Loan documents review under a Trust structure

What should be an unrelated party?

You are a separate legal person to the trustee, so there would be 2 separate advices needed by different lawyers. The trustee may need advice on the loan documents and the guarantor may need advice on the guarantee they are giving.

 

Can this be two lawyers in the same company?

 

The lawyer who will be going through the guarantee document should be unrelated party to the ones helping the borrower (trust), as per my understanding.

 

How is independent advice from a third party relevant? Given the borrower and guarantor are ultimately the same person signing, there is zero difference between the two.

 

That is up to those lawyers to decide. I wouldn't allow my company to do it (though we only have one lawyer!_)

 

Legally they are 2 separate parties.

 

Why wouldnt you allow your company to do it if you have two lawyers? some sort of conflict of interest?

I am trying to understand if i should pay my conveyancer company a bit more and get a lawyer in the same firm to go through this as well?

 

because the lawyers aren't independant if they are under the same company.

All you have to worry about is getting that certificate signed and leave the conflicts of interest for the lawyers to worry about.

 

@Peter_Tersteeg FYI this is why i think it should be different people as this is stated in my guarantee doco:

Should you choose to proceed, independent legal advice is compulsory.
An independent solicitor is one who is not acting for either the Lender, the Borrower (including a joint borrower), or a Guarantor and is not a member or employee of any firm acting for any or all of the persons mentioned. The solicitor who provides independent legal advice must also witness your signature on the Declaration and the Guarantee.

 

I had one the other day where the borrower and guarantor were the same person effectively.

As per the lender instructions - I had to sign that I must not give the guarantee documents to the borrower and only to the guarantor.

 

I had one where the borrower and the guarantor were not supposed to be in the same room together when I was giving legal advice on the guarantee. I made the guy stand in the doorway.

 

We won't do it either - independent legal advice means exactly that, 2 lawyers in the same firm are not independent.

If you don't need face to face on the certificate then my guys would do it for $500 plus GST.

 

Several part of the document required signatures of both the sides (me and the solicitor) at the same time and witnessed so I assume it needs to be face to face? Let me go through tomorrow and look at the exact wording? Then if we can turn it around quickly I will be very keen to take you up on your offer!

 

Haha how did you manage that one!

 

Hi, from reading the document it looks like the solicitor needs to be witnessing my signature on different steps :/ do you have any part of your practice in Melbourne? I work in city so someone there suits me too if anyone has a recommendation

 

Often the certificate of independent legal advice is different from the witness on the docs. A JP can witness as long as the solicitor gives the advice prior to them being signed by you. But I haven't seen the docs in your instance and wouldn't know. Also I have not done one of those for a few years as that's normally done by others on my team.

No office in Melbourne, offices in Brisbane, Gold Coast, Sunshine Coast and Chambers in Sydney.

 

Yes true, the document itself needed it to be in person. I also have a "Certificate of Financial Advice" (separate from the Certificate of Legal Advice) that needs to be filled. Is that a common form as my accountant pretty much flat out refused to do it :/

 

Lawyers can't sign off on that either. You will need to see a financial planner who may not be able to sign off on it without giving you a statement of advice and charging you a fortune.

Its really silly that they are asking for this!

Who is this evil lender?

 

HAHA loans.com.au i like them otherwise but this is the first time i am going through them using a trust structure (have a PPOR with them in my own name)

 

no wonder!

Cheap rate can be costly!