Articles

NSW State Budget 2016

For changes affecting foreign purchasers of residential property in NSW please go to the following link

http://www.osr.nsw.gov.au/info/legislation/budget/201606

 

For more information please contact Jenny Graves

jgraves@pittstreetconveyancing.com.au

Protections for Off the Plan Purchasers

1. Off the Plan Contracts

An Off the Plan contract is a contract where the Vendor is usually a property developer and sells to the Purchaser a property which has not yet been built. In some cases the property will not be completed for 2 or 3 years (or more) from the date that the contract was entered into. At the time of entering into the contract the purchaser pays a 10% deposit. Off the Plan contracts are usually for the sale of strata or community title apartments or townhouses.

One of the attractions of Off the Plan properties is that by the time that the property is completed the market value of the property has increased and the Purchaser now has a property worth sometimes significantly more that the price for which he contracted to buy the property.

2. Sunset clauses

All Off the Plan contracts will have a “Sunset Clause”. This enables the contract to be rescinded usually by either party if the contract is not completed by a certain time. If there have been delays in construction, having the strata plan registered or even finance difficulties on the part of the Vendor, this will enable the Purchaser to rescind the contract and have his deposit refunded to him. The Sunset Clause is also for the benefit of the Vendor, and although the Vendor usually has to use reasonable or best endeavours to have the Strata Plan registered by the Sunset Date, some Vendors have been able to legitimately delay completion past the Sunset Date so that they can rescind the contract.

The main reason for the Vendor wanting to rescind the contract  is that the property has increased in value, often significantly and the Vendor can then resell the property for a higher price.

3. Changes to the Conveyancing Act 1919

On 17th November 2015 a new part 4 Division 10 was added to the Conveyancing Act 1919, aimed at preventing developers from unreasonably rescinding Off the Plan contracts for the sale of residential property. This applies to any rescission made after 2 November 2015 regardless of when the contract was entered into.

(a) Residential property

• A parcel of land less than 2.5 ha in area on which no more than 2 dwellings exist or are in the process of construction;
• Vacant land on which construction of a single place off residence is not prohibited by law;
• A lot or lots under the strata schemes development legislation intended to be used as a single place of residence.

(b) Vendor’s right to rescind

• A Vendor must now give each purchaser notice in writing at least 28 days prior to rescission under a Sunset Clause.
• The notice must say why the Vendor proposes to rescind and give the reasons for the delay.
• The Vendor can only rescind if:

  • the Purchasers give written consent to the Vendor’s proposed rescission;
  • the Vendor obtains an order from the Supreme Court permitting the rescission; or
  • .the reason for the rescission comes within a category prescribed by the Regulations (No Regulations have yet been made)

(c) What the Supreme Court will take into effect

When deciding whether to approve the Vendor’s rescission  on the basis that it is just and equitable, the Supreme Court will take into account:

  • the terms of the off the plan contract,
  • whether the vendor has acted unreasonably or in bad faith
  •  the reason for the delay in creating the subject lot,
  •  the likely date on which the subject lot will be created,
  •  whether the subject lot has increased in value,
  •  the effect of the rescission on each purchaser
  •  any other matter that the Court considers to be relevant, any other matter prescribed by the regulations

The Vendor is liable to pay the costs of a Purchaser in relation to the proceedings for an order under this section unless the vendor satisfies the Court that the purchaser unreasonably withheld consent to the rescission of the off the plan contract under the sunset clause.

The Purchaser may still rescind a contract pursuant to the terms of the Sunset Clause in a contract.

For further information regarding Off the Plan purchases please contact Jenny Graves jgraves@pittstreetconveyancing.com.au

Selling or Buying a Property with a swimming pool or spa

 

Background

The commencement of the changes to the Swimming Pools Act 1992 (NSW) (“the Act’”) which have been evolving since 2012 finally commenced on 29th April 2016. These changes have a significant impact on Vendors and Purchasers of properties with swimming pools and spa pools.

Are you selling a property with a pool?

If you are selling a property with a pool or a spa, then you must attach the following to the Contract;

(a)    a valid certificate of compliance (under section 22 of the Act) or a relevant occupation certificate within the meaning of the Act together with a certificate of registration under Part 3A of the Act.

(b)   If you cannot get a valid certificate of compliance a certificate of non-compliance issued under section 18BA of the Swimming Pools Regulation 2008.

A certificate of compliance remains valid for 3 years and a certificate of non-compliance is valid for one year from the date that the relevant certificate issues, unless the certificate of non-compliance states that the pool poses a significant risk to public safety.

A relevant occupation certificate is one issued by Council or a certifier under the Environmental Planning & Assessment Act 1979 that is not less than three (3) years old and authorises the use of the pool.

The documents referred to above i.e.  certificate of compliance, occupation certificate and certificate of registration and certificate of non-compliance are prescribed documents for the purposes of section 52A(2)(a) Conveyancing Act 1919.

If a certificate of non-compliance is attached to the Contract, then the obligation of doing the work to get the certificate of compliance passes to the purchaser who has 90 days to do the work. This is not the caser where because of the non-compliance the pool poses a risk to public safety in which case.

 What happens if the relevant certificate is not attached to the contract?

If a prescribed document is not attached to the contract, then the Purchaser may choose to rescind the contract within 14 days of the date of the contract. In this case the deposit will be refunded to the Purchaser.

Are you purchasing a property with a pool?

If there is a certificate of compliance or occupation certificate attached to the contract then there should be nothing to worry about.

If there is a certificate of non-compliance attached to the contract then you should ask the Vendor for a copy of the section 22E or regulation 18B notice which goes with the certificate so that you can ascertain what needs to be done to the pool and the property before the certificate can issue. This will also enable you to get the work costed so that this can be taken into account when you are deciding on the price that you want to pay for the property.

You will have 90 days from the date of completion of the purchase to rectify the non-compliance issues. If the certificate of non-compliance states that the pool poses a significant risk to public safety then the Council will issue a notice specifying a time for the work to be done.

What if the pool poses a significant risk to public safety?

If the certificate of non-compliance states that the pool poses a significant risk to public safety then the private certifier must immediately notify the relevant local authority who can then issue a notice under section 23 or 23A of the Act. If Council issues such a notice then after completion the Purchaser would also be required to comply with the notice if it was issued after the date of the Contract. If the notice was issued before the date of the Contract then the standard contact provides that the Vendor would need to do the rectification work unless the contract was amended to provide otherwise.

What if I am leasing my property that has a pool?

A valid certificate of compliance or occupation certificate and certificate of registration must be given  to the tenant before the commencement of the lease and will form part of the lease.

Exemptions

The new provisions so not apply to:

  • contracts for the sale of a property in a Strata Scheme that has more than 2 lots in the scheme.
  • contracts for the sale of a property in a Community Title Scheme that has more than 2 lots in the scheme.
  • Off the Plan contracts.

Penalties

The owner of the pool may be liable for a penalty of up to $5,500 for non-compliance with the pool safety requirements. On-the-spot fines of $550 can also apply.

If you require any further information please contact Jenny Graves jgraves@pittstreetconveyancing.com.au

 

 

 

 

 

 

 

 

 

 

 

 

Loose-fill asbestos insulation

If your home was built before the 1980′s it could be affected by hazardous Loose-Fill Asbestos insulation, which was used as insulation in the 1960′s and 1970′s.
The NSW Government is proposing new laws which will require you when selling your home to confirm whether it contains or is free from Loose-Fill Asbestos. Non compliance with these laws could result in significant financial loss. These laws are expected to include:

  • The establishment of a public Loose-Fill Asbestos Insulation Register
  • Mandatory hazard labelling of affected properties
  • Identification of affected properties on section 149(2) planning certificates
  • The development of a generic warning statement for inclusion on section 149(5) planning certificates for pre-1980s homes across 28 local government areas
  • The consideration of a warning statement as a prescribed document on a Contract of Sale and for the vendor to warrant that a property is free of loose-fill asbestos.
  • Amendments to residential tenancy laws to protect current and future tenants living in premises affected by loose-fill asbestos insulation and ensure it is disclosed by real estate agents

NSW Fair Trading is providing free sample testing to owners of pre-1980s residential premises in 28 local government areas provided that you register on line by 1st August 2016. There is also a financial assistance package in the case where Loose-Fill Asbestos is found.

If your property is not in one of the 28 local government areas then you can apply to have the testing done your self through a licensed asbestos assessor. You will have to pay for this yourself, however if the test is positive, the cost of the inspection will be reimbursed and the programme will be extended to include your local government area.

As part of the Government’s assistance package, if the test comes back positive you can have your property valued by 2 independent valuers as if it was not affected by Loose-Fill Asbestos.

After the valuations have been received then you can either:

(a) sell you home and land to the Government for market value or
(b) sell your home only, have the Government demolish it and remediate the land so that you can then rebuild.

To take advantage of this you must register by 1st August 2016 . If you do nothing and your home does contain loose-fill asbestos you risk being unable to sell or rent your home in the future.

For more information please contact Jennifer Graves at  jgraves@pittstreetconveyancing.com.au
or visit

http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Loose_fill_asbestos_insulation.page

 

Are you thinking about a Retirement Village?

It is a big thing when an older person or a couple decides to sell their home of sometimes 50 years or more and move into a retirement village or aged care. Apart from the process of selling their home, the documentation for the retirement village can be quite complicated – some are freehold, some are  leasehold and there are different fees payable both while the person is living in the village and on disposal of the unit in the village. There are often rules which people may not consider e.g whether they can have pets,  or whether the village is non- smoking etc. The documentation for Aged Care facilities can be even more complicated.

The benefit in using Pitt Street Conveyancing is that our solicitors have had a lot of experience in this area and can guide you through the whole process as simply as possible while still ascertaining whether the village can accommodate what is important for them. If necessary one of our solicitors can visit you in your own home (depending on where you are located).

http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Retirement_villages.page

 

For further information please contact Jenny Graves on jgraves@pittstreetconveyancing.com.au

 

Strata Levies

If you are purchasing a strata title property for the first time it is important to understand the different types of levies that may be raised by the Owners Corporation. It is also important before purchasing to obtain a Strata Inspection Report which is an inspsection of the books of the Owners Corporation . This report will reveal amongst other things the financial state of the Strata Scheme, the current levies and any work which may be coming up in the Strata Scheme and which may need to be funded by a special levy.

There are 3 types of  strata levies;

1. Administrative Fund Levies

These cover the day to day running expenses of the Strata Scheme  such as  insurance premiums, cleaning, gardening, utility bills, accountants fees for audits and tax returns, bank charges,  strata management fees and small day to day repairs. These expenses are the general running expenses of the Strata Scheme.

2. Sinking Fund 

The sinking fund levies are to build up a fund for long term future capital expenses. It may be that the older a building is or if the building has a lift, the sinking fund levies may be greater than in another building.  The amount to be budgeted for in the sinking fund  must cover renovations, refurbishment , big repairs, purchasing or replacing equipment owned by the Owners Corporation and all capital expenses. Common expenses are the replacement of carpet in common areas, painting common areas, replacing windows, repair or replacement of the roof, structural repairs such as rectification of concrete cancer and repairs and replacement of elevators. In buildings that have swimming pools, gymnasiums and other recreational areas the sinking fund should be able to cover expenses related to these facilities including repair and replacement where necessary.

Form July 209  all strata schemes must have a 10 year Sinking Fund Plan in place which has to be reviewed at least every 5 years.  It is important that the sinking fund has a balance which correlates to the expenses which have been identified on the sinking fund plan.

3. Special Levies

A special levy is raised if there is not enough money to meet the every day expenses of the Strata Scheme from the administrative fund or capital expenses from the sinking fund.  I recently had a client looking at the purchase of a unit . The strata inspection report revealed that the owners corporation proposed  to replace the roof of the building and to raise a special levy for this.On a unit entitlement basis, the cost of the work to my client had he proceeded would have been around $15,000.00. This is why it is important to get a strata inspection report and even contact the strata managing agent to ascertain whether there are any big repairs coming up and whether there is sufficient funds to cover them. Sometimes special levies are also raised for legal costs where an Owners Corporation is involved in a dispute about building defects with the developer or builder of a new building.

Who is responsible for a Special levy – Purchaser or Vendor?

  • If the levy is struck before  the date of the contract,and has not be disclosed in the contract the special levy has to be paid in full by the Vendor even if it is payable by instalments. The exception to this is that if it relates to work not started by the contract date.
  • If the levy is struck before the date of the contract and are disclosed in the contract the Purchaser is liable for them.
  • If the levy is struck after  the contract date the Purchaser becomes liable for them in total.

Comments 

  • If you  are selling a strata title property and a special levy has been raised or may be raised before exchange of contracts make sure that your solicitor or conveyancer knows about this so that it can be disclosed in the contract. If it is not disclosed you may be liable for payment of the levy in full.
  • If you are buying a strata title property make sure that you get a Strata Inspection Report to ascertain whether there is a programme of regular maintenance, a 10 year Sinking Fund Plan in place and adequate funds in the administrative and sinking funds. If you have any concerns arising from the report contact the strata manager or even members of the Executive Committee of the Owners Corporation to seek further information or clarification.

 

For further information on the 10 year Sinking Fund Plans please see  http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Strata_schemes/The_owners_corporation/Sinking_funds.page

If you require any information regarding strata levies please contact Jenny Graves  jgraves@pittstreetconveyancing.com.au

 

Liability limited by a scheme approved under Professional Standards Legislation

Copyright © Pitt St. Conveyancing 2012 Disclaimer / Privacy / Terms