upon an interview survey of fund managers and acquisition professionals, it focuses on the relationships between principals and external agents as they engage in property transactions. The research investigated the extent to which the presence of outcome‐based remuneration structures could lead to biased advice, overbidding and/or poor asset selection. It is concluded that institutional property buyers are aware of incentives for opportunistic behaviour by external agents, often have sufficient expertise to robustly evaluate agents’ advice and that these incentives are counter‐balanced by a number of important controls on potential opportunistic behaviour. There are strong counter‐incentives in the need for the agents to establish personal relationships and trust between themselves and institutional buyers, to generate repeat and related business and to preserve or generate a good reputation in the market.

Property law reforms in Queensland: Is the regulatory burden on land transactions reduced?

The reduction of unnecessary regulation was a clear policy objective of the Queensland government during 2014. In the area of property sales significant reforms were introduced from 1 December 2014. This article examines the key aspects of these reforms and whether there has been a reduction in red tape for sellers and buyers of land.

Intellectual property management in M&A transactions

Purpose – The purpose of this paper is to focus on the intellectual property (IP) aspects of mergers and acquisitions (M&A) transactions. Design/methodology/approach – A holistic approach is proposed that embraces IP as an integral part of the M&A process in the form of a roadmap for the strategic and purposeful management of IP assets in M&A deals. Findings – Addressing IP issues in transactions in isolation can lead to undesirable consequences (e.g. considerable costs for unplanned purchases of rights). IP due diligence and IP integration project processes can be automated using collaborative software solutions. Thereby, risk can be reduced through the creation of a high level of transparency and predefined responsibilities. Practical implications – Although the proposed IP management framework is based on intellectual property matters relevant to German jurisdiction, conclusions derived and the proposed roadmap are transferable to other jurisdictions and hence have a broader relevance. Evidence for this is provided by the successful application of the roadmap in the context of the multinational transaction stated above. Originality/value – This paper is based on the authors' collective experience, insight and reflected observation of M&A practice gained in advisory M&A roles in management consultancies over a period of more than a decade. The paper summarizes the authors' reflections and observations and brings these into the context of the current management literature. Moreover, this paper builds on earlier published research.

Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

Transfer of Title by a Non-Owner : Personal Property Securities Act 2009 (Cth) exceptions to the nemo dat quod non habet rule

The fundamental personal property rule – no one can transfer a better title to property than they had – is subject to exceptions in the Sale of Goods legislation, which aim to protect innocent buyers who are deceived by a seller’s apparent physical possession of property. These exceptions cover a limited range of transactions and are restrictive in their operation. Australia now has national legislation - the Personal Property Securities Act 2009 (Cth) - which will apply to many transactions outside the scope of the Sale of Goods Act and which includes rules for sales by non-owners which will provide exceptions to the nemo dat quod non habet rule for many common commercial transactions. This article explores the effect of the Personal Property Securities Act 2009 (Cth) on the Sale of Goods exceptions, explains that the new provisions are so wide that there is little continuing relevance for the Sale of Goods Act exceptions, and indicates where they may still apply.

Outline of the Personal Property Securities Act 2009 (Cth)

Australia has new national legislation - the Personal Property Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 – which commenced operation on 30 January 2012. The policy objectives of the new legislation are to increase certainty and consistency and to reduce complexity and cost. To achieve this, the legislation treats like transactions alike, by focusing on substance over form, and so removes distinctions between security interests which have been based on their structure. Differences based on the location or nature of the secured property and the debtor’s legal form, as an individual or company, have also disappeared. We now have one single national scheme and one national electronic registration system for all security interests throughout Australia. The Act applies to security interests in tangible and intangible personal property, including those based on some form of title retention which are not security interests under the general law. This legislation rationalises previous laws and bring about substantial changes to this area of law. This paper seeks to explain the principal changes and their implications.

Equity in estate litigation : setting aside inter vivos transactions post mortem on the grounds of undue influence and unconscionable bargains

Where the value of an estate of a deceased person has been diminished by intervivos transfers of property, equitable doctrines provide powerful tools for practitioners advising those who are seeking to claim benefits under wills (or an intestacy) and those seeking further and better provision from the deceased estate.