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News

COVID-19: The impacts of Coronavirus on family law and parenting

April 28th, 2020

Co-parenting can be difficult at the best of times.  The additional uncertainty and significant changes in response to the global pandemic will see parents face new challenges.

The message from the courts is that where possible parents should continue to comply with existing court orders.  It is not clear at this stage, what the courts will consider a reasonable excuse for not complying with a parenting order in the context of the pandemic.  Parents are being encouraged by the courts to use their common sense and to act reasonably as new challenges present as a result of the pandemic.  Communication will be crucial as parents navigate through the temporary restrictions in place, particularly in relation to travel and quarantine.

If orders cannot be complied with, or parents seek to change arrangements during the pandemic, parents should, in the first instance, try to reach an agreement in writing with the other parent about what is to occur, including consideration of makeup time if time is not proceeding in accordance with orders.  Parents are being reminded by the courts that they should always prioritise the best interests of the children, their health, safety and wellbeing.

If you are in a situation where you believe that you are unable to comply with court orders and the other parent does not agree, and the issue cannot be resolved between you, you should seek legal advice.

Parents should attempt to work through issues reasonably and sensibly to prevent any more distress during this time.  They should keep each other informed about any health issues or concerns as they arise.  If issues arise that cannot be resolved, they may be able to be negotiated through lawyers or through alternative dispute resolution services, such as mediation which continue to be offered remotely.

Travel restrictions

The latest direction from the Queensland Chief Health Officer permits persons to cross the border for the following purposes:

  • to continue existing arrangements (such as parenting plan arrangements) for children under 18 years to have contract with their parents and siblings who they do not live in the same household with (but contact with vulnerable groups, such as persons over 70 years, is not permitted);
  • to provide care or support to an immediate family member; and
  • to attend any court of Australia or to comply with court orders (including parenting orders).

The courts and the government are continually reviewing and updating travel restrictions, so it is always best to obtain advice on the current arrangements that apply to your situation.

Our lawyers are continuing to advise clients on all family law matters.  Please do not hesitate to contact us on 07 4036 9700 if you have any questions or concerns regarding your family law matter during this difficult time.

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Making the transition to retirement living – 4 questions you might have about manufactured home parks

April 23rd, 2020

Cairns is soon to introduce its newest (and first) land lease community, also known as a manufactured home park.  The Botanica Lifestyle Resort is the first of its kind in Cairns and a new option for those looking to make the transition to retirement living.

There are a number of options for those wanting to move into retirement living including moving into a retirement village (and the various iterations of retirement villages) or a manufactured home park.

What is a manufactured home (or a land lease community) and how is it different from other retirement living options?

One of the main differences between a manufactured home (or land lease community) and regular home ownership is that you do not own the land on which your house is placed, you rent it.

You do however own the home that you reside in, which differs from most retirement villages where you lease or licence the unit or villa that you live in.

Depending on how the home is constructed, one of the features of a manufactured home park is that you can physically move the home to another location if you wish.  That may not be practical however depending upon the characteristics of the house.

What is included?

There are a number of benefits to purchasing a home in a manufactured home park over traditional land ownership, including:

  1. the access to a community of people of a similar age and with similar interests; and
  2. various community facilities including sporting areas, parks, restaurants, pools and event spaces.

Because you actually own the home you will live in, you also have more freedom in how you keep and manage it, subject to the rules of the park.

A manufactured home is also a capital asset that you can sell in the future, and as you will own the home in the park you will be able to leave it as an asset in your will.

What rights do I have?

Manufactured home parks are governed by the Manufactured Homes (Residential Parks) Act 2003, and that act contains numerous protections for those wishing to adopt that style of living.

Among the protections is an indefinite lease period in most cases, meaning that not only can you reside at the property for as long as you want,  you have the flexibility to terminate the arrangement whenever you are ready to move on.

The legislation also requires that the operator of the park allow cooling off periods and provide extensive disclosure to you about the costs involved in living in the park, the facilities that will be provided, and your obligations when living in the park.

What happens when I am ready to move on?

When the wander bug strikes again and it is time to move on, a manufactured home can present more options than a traditional retirement village.

Depending on the construction of the home, you may choose to terminate the rental arrangement with the operator and move your home somewhere else.  You also have the option, and it may be a more  practical one, to sell the property.  Such a sale will need to involve the park operator though as they will need to consent to any new owner.

You are entitled to receive any capital gain on the sale of your property as you own it and unlike exit from a retirement village, there is no exit entitlement or lump sum payment that you need to pay to the operator when you move on.

If you wish to move on but cannot sell the property, and it is not practical to physically move the property to another location, questions may arise as to what may be done with the property.  You should carefully consider the terms of your site agreement with the operator as this will largely determine what your obligations on exit will be.

Entering into an agreement to reside in a home in a manufactured home park is a big decision and there are a number of different factors that you should consider before signing on the dotted line.  Seeking legal advice on the agreement is a must!

Our experienced commercial lawyers are able to assist with any enquiries about manufactured home parks or retirement villages so call us today on 07 4036 9700.

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Commercial Landlords and Tenants: impacts of pandemic lockdowns

April 9th, 2020

The Commonwealth Government yesterday announced the mandatory code of conduct for commercial leasing.

The code is intended to alleviate the impact of government implemented measures to combat the COVID-19 pandemic.

To be eligible for the code to apply, an individual, business or company must show:

  1. a 30% reduction in revenue compared to a similar time last year; and
  2. an annual turnover of less than $50 million.

Businesses eligible for the JobKeeper program are automatically eligible for the code of conduct.

The code encourages tenants and landlords to adhere to, and apply as soon as practicable, good faith leasing principles for the duration of the code, which will remain in place as long as the JobKeeper program remains in place.

Among those principles are:

  1. landlords must not terminate leases due to non-payment of rent during the period of the COVID‑19 pandemic and a reasonable subsequent recovery period;
  2. tenants must remain committed to the terms of their lease, and a failure to abide to the terms of the lease may forfeit any protection by the code;
  3. landlords must offer tenants a reduction in rent proportionate to the downturn in the tenant’s business, this is likely to be between 30% and 100% of the rent;
  4. at least half of the reduction must be a waiver of rent, with the remainder able to be a deferral, where the tenant pays it to the landlord over the remaining term of the lease (or a minimum of 24 months);
  5. landlords should also pass on where practicable the effects of any financial assistance received, including alleviation of loan repayments;
  6. landlords should where appropriate seek to waive recovery of other expenses and outgoings against tenants, and can choose to reduce services provided to the tenants;
  7. landlords must not draw on a tenant’s security for the non-payment of rent during the period of the code;
  8. the tenant should be provided with the option to extend the lease for the same period as it was non-trading; and
  9. landlords must freeze rent increases (except for those based on turnover rent) for the period of the pandemic.

If agreement cannot be reached between the landlord and the tenant as to the above arrangements (including as to the amount of any waiver), the matter must be referred to mediation.

The measures prescribed above, and others in the code, seek to ensure that businesses are able to survive and continue trading when the pandemic reaches its end.

The code has an effective date as of 3 April 2020, but will not apply in Queensland until such time as it is enacted by parliament.  There is no prescribed time for this, but it is expected to be as soon as possible.

The code will only cease to apply when the JobKeeper program no longer applies and the pandemic is deemed to be over.

While this announcement will bring welcome relief for tenants, its implications in the long run may be uncertain. If you have any questions or concerns regarding your rights and obligations under the Code, you should contact our experienced commercial and property law team as soon as possible.

 

Checklist for Commercial Tenants

  • Get your business records in order so that you can demonstrate the impact of the COVID-19 measures on your business;
  • Speak to your accountant about the financial impact, and what can be done to minimise it and allow you to recover;
  • If applicable, register for the Jobkeeper Program;
  • Consider what you are realistically going to be able to do financially over the next six months or so, and come up with a proposal regarding the lease. Make sure it is fair, and is able to be justified based on your business records.  It may be useful to involve your accountants and lawyers in this process;
  • Start negotiations with your landlord to try to find an acceptable solution for both of you to get through this difficult period. Bother parties need to be honest and negotiate in good faith.
  • Do not just stop paying rent or expect your landlord to stop charging rent and outgoings. Doing so will mean that you lose the protection the government is offering.
  • Ensure that any agreed outcome is recorded in writing, and that changes to the leases are reflected in formal, enforceable documentation. Your lawyers should be engaged to do this.

 

Checklist for Commercial Landlords

  • Be pro-active. Contact your tenants and see how they are impacted.  Starting early might make the situation more manageable rather than waiting until there are few options left.
  • Speak with your bank about what your options are if the tenants are unable to pay the full rent. Can the bank help with repayment holidays or converting to interest only, or other measures?
  • Consider your outgoings and other holding costs – are there savings or deferrals which may be available?
  • If your tenants are adversely impacted, ask them to show you some financial information to show what that impact is, and what sort or relief they may be looking for;
  • Engage in negotiations with the tenant. Remember that you will both have an obligation to negotiate honestly and in good faith, and that is it likely to be better to have a viable tenant at the end of pandemic period, than be looking for a new tenant in what is likely to still be a difficult market.
  • Ensure that any agreed outcome is recorded in writing, and that changes to the leases are reflected in formal, enforceable documentation.  Your lawyers should be engaged to do this.
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