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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

When are they classified as abandoned goods?

Goods are classified as being abandoned goods if a tenant has not collected, taken delivery, or not given directions as to the delivery of goods. Goods may also be abandoned if a landlord cannot locate or communicate with the tenant for the purpose of organising collection or delivery.

Goods, however, are not abandoned if a landlord has refused to make delivery or prevented the tenant from taking delivery. Take note that a landlord has no legal right to block the tenant’s access to their goods, even if the tenant has failed to pay rent.

Who bears the cost of storage/delivery?

A landlord is generally entitled to payment from the tenant of a ‘relevant charge’ before delivering or providing access to the abandoned goods. This charge can be on account of the cost of delivery, storage and/or insurance. In all circumstances, the relevant charge must be reasonable.  More information on a ‘relevant charge’ can be found at Consumer Affairs Victoria.

Can I sell the abandoned goods?

A landlord must follow certain steps provided by the legislation in order to dispose of abandoned goods lawfully.

1.     Provide written notice

Generally, a landlord should give written notice to the tenant of his/her intention to dispose of the uncollected goods. If 28 days have elapsed since the giving of the notice and the tenant has not taken delivery or given directions as to delivery, the landlord may dispose of the abandoned goods.

This notice must specify the landlord’s name, the description of the goods, the address at which the goods may be collected, the cost of the relevant charge and the date on which the goods must be collected. The notice can be given to the tenant personally or mailed to their last known address.

Mailing the notice to the tenant’s last known address can be an issue when the tenant is not physically there. It can then be uncertain as to whether the notice has been adequately given to the tenant. If it is not adequately given, the landlord may not be entitled to dispose of the goods after 28 days. Landlords should seek legal advice before they proceed.

2.     Dispose of the abandoned goods

Alternatively, if the landlord makes reasonable attempts and is unable to locate or communicate with the tenant for the purpose of providing notice, the landlord can still dispose of the abandoned goods by waiting for a longer period to expire.

The period required to elapse (counted from when the goods became uncollected) is dependent on the monetary value of the goods:

  • 60 days for low value goods

These are goods valued at less than $200.00, or in case of a motor vehicle valued less than $1,000.00.

  • 90 days for medium value goods

These are goods valued between $200.00 to $5,000.00.

  • 180 days for high value goods

These are goods valued at more than $5,000.00, or in case of a motor vehicle valued at more than $1,000.00.

Once either of the above conditions is met, the landlord can either:

  • dispose of the goods (only if they are low value goods) or
  • sell them by private sale or public auction.

The landlord must reasonably ensure that the goods are sold for the best price. If the goods are of high value (especially if it is a motor vehicle), the landlord must check the Personal Property Securities Register in case there is a creditor with a registered interest.

The landlord must also keep a written record of the disposal of goods, including:

  • a description of the goods
  • the notice document
  • the date and manner of disposal
  • the name and address of the purchaser if by private sale (or the name and address of the auctioneer if by public auction) and
  • the price for which the goods were sold.

These written records must be kept for 6 years or the landlord could be fined.

3.     Apply to VCAT to dispose of the goods

A landlord can also apply for orders at VCAT to dispose of the goods.  

Your application must include:

  • the reasons for the application
  • the name of the person who left the goods with you
  • a description of the goods
  • an address where they may be collected and
  • the relevant charge, including an estimate of further charges that may be chargeable to the tenant.  

Additional information is required in applications where the uncollected goods include a motor vehicle.

Can I keep the proceeds of sale?

From the proceeds of sale, the landlord may retain the relevant charge(s) incurred but the landlord is not otherwise entitled to the proceeds for unpaid rent or other claims against the tenant. The remaining proceeds must be deposited with the State Revenue Office as unclaimed money.

Please note that different rules apply to residential landlords and tenants.

What to do now?

If you have any queries regarding disposal of abandoned goods or in relation to residential, retail or commercial leases generally, please feel free to contact our Accredited Property Law Specialist Andre Ong on (03) 8561 3317.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

For further information contact

Andre Ong

Andre is a Principal of Sharrock Pitman Legal.

He heads our Property Law Group and is an Accredited Specialist in Property Law (accredited by the Law Institute of Victoria).  He also deals with Commercial Law. For further information, contact Andre Ong on his direct line (03) 8561 3317.

More on

Property Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.