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What you need to know about the new Federal HomeBuilder grant

June 16th, 2020

Federal HomeBuilder grant 2020

The Australian Government has recently announced a new “HomeBuilder grant” to boost the Australian economy, particularly the construction industry, in light of the Coronavirus pandemic.

The new HomeBuilder grant provides eligible homeowners and first home buyers with a grant of $25,000.00 to build a new home or significantly renovate an existing home.

HomeBuilder requirements

The following eligibility requirements apply:

  1. you must be an Australian citizen (not resident);
  2. you must have an annual income of $125,000.00 or less or, for couples, your combined income in the last financial year must be $200,000.00 or less;
  3. the building or renovation contract must be entered into and signed between 4 June 2020 and 31 December 2020 and work must commence within three months from the contract date (current projects do not qualify);
  4. for new buildings, the value of the home (including land) must not exceed $750,000.00; and
  5. for renovations:
    • the renovation must be valued between $150,000.00 to $750,00.00;
    • the pre-renovation value of the home must not exceed $1.5 million dollars excluding fixtures such as sheds and granny flats; and
    • some renovations are not covered such as adding a pool or detached garage.

HomeBuilder eligibility

Eligible homeowners will be able to apply for the HomeBuilder grant when their relevant State or Territory Government implements the grant.

The HomeBuilder grant is a temporary scheme which applies alongside existing first-home and home‑owner grants.  You can register your interest to receive updates when more information is available on the Australian Government Treasury website.

The existing Queensland First Home Owners’ Grant provides $15,000.00 towards purchasing or building a new house or apartment where the value of the home (including the land) is less than $750,000.00.  These grants have their own eligibility criteria.

First homeowners

First homeowners may also qualify for stamp duty concessions, and the federal government’s first-home loan deposit scheme and first-home super saver scheme.

If you are considering purchasing, building or renovating property and have any questions concerning the grants that may be available to you, please do not hesitate to contact our team of experienced property lawyers on (07) 4036 9700 or enquiries@millerharris.com.au.

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Building covenants and solar panels – are there restrictions on maximising energy efficiency?

January 17th, 2020

Building covenants are common features of contracts for the purchase of properties in new residential estates.  Property developers use them to ensure that houses, fences and other improvements to be constructed by the buyer conform with the landscaping and design of the estate.  The intention is that by doing so, the developer maintains control of the product which it is selling, and buyers can buy with confidence that the other houses in the neighbourhood will be of a similar standard.

The content of building covenants varies dramatically from estate to estate.  Some are very basic and some are highly detailed and prescriptive.  Many of them control the design of houses, materials used, colour schemes and the location of solar panels and solar hot water systems.  Generally building covenants are legally binding, however, the Building Act 1975 (the “Act”) contains provisions which were introduced to encourage developers and homeowners to implement sustainable buildings and designs.  Covenants which restrict the use of energy efficient design features, such as solar hot water systems or light coloured roofs, in favour of unsustainable aesthetic designs can be unenforceable under the Act.

The  Court of Appeal recently considered the enforceability of a building covenant relating to solar panels in the case of Bettson Properties Ptd Ltd & Anor v Tyler.

The facts

In Bettson a building covenant required the buyer to obtain the seller’s consent before installing solar panels.  The purpose of this condition was to prevent the installation of visually unpleasing solar panels.

Without the seller’s prior consent, the buyer installed the solar panels on a highly visible portion of the roof.  The seller’s request to relocate the solar panels to a more discrete location was rejected by the buyer, as the alternative location would render the solar panels 20 per cent less efficient.

The seller consequently sought to enforce the building covenant in the court.

Section 246S(2) of the Act provides that where a building covenant requires a person to obtain consent before installing solar panels on a building, consent cannot be withheld if doing so would prevent the person installing the solar panels.

The question in this case was whether the seller’s restriction on the location of the solar panels prevented the buyer from installing the solar panels within the meaning of section 246S.  This question relied heavily upon the meaning of “prevent”.

At first, the buyer succeeded, with the lower court deciding that “prevent” meant ‘hinder’ or ‘impedes’ and consequently the seller’s requirement to relocate the solar panels to a less energy efficient location prevented the buyer from installing the panels.

However the Court of Appeal did not agree with the lower court and held that ‘prevent’ has the traditional meaning of ‘to stop from happening’.  Section 246S was held to only apply where withholding consent makes it ‘impossible’ or ‘impractical’ to install the solar panels, which was not the case here.

Consequently, the buyer was ordered to relocate the solar panels as required by the seller.

Implications

The decision of the Court of Appeal means that developers can impose building covenants which prevent a buyer from installing solar panels in the most efficient location on the roof.  Arguably, this is not consistent with the policy behind the housing sustainability measures in the Act, which generally prefer energy efficiency over aesthetics.  It may be that the government will change the Act in this regard.

If you are considering buying a property in a new residential estate, it is wise to ask the seller for a copy of any building covenants before you make a decision to commit to the purchase.  You should consult with your building designer or builder about the building covenant requirements to ensure that they can be met in a way which you are happy with.  Failure to consider the building covenants before you sign a contact can mean that you will be unable to build the house the you want, with the features you want after you have bought the land.

Please feel free to contact our property law department on 07 4036 9700 if you have any queries in relation to building covenants.

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Certificates of title – soon a thing of the past

April 16th, 2019

An exciting development in property law has been announced.  After much anticipation, the Queensland Government has now passed legislation which will mean that from 1 October 2019, original paper certificates of title (also known as title deeds) for property in Queensland will no longer have any legal effect.

The titles of property in Queensland have been maintained electronically for many years and the dispensation of paper certificates of title marks one of the final changes to fully electronic titling.  While older certificates of title can be retained for historical value, many a grey hair is likely to be avoided from the stress of trying to locate lost certificates after many years or explaining the inadvertent destruction of certificates.  Currently the process for dispensing with a paper certificate of title is a fairly arduous process involving extensive enquiries, advertising and declarations.

Prior to 1994, every property in Queensland had a paper certificate of title issued for it.  This certificate was required in order to deal with property, by sale, transfer, mortgage or otherwise.  However, from 1994 the Queensland Titles Registry converted to an electronic titles register and has not automatically issued paper titles for property since then.  A paper certificate could only be obtained on request and for a fee.

Where a paper certificate of title is issued, it must be produced when any dealings with the land are to be registered with the Queensland Titles Registry.  Without it, a dealing affecting land (where a paper certificate is issued) cannot register.  It is an important document, that by itself, evidences ownership of property.  As a result, lost or stolen certificates can (and historically have been) a huge concern for owners of property, particularly when trying to complete a sale of their property within the time frames of a standard conveyance.

More recently, the Titles Registry has been working to phase out the paper certificate of title.  When a certificate of title has been issued for a property and a dealing lodged for registration (such as a transfer of ownership which required the deposit of the original paper title), the original certificate would be destroyed and not reissued.

As a result many properties no longer have paper certificates issued today.

Please feel free to contact us on 07 4036 9700 if you have questions about how these changes will affect your property if you have a paper title for your property issued.  Miller Harris Lawyers would be happy to assist you with all your property law questions.

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A home buyer’s nightmare – property inspections failing to find fault

February 15th, 2019

A buyer is awarded only $500.00 for a building inspection report that missed extensive termite damage.

Building and pest inspection conditions are incredibly common in property contracts these days.  When purchasing a house or unit, it is always recommended that you engage a qualified inspector to look over the property for problems.  Building and pest inspection conditions generally allow a buyer to terminate the contract if significant problems are discovered with the buildings or improvements.

But what happens when major issues are not picked up in the building and pest inspection?

A recent decision of the Victorian Civil and Administrative Tribunal (“VCAT”) highlights the importance of reading the ‘fine print’ in building and pest inspection reports if you are purchasing a property.

Garrett v Elim House Pty Ltd [2018] VCAT 1862

The Garretts purchased a 100 year old timber house in 2014, for $172,000.00.  As part of the conveyancing process they engaged Elim House Pty Ltd (“Elim”) to conduct a pre-purchase inspection of the property.

After receiving the report, they decided to go ahead with the purchase.  Shortly after the sale was finalised, the Garretts discovered that there were significant structural issues with the house, including extensive termite damage.  Following the discovery of these issues, it was suggested by their builder that the house was beyond repair and should just be demolished and they should start fresh with the building.

The Garretts commenced proceedings in VCAT against Elim, claiming (among other things) that:

  1. the representations on Elim’s website, which they relied on when selecting Elim to inspect the property, were misleading and deceptive; and
  2. the inspector failed to inspect the property with due care and skill as required by the Australian Consumer Law.

Elim’s website marketed their services as thorough and technologically advanced as well as gave the impression that hidden problems would be found.  However, the report that was produced by Elim limited the scope of the inspection to a visual inspection only.  A visual inspection is standard for pre-purchase building inspections completed as part of the conveyancing process.

The report also specifically excluded some areas of the property from inspection because they could not be accessed.  This included the sub-floor where the majority of the damage was later found.  The property was tenanted at the time of the inspection and furniture obstructed some of the view of the property, particularly areas of the internal perimeter wall.  Termite damage was also later found to have been present in these areas.

Elim had noted in its report that it was ‘reasonable’ to discern that there was termite activity in some parts of the property that were not able to be inspected.  Elim also had advised the Garretts of the problems with the floors of the property, advising them that parts of the floor were ‘soft underfoot’ and would need attention in any renovation work.

Decision

VCAT found that:

  1. some of the representations made on Elim’s website were misleading, including the representation that Elim’s inspections were especially thorough and utilised high-level technology; and
  2. Elim conducted the inspection of the property with due care and skill, as the reason the termites were not identified was because of the stated restrictions to the inspection noted in the report and the structural issues were appropriately identified.

The tribunal ordered that the Garretts be refunded the $500.00 they paid Elim for the property inspection because of the misleading representations on Elim’s website.

However, the Garretts were not successful in their claim of $344,528.00 to cover the cost to them of demolishing the house and building a new home on the land.

What does this mean for buyers?

This decision highlights the importance of reviewing a pre-purchase inspection report thoroughly and, properly considering the limitations contained in the report.  It is very common for areas of a property to be excluded from building and pest inspection reports due to inaccessibility.  It is also important for purchasers to realise that a visual inspection (which is the type of inspection that is done as part of the building and pest inspection conditions in Queensland conveyancing contracts) may not identify all issues with the property.

Some problems, such as termite damage can only be identified through an invasive inspection.  This type of inspection is unlikely to be allowed by a seller as it may, by its nature, cause damage to the property.

Prospective buyers should carefully consider the contents of a pre-purchase inspection report and the weight of any recommendations made by the inspector, along with factors such as the age and relative condition of the house.  A great way to get more information is to attend the inspection with the building inspector or speak to them following the inspection to ask them questions.

If there are items in the report that you do not understand the nature of or the consequences attaching to, seek advice.  As learnt from this decision, building and pest inspection reports are not infallible and the limitations contained in these reports reduce the scope and liability of an inspector.

An experienced lawyer or conveyancer can help you to limit the risks involved in purchasing a property and deal with issues that arise from a pre-purchase inspection.

Miller Harris Lawyers would be happy to assist you with the purchase of your next property, please feel free to contact our conveyancing team on 07 0436 9700.

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It’s not just the purchase price – costs to consider when buying a house

January 10th, 2019

One of the most important questions for buyers to ask when considering purchasing a house is – can I afford it?

When purchasing a property and planning your budget, it is more than just the purchase price that you should anticipate.

You should keep in mind the following costs:

  1. Transfer duty (stamp duty)

If you are buying a property for the first time, or buying a property to live in, there are concessions available for transfer duty.  However, in many instances duty will be payable on the transaction and it is not cheap!

You can calculate a cost estimate of how much duty you will need to pay using the online calculator from the Office of State Revenue.  This will tell you how much you should be setting aside.

The calculator can be accessed here.

  1. Bank fees and charges

It is common for banks to approve a loan and then take their fees from the amount of the loan.  This means the amount they will actually provide for you to purchase the property, may be less than the amount you have been approved for.

Loan fees vary from bank to bank and can depend a lot on what type of loan you are taking out.  You should ask up front for an estimate of the bank fees associated with the loan to make sure you have enough to cover all the costs at settlement.

You may also be required to pay for a valuation for the property.  In some instances your bank may require a valuation to decide whether they will lend you money for the purchase and how much they are willing to provide.

  1. Land registry fees

The Queensland Government charges a fee (which changes based on purchase price) to register the change of ownership of a property and to register a mortgage.  This fee is paid by the buyer so don’t forget to factor this in to your budget as well.

You can calculate the lodgement fees here.

  1. Adjustments

Usually in a conveyancing matter, the outgoings for the property, such as council rates, body corporate levies, rent and water usage, are apportioned at settlement.  For outgoings already paid, this means the buyer makes a further payment to the seller (by way of an adjustment at settlement) to cover their share of costs.

Depending on the time of year you are purchasing and the particular outgoings, this could add a few hundred dollars to the overall amount required for settlement.

  1. Insurance

Under most contracts, the risk in the property passes to the buyer from the day after the contract is entered into, not when settlement actually happens.  This means that buyers need to take out insurance as soon as the contract is signed, not when it’s time to move in.

This is another upfront cost that is important to remember.

  1. Legal fees

We always recommend that you engage a lawyer to assist you with the conveyancing process.  While this is an additional cost, buying a house is often the biggest financial investment you will make in your life, so it pays to engage a professional to assist you through the process, so it is done right.

At Miller Harris Lawyers we have an experienced property law team that can assist you with the conveyancing process.  Please feel free to contact us for further information.

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Badgering, Bullying and Bodies Corporate: The Fair Work Anti-Bullying Laws extend further than you might think

September 27th, 2018

Following a recent decision of the Fair Work Commission on bullying in the workplace, you may be surprised to learn just how far the anti-bullying laws extend.  The definition of “worker” under the Fair Work Act is given a much wider meaning than just the traditional employee/employer relationship.  Bodies corporate and strata managers in particular should be aware of this decision.

Application by Ms A [2018] FWC 4147

The application involved a body corporate committee of a residential strata complex in Brisbane and the company engaged by the body corporate under a management agreement. The company provided maintenance, cleaning and other services to the complex and required that the manager live on site.  It was one of the directors of the company, Ms A, who brought the application alleging she was bullied at work by Mr C, the Chairman of the body corporate committee.

The conduct complained of included constant emails from Mr C, up to seven times per day at all hours of the day, as late as 11.00 pm at night.  The emails were about a number of different issues to do with Ms A’s performance of her duties under the management contract.  Some of the items complained of by Mr C included:

  • the prompt performance of the clearing of leaves and other vegetation on a daily basis;
  • attending to garden maintenance including the trimming of trees;
  • pool maintenance;
  • conducting of regular inspections;
  • keeping the common area toilets clean;
  • being contactable and actually living on site; and
  • the enforcement and policing of by-laws.

Mr C argued that his conduct was not bullying, but reasonable management action carried out in a reasonable manner.

The Fair Work Commission found that the issues raised by Mr C were in fact reasonable issues to raise about Ms A’s performance of the services.  However, a “war engaged in by email” was not an appropriate way to raise them.  Particularly, the use of sarcastic and derogatory language in Mr C’s emails to Ms A combined with the excessive amount of emails (sometimes well outside business hours) and the publication of those exchanges to other members of the committee was unreasonable.

The Commissioner pointed out that, as a member of the body corporate committee, Mr C had access to the resources and information to deal with any disputes in the proper manner.  The strata management company engaged by the body corporate could have advised Mr C on the formal dispute resolution process for body corporate matters.

Mr C was ordered to stop bullying Ms A and given direction as to the subject matter, timing and content of future email correspondence.  The orders also required that telephone communication be used in the first instance to assist with the repair of the working relationship between Ms A and Mr C.

The parties in the proceeding were not indentified in order to avoid any impact on other residents of the complex and to facilitate the resumption of a safe working relationship.

What are the Anti-Bullying Laws

At the beginning of 2014, the Fair Work Act was amended to include anti-bullying provisions that allow the Fair Work Commission to make decisions and orders about bullying in the workplace.

The changes allow a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission to make an order to stop the bullying conduct.

A worker will be bullied at work if, while at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.  In this application the Fair Work Commission was satisfied that bullying had occurred.

Who is a worker

In the Fair Work Act anti-bullying provisions, the term “worker” is given a particularly broad meaning.  It includes an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, apprentice, trainee or volunteer.

As a result the body corporate (and by extension the body corporate committee) have duties to provide a safe working environment to third party contractors.

This is the first time the Fair Work Commission has applied the anti-bullying provisions to a situation outside of the traditional employment relationship.  The decision demonstrates that the anti-bullying laws will extend to all contractors who are performing services or work.

There is also no requirement that a contractor be an individual person.  In this case the ‘contractor’ was a company and it was the director of the company, Ms A, who brought the application under the anti‑bullying rules.

Key points to take away from this decision

The key points to take away from this decision for bodies corporate and strata managers are:

  • The Fair Work Commission found that it had jurisdiction where the resident manager was a company (not just an individual person providing the services). This means that the scope of the anti-bullying laws apply to third party contractors as individuals but also to the employees or directors of third party contractor companies.  Due to the constitutional limits of Commonwealth legislation, the commission may not have jurisdiction if no corporations are involved.
  • It also found that the manager and its employees were “workers” who were owed duties by the body corporate. The anti-bullying legislation applies to workers as defined by the Fair Work Act and this goes well beyond a standard employment relationship.
  • While the chairperson of the body corporate committee was found to be justified in raising many of the issues which he had with the management, it was the manner in which they were raised which was inappropriate.
  • Civility, courtesy and reasonableness in interactions with contractors will not only improve working relationships, but also protect the body corporate from potential liability.

If you would like any further information about this decision, the roles and responsibilities of bodies corporate generally or advice on the resolution of disputes in a strata complex, please contact Lauren Doktor in our property law team on 07 4036 9700.

 

 

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