New legislation that comes into force shortly will ensure that both landlords and vendors looking to sell properties with a swimming pool have undertaken all works necessary to make the pool compliant with safety regulations.
From 29 April 2015, all properties with a swimming pool or spa pool that are sold or rented must have a valid swimming pool certificate of compliance.
The laws apply to pools associated with private dwellings (houses, townhouses & strata and community schemes), moveable dwellings, motels and backpacker, B&B and farmstay accommodation.
The definition of “swimming pool and spa pool” includes in-ground, above-ground, indoor and portable pools that are capable of being filled with 300mm of water. Bathroom spas that are used as baths and emptied after use are not included.
The legislation makes it a requirement that a Vendor attach a swimming pool certificate of compliance to the contract for sale that certifies the pool and pool barrier meet safety requirements. The certificates are issued by Council or a private certifier and are valid for 3 years.
This new requirement makes the swimming pool certificate of compliance a prescribed statutory document for sale of real estate, requiring the Vendor to order and pay for the certificate (& any necessary works to upgrade the pool, such as fencing repairs or installation of resuscitation signage), rather than the Purchaser arranging an inspection of the pool at its cost as part of pre-purchase due diligence.
Failure to attach the swimming pool certificate of compliance to the sale contract will entitle the Purchaser to withdraw from the purchase without penalty, having the deposit refunded to them.
Real estate agents also risk a fine of up to $11,000 for marketing a property with a pool for sale without holding a valid swimming pool certificate of compliance.
Landlords must provide tenants with a valid certificate of compliance at the time of entering into a residential tenancy agreement. Failure to do so can result in a fine of up to $2,200.
Vendors selling or landlords renting units in a strata scheme will need to approach the owners corporation for a copy of the swimming pool certificate of compliance – there is no requirement for each individual property owner to obtain their own compliance certificate when the pool is located on common property.
To ensure your sale or lease complies with the new swimming pool legislation, contact the experienced Property Team at Everingham Solomons where Helping You is Our Business.
People change jobs for a variety of reasons, from not getting on with the boss to career advancement. Usually notice is given by the employee and they will work with their employer to train a replacement. But how should an employer react when an employee abandons their position?
Abandonment of employment arises where an employee:
is absent from work
without a reasonable excuse
for an unreasonable period of time
without having advised their employer why
The employee is, by their actions (or lack thereof), demonstrating an intention to no longer be bound by the terms of their contract of employment.
Abandonment of employment is a repudiation of the employment contract, however the contract isn’t terminated until the abandonment is accepted by the employer.
If you find your employee has gone “absent without leave”, employers should:
attempt to contact the employee (by phone, email or through work colleagues)
if contact cannot be made verbally, a letter should be sent to the employee’s home address by registered mail requesting the employee contact the employer as soon as possible
if the employee does not attempt to contact your office, or is unable to provide a satisfactory “excuse”, you must assume that the employee has abandoned their employment. The abandonment will be taken from the date the employee last attended work.
It is important for employers to note that:
an absence for a day or two cannot be considered abandonment (most Modern Awards provide that an absence of more than 3 days without consent is required)
if an employee’s leave application is unreasonably withheld, and the employee proceeds to take leave, abandonment does not apply
If you are an employer and you require assistance in determining whether you can terminate an employee for abandonment of their role, contact the employment Law team at Everingham Solomons where Helping You is Our Business.
The rhetoric regarding the dangers of the “age of entitlement” recently espoused by politicians in relation to the Federal Budget has rung true in relation to a Family Provision Act case made in relation to a family farm.
The court proceedings involved the Will of Mr W, who had left three farming properties in western NSW to his daughter. The daughter had been a partner in the farming business with her father
One of the daughter’s sons, that is a grandson of Mr W, commenced a Family Provision Act claim challenging his grandfather’s Will and seeking an immediate inheritance from his grandfather.
The grandson argued that he was entitled to receive one of the farms now and should not have to wait for his mother to hand over the reins when she retired or passed away.
The court considered whether the grandson had a right to inherit from his grandfather’s estate.
As a general rule, grandparents have no responsibility to provide for a grandchild – unlike a parent who should make adequate provision for the proper maintenance, education or advancement in life of a child. There are obvious exceptions to this rule, such as the grandparents who raise a grandchild on the death of the child’s parents.
In this case, the court also investigated the practicality of the grandson’s request – that is, whether the family farms could be divided between the grandson and his mother, and still operate as an economically viable enterprise. A court appointed expert deemed that division of the various landholdings on which the farming business was conducted would not be financially feasible.
Accordingly, the court upheld the grandparent principle and ruled that Mr W’s Will would stand – the daughter would inherit the farms to the exclusion of her son.
Needless to say, the court case created bad blood between the mother and the grandson, and it seems the mother had the last laugh – at the conclusion of the case she informed her son that he would be disinherited and had no prospect of ever running the family farm.
To ensure your Will does not create a family feud, contact the experienced Estates Team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
It is a well-known principle in New South Wales conveyancing law that there is no binding agreement for the sale & purchase of real estate until formal written contracts are exchanged.
A recent case concerning sale of farmland between neighbours sought to challenge this principle.
The case involved the sale of approximately 200 acres of grazing land by Ms N, to her neighbour, Mr H. Ms N offered the land to Mr H in a letter by way of a private sale without involving a real estate agent.
Mr H wrote to Ms N by email indicating he was interested in purchasing the 200 acres adjoining his property. Emails back and forth between the parties saw the price and other details of the sale negotiated.
Ms N then instructed her solicitor to prepare a formal Contract for the Sale of Land to formalise the arrangement. Mr H retained a solicitor to review the Contract on his behalf.
After undertaking the necessary pre-purchase enquiries in relation to the rural land, Mr H instructed his solicitor to send the Contract to Ms N’s solicitor with a cheque for the deposit to initiate exchange of contracts.
Unbeknownst to Mr H, Ms N had been speaking to another party in relation to selling the whole of her property (including the 200 acres adjoining Mr H’s farm). At the “eleventh hour” Ms N decided to sell the whole farm to the other party and instructed her solicitor to return Mr H’s deposit cheque.
Mr H brought a case against Ms N claiming that a binding contract for the purchase of the 200 acres had been formed through the email communications with Ms N.
The court considered the emails and other correspondence between the parties, and ultimately decided that the wording in the emails & letters had not intended to bind the parties and both Ms N & Mr H were working towards a formal exchange of Contracts to “seal the deal”.
This case serves as a good reminder that vendors and purchasers are unlikely to be held to “handshake deal” when it comes to the sale & purchase of real estate – it is essential that formal Contracts for the Sale of Land are exchanged to lock all parties into the agreement.
To ensure you are not caught out in a conveyancing transaction, contact the experienced property team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Many businesses register intellectual property rights to protect their products, logos and brands. You might think that once the IP rights have been registered, there is nothing further to do, however this can be a trap with serious ramifications.
As discovered in a recent case involving a large well-known US camper van company, failing to take action on IP infringement can be costly.
The case involved an Australian business utilising the name and a similar logo to that of the US company. The Australian business began using the name and logo in the late 1970s, however it wasn’t until 1985 that the US company discovered the “copy-cat”.
Trading on the goodwill and reputation of another business is known as “passing off”. Passing off is usually designed to mislead and deceive consumers, and is also a breach of IP rights – by registering a trademark, the owner has a legally enforceable right to exclusive use of the trademarked item.
In this case, the passing off was clear. The big issue was why it took the US company until 1992 to challenge the use of its name and branding by the Australian business, and until 2010 to commence court proceedings.
Whilst the US company submitted various reasons for its delays, ultimately the court found that the US company had “sat on its hands” and done nothing to prevent the Australian competitor from continuing to use its name and logo. The court therefore allowed the Australian business to continue using the name and logo.
The case is a warning to all holders of IP that registration does not of itself provide protection – IP owners need to regularly review any potential infringements of their intellectual property, and act quickly if there is any sign of passing off.
If you need assistance with IP protection, contact the team at Everingham Solomons. We are well equipped to assist you with all your intellectual property enquiries because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
As we usher in the new year, those of us involved in property and conveyancing transactions are awaiting roll out of electronic conveyancing in 2014.
E-Conveyancing, as it is to be known, will involve electronic settlement of sales and purchases in an online workspace.
The early stages of a sale or purchase will remain the same, with solicitors preparing the contract for sale of land and submitting same to the legal representative of the purchaser. Once the contract has been reviewed, and the purchaser has obtained all necessary pre-purchase inspections (such as pest & building reports, survey and finance approval), the contracts will be exchanged and both parties locked into the deal.
From there, the paper process of arranging settlement will be done away with for most standard conveyancing transactions. At this stage, not all real estate will fall under the new system, however that is the goal. E-Conveyancing will also bring a standardised system into play across most Australian states and territories, which will make moving or buying/selling interstate a much simpler process.
Essentially, E-Conveyancing will mean faster lodgement of title deeds with NSW Land & Property Information which will ensure less room for human error (including postal delays). The days of drawing bank cheques for settlement will soon be a thing of the past, as financiers will liaise with vendor & purchaser (together with their respective solicitors) to book settlement of the transaction and funds will be provided electronically. For vendors, this means direct deposit of funds following settlement, and for purchasers no more waiting in line at the bank for cheques to be drawn!
Obviously time will tell as to whether the time and cost saving benefits of E-Conveyancing will be realised, however we look forward to coming online with the new system in mid-late 2014 because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
I have my reindeer antlers ready and my santa suit on standby; I have been reading the encyclopedia and atlas every night to brush up on my general knowledge. I am gearing up for the Women in Business Charity Trivia Afternoon co-hosted by Eversols and Forsyths Accountants.
With Anna Moulder of ABC New England North West as our Quiz Whiz Master, we will be hosting a trivia afternoon with a Christmas twist in support of World Vision.
Teams of six will battle it out to be crowned Trivia Quiz Whiz champions.
For a bit of fun, we are asking attendees to get into the festive spirit by wearing some Christmas bling.
All monies raised will be put towards purchasing gifts for women and children via World Vision’s Gifts program, such as “helping a woman start a business” and “sending a girl to school”.
Date: Thursday, 5 December 2013
Time: 3pm to 5pm
Venue: Forsyths, Level 3, V Guy Kable Building, 201 Marius Street, Tamworth
Ticket Price: $15 per person, tables of six
To reserve your table at the Women in Business Charity Trivia Afternoon, register at here by 2 December, or call the office on 02 6766 1066.
So get your Santa/thinking caps on and grab a friend, sister, mother or colleague to join you for an afternoon of Women in Business in support of World Vision.
Click here for more information on Rebecca Greenland.
A recent decision in the Land and Environment Court should be reviewed by landlords who rent their property for short-term stays to ensure the use of the property is not in breach of the Local Environmental Plan for the area.
The case of Dobrohotoff v. Bennic determined that the renting of a house to party goers for short-term stays was not a permitted residential dwelling use in the Gosford local government area.
The house, located in a beachside residential suburb, was usually rented out for weekends and week long stays. The neighbour brought the claim against the owner of the property after the neighbour’s complaints about late night parties and loud events such as buck’s & hen’s nights were ignored.
The neighbour’s case was brought on the basis that the house was not being used as a dwelling house as the short-term occupation by temporary tenants was inconsistent with the concept of a “dwelling”. The neighbour argued that the use was more akin to tourist accommodation, which was not permitted in the residential zone.
The owner of the house submitted that they had rented the property for short-term stays for a number of years, as had the previous owner.
The court determined that whilst renting of a property to a family or group as a genuine holiday house for periods of over one week would be permitted within the zoning, the use of the property for parties and functions was not a valid use of a dwelling house.
The decision is a timely warning, as we approach the holiday season, for landlords to check their local council zoning restrictions to ensure their rental properties are being utilized for an approved purpose. It is also important to note that the responsibility for complying with council zonings lies with the landlord, and not their real estate agent.
If you are considering purchasing an investment property, it is important that you advise your solicitor if you are intending to rent the property for short-term stays so that the necessary enquiries can be made of council before committing to the purchase. The Property Team at Everingham Solomons is well equipped to assist you with these zoning issues becauseHelping You is Our Business.
Click here for more information on Rebecca Greenland.
Where a person leases a house on a farm, it can sometimes be unclear whether they are a residential tenant or an agricultural tenant.
A residential tenant has rights and responsibilities under the Residential Tenancies Act 2010. This legislation governs the landlord’s requirements to provide a safe and secure residence, matters that are to be included in a lease, what constitutes a breach of the lease, and the tenant’s right to privacy.
An agricultural tenancy is governed by the Agricultural Tenancies Act 1990. This Act sets out the rights of tenants to receive compensation for improvements undertaken on the property, and the capacity of landlords to require maintenance of land and infrastructure. The Act also provides a framework for resolution of disputes.
The Agricultural Tenancies Act only applies to farms that are larger than 1 hectare.
Where the principal use of a property is for agricultural purposes (which includes grazing, cropping, poultry & pig farming, bee-keeping, dairying and viticulture), the tenancy will be deemed agricultural. Even if the tenant leases the farm as well as a house, the tenant will not have the protection of the Residential Tenancies Act.
This means that a tenant will need to be aware of their responsibilities under the Agricultural Tenancies Act to ensure that they do not carry out work that is not authorised – doing so could mean that the tenant is not entitled to be compensated and the landlord will be deemed to own any new infrastructure but will not have to pay the tenant for the materials or labour.
It is therefore important that the landlord and tenant agree on what is required of each party at the beginning of the tenancy, and that the agreement is formalised by entering into a lease. The lease should also include a condition report, so that there is a reference point for any matters that become contested in the future. Photographs are a good way to document the condition of houses, sheds and fencing as well as pasture & weeds.
Whether you are a landlord or tenant, if you are considering entering into an agricultural lease contact the experienced conveyancing team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Land Tax is a tax levied by the NSW Government on owners of land. Generally your home or “principal place of residence” is exempt from Land Tax.
Whilst “principal place of residence” appears to be a fairly straightforward concept, arguments often arise in relation to the term, particularly when the Office of State Revenue is chasing Land Tax payments.
Essentially Land Tax is not payable on land that is a “principal place of residence” – that is, residential land that is used and occupied by the owner as their principal place of residence and for no other purpose (with limited home business exceptions).
When determining whether a property is a “principal place of residence”, the following factors are taken into consideration:
the architectural design and physical character of the property (such that a sleeping place or presence of a bed does not necessarily make the property a “residence”)
matching the owner’s tax returns, utility bills and drivers licence to the address claimed as the principal place of residence
the legal right to occupy the property (for example, living in a shed whilst a house is constructed)
whether the residence is habitable
whether the utility consumption for the property (for example water, electricity and gas) indicates the owner is living in the residence
With the Chief Commissioner of State Revenue always on the lookout for landowners trying to avoid Land Tax, it is important that the property claimed as your “principal place of residence” is actually that – falsely describing your property as a principal place of residence attracts interest and steep penalties.
It is also necessary for landowners with multiple properties to register for Land Tax so as to receive annual assessments. The Land Tax threshold for 2013 is $406,000 – meaning if the combined unimproved land value of all land owned is greater than this threshold, Land Tax will be payable.
If you are considering purchasing land, contact the experienced conveyancing team at Everingham Solomons who can assist you in determining whether you will be liable for Land Tax because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
New legislation that comes into force shortly will ensure that both landlords and vendors looking to sell properties with a swimming pool have undertaken all works necessary to make the pool compliant with safety regulations.
