There’s been amendments to the Residential Tenancies Act 2010 and new Residential Tenancies Regulation 2019 which commenced on 23 March 2020.
The purpose of the changes are to improve the tenants’ renting experience while ensuring landlords can improve management of their properties.
The aim of the changes are:-
* to assist with reducing disputes over repairs and maintenance,
* increase protection and certainty for tenants, and;
* clarify the rights and obligations of tenants and landlords.
One of these changes is a new form of Residential Tenancy Agreement and Condition report to be used for agreements entered into from 23 March 2020.
Landlords or agents will also need to sign an acknowledgment on the tenancy agreement that the landlord has read and understood the Landlord Information Statement. No signature is required on the document itself, however penalties apply if the document is not read and understood.
A new Tenant Information Statement will replace the current New Tenant Checklist that landlords/agents must give a tenant before the tenant enters into a Residential Tenancy Agreement. A landlord/agent must not make false or misleading statements or knowingly conceal certain material facts from a prospective tenant before they sign an agreement. There is now an updated list of material facts a landlord/agent must disclose to a tenant prior to entering into a tenancy agreement which I will explain in upcoming articles.
If you need assistance with any property or land matters contact Everingham Solomons because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Recently, the Australian Prime Minister announced a limited time only grant to assist homeowners with building a new home or substantially renovating their existing home.
The Homebuilder Grant will give eligible home owners an amount of $25,000.00 toward their building contracts.
The eligibility requirements for the grant are as follows:
1. Australian citizen/s over the age of 18 years old;
2. Owner/s of the land must not be a company or a trust;
3. Be an individual with a taxable income less than $125,000.00 or if you are a couple with a combined taxable income of less than $200,000.00;
4. Enter into a contract for building work after 4 June 2020 and before 31 December 2020, with construction commencing within 3 months of the contract date; and
5. The building contract must be either for a new home valued less than $750,000.00 or for a substantial renovation to your principle place of residence where the value of your home is not more than $1.5 million and your building contract is between $150,000.00 and $750,000.00.
There are some limitations to what you can use the grant for. You must use the grant to improve the main dwelling on the land and cannot use it for other additions such as swimming pools, sheds or other sporting/ recreational facilities.
This grant is in addition to the already existing NSW First Home-owners Grant (New Home) and the NSW First Home Buyers Assistance Scheme. It can also be used in conjunction with the Commonwealth’s First Home Loan Deposit Scheme and the First Home Super Saver Scheme.
Whether you’re looking to purchase your first home, or to purchase an investment property, Everingham Solomons have experienced Conveyancers, Solicitors and Property Specialists to assist you because Helping You is Our Business.
So, you are looking to find the perfect property. You have spoken to your bank and know the price range which works best for you. You have even remembered to factor stamp duty into your budget. For those who may have forgotten, stamp duty is a duty which is payable when you acquire property in NSW. For example, purchasing a property for $400,000 would incur stamp duty of $13,452. If you are a first home buyer, you may be eligible for an exemption from duty.
If you are acquiring property as a gift, stamp duty is still payable, unless an exemption applies. As there is no purchase price, stamp duty is calculated on the value of the property which must be evidenced by a Valuation.
A Valuation may also be needed for purchase transactions involving related parties. In such a situation, stamp duty would be calculated on the greater of the purchase price and the value of the property.
Upon stamping of the Contract and/or Transfer, Revenue NSW will require that you complete a Purchaser/Transferee Declaration. The purpose of the declaration is to report to the Australian Taxation Office on the transfer of land and to identify if you are a foreign person as Surcharge Purchaser Duty and Surcharge Land Tax may be applicable.
Supporting evidence must also be furnished to Revenue NSW. For instance, if you are acquiring land in your own name and are an Australian citizen, you will need to produce a certified copy of your full Birth Certificate (not extract), current Australian Passport or Australian Citizenship Certificate. If the name on any of your documents is not your current name i.e. you have since married, you will need to produce evidence of your change of name. Such evidence includes your Marriage Certificate issued by the Registry of Births Deaths and Marriages. The ceremonial certificate signed on your wedding day is not sufficient evidence.
To make the transition to home ownership as smooth as possible, contact the expert team at Everingham Solomons, where Helping You is Our Business.
Click here for more information on Jessica Wadwell
So you have sold your house and moving to a new property, who do I need to notify?
First, you should contact Australia Post and complete the mail redirection form to have any mail redirected to your new address. This redirection can be for a period of 1, 3, 6 or 12 months. You also need to ensure everyone in the household will be covered under the redirection form.
Some government departments like Roads & Maritime Services and the Firearms Registry have requirements that you need to advise them within 14 days of your change of address.
The other organisations/businesses you need to advise of your change of address are:-
• Roads & Maritime Services for your driver’s licence, vehicle/trailer/caravan and boat registrations
• Firearms Registry
• Services Australia: – Centrelink, Medicare, Child Support Agency
• Department of Veterans’ Affairs
• Australian Taxation Office
• Electoral Commission
• Recreational Fishing Licence
• Bank/Credit Union/Financial Institution
• Insurance providers
• Company Share registries
• Tradesperson/professional licence i.e. plumber/builder and real estate agent/conveyancer
• Accountant/Financial Advisor
• Solicitor
• Superannuation Fund
• Childcare/School/Tertiary
• Utilities e.g. Electricity/Telephone/Water/Gas/Council rates
• Pet Registration
• Doctor/Dentist/Optomerists/Podiatrist/Physiotherapist/Chiropractor etc
• Private Health Insurance
• Pap Test registry
• DonateLife
• Magazine subscriptions
• E-toll provider
• Seniors Card
• Internet provider
• Pay TV/Netflix etc
• Loyalty/Reward cards
• Gym
• Family and friends
Most of the above organisations/businesses can be updated online or some you may need to physically attend and provide an identification document. Don’t forget that it is also essential that you contact the above organisation/businesses if you receive a new email address or mobile phone number.At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
If you own a Family Trust that owns residential land in NSW or intend to purchase residential land and/or premises using your Family Trust, please note that Revenue NSW considers a Family Trust to be automatically subject to the foreign person surcharge on stamp duty and Land Tax.
The surcharge for land tax is 2% above the usual charge of 1.6%.
The surcharge for a foreign Person purchasing land is 8% of the purchase value.
Land Tax is charged every year so it is a particularly penal and unfair provision. It takes the annual land tax charge to 3.6% per year. If you had land with a land value of the $400,000.00, your annual land tax bill would be $14,400.00!
Stamp duty on the purchase of a $400,000.00 property would increase from $13,432.00 to $ 45,432.00, a 32,000.00 penalty!.
Most Family Trusts deeds, have a very broad definition of a “beneficiary”. Revenue NSW has taken the view that if the definition in your Trust Deed could possibly permit a benefit to be paid to a foreign person (even if that has never occurred or is never likely to occur), it will deem the Trust to be automatically subject to foreign person surcharge on stamp duty and/or Land Tax.
You may or may have already received a letter from Revenue NSW advising that your Family Trust may be subject to the 2% land tax surcharge.
There is however a way to avoid the surcharges, provided you don’t have foreign persons as beneficiaries.
Most Family Trust Deeds permit the terms of the Trust Deed to be amended. The solution is to exclude foreign persons as potential beneficiaries of your Trust.
Each terms of each Discretionary Trust Deed are different and accordingly a thorough reading of the Trust needs to be undertaken to enable the amendments to be made to protect your interest.
At Everingham Solomons, we have the expertise to assist you in all of your legal matters because Helping You is Our Business.
It is said, “The only constant in life is change”. How true, particularly in law where legislation seems to be constantly changing.
For those of you who are looking to develop residential property or purchase new residential property you need to be aware of the new requirements which came into effect on 1 December 2019.
A developer is now required to provide a Disclosure Statement which should be attached to the Contract.
The Disclosure Statement needs to include:-
• A draft plan of the property prepared by a Registered Surveyor showing the lot number, location and area;
• A draft floor plan and location plan of the property;
• Any proposed bylaws, development Contract (including strata development contract) and management statement; and
• Schedule of finishes to be included in the property.
Also of particular note are the following changes:-
• The Cooling Off period for a purchase “off-the-plan” has been extended from 5 business days to 10 business days;
• If there are any material changes to the subject property the developer is required to serve a “notice of change” which may trigger a
right for the purchaser to rescind or claim compensation of up to 2% of the purchase price from the developer. The purchaser may only
rescind if the change was such that the purchaser would not have entered into the off-the-plan Contract and they would be materially
prejudiced by the change;
• The purchaser is not required to settle earlier than 21 days after receiving copies of the registered plan and other documents
associated with the plan; and
• The deposit paid by the Purchaser must be held in a Trust Account or Controlled money account (investment) by a Real Estate Agent,
Licensed Conveyancer or Legal firm pending completion and cannot be released to the developer.
The above seem to imply that the legislation relates to strata unit developments. That is not the case as the legislation also includes vacant land which is capable of having a residence constructed on it.
Everingham Solomons can assist whether you are a purchaser or developer because Helping You is Our Business.
So, you have sold your property and have decided to purchase another. It may sound simple, however the process can be rather cumbersome and there are various matters which require your careful consideration. For instance, should your purchase Contract be made conditional upon your sale? Do you have a cash deposit available for your purchase or are you relying on your sale proceeds? Can you obtain early access to your purchase property to ensure vacant possession of your sale property is provided on settlement?
The Conditional Contract:
If you are relying on your sale proceeds for your purchase, it is important to make your purchase Contract conditional upon completion of your sale. This will permit you to withdraw from your purchase, usually without penalties, in the event your sale does not proceed to settlement. This, of course, is subject to the vendor in your purchase being agreeable to entering into a conditional Contract, as a conditional Contract does provide some uncertainty to the vendor that the purchase may fall over if issues arise in your sale.
Early Release of Deposit:
If you do not have sufficient funds available for a deposit in your purchase, you may be able to obtain early release of the deposit in your sale to use as a deposit in your purchase. Alternatively, you could seek to pay a reduced deposit or use a Deposit Bond in lieu of a cash deposit. Ultimately, this would be subject to either the purchaser in your sale being comfortable with the early release of the deposit or the vendor in your purchase being agreeable to accepting a reduced deposit or a Deposit Bond.
Vacant Possession and Early Access:
Most Contracts require that you provide vacant possession of your property on settlement and that you cannot begin moving into your new property until settlement has occurred. For properties which are significant distances away, this may not be of concern when transit times are factored into the settlement timing. However, for properties within close proximity, you may find yourself at your new home with an entourage of removalists waiting for settlement to occur. Accordingly, with the vendor’s approval, you may be able to obtain early access to the property or part of the property i.e. garage to begin moving items into the property prior to settlement.
At the outset, discuss your plans with the real estate agent in your sale and purchase to ensure they, and the other parties, understand your position at the time of negotiating the sale and purchase. Also, discuss your plans with your solicitor to ensure the appropriate conditions are incorporated into the Contracts. To make the move from your existing home to your new home as smooth as possible, contact the property team at Everingham Solomons, because Helping You is Our Business.
Click here for more information on Jessica Wadwell
There are strict rules that apply when a Landlord wants to bring a residential tenancy to an end.
A termination notice must be provided to the tenant. This notice must be in writing, addressed to the tenant, signed and dated by you or your managing agent, provide the date the tenancy is to be terminated and the tenant needs to vacate and in some circumstances provide the reason for the notice.
In some circumstances there is no minimum notice period for the tenant – for example if the tenant dies, the property becomes uninhabitable or is destroyed, is being compulsorily acquired (for example by Council) or is not legally usable as a residence.
In most circumstances minimum notice periods apply to terminate a tenancy, depending on the situation:
If the fixed term has expired and the tenant has continued on – 90 days
If the property has been sold as vacant possession, and the fixed term has expired – 30 days
If the fixed term is coming to an end – 30 days
If the tenant has breached the tenancy agreement or is more than 14 days in rent arrears – 14 days
It is important to note that once a tenant has been given notice they can move out at any time without giving you notice. The tenant will only need to pay rent until they vacate the property, unless they are still under a fixed term agreement whereby they will need to pay rent until the end of the fixed term.
A second notice on different grounds may be given to a tenant if necessary, for example if the tenant has been given notice to end the fixed term but then doesn’t continue to pay rent.
Different rules apply for Commercial, Industrial and Retail leases.
Confused about your rights as a Landlord? Contact the team at Everingham Solomons because Helping You is Our Business.
You’ve been saving hard and have the deposit to purchase your first home. You’ve looked at many houses and finally found the one. You’ve made an offer through the real estate agent and your offer has been accepted by the vendor.
You organise your pest and building reports. You know your finance is arranged as you’ve been pre-approved by your chosen lender. WRONG!
A pre-approval of finance from a lender is only an “indication” of the amount the lender considers you may borrow based on your previous financial circumstances. Until you receive written confirmation of finance approval from your lender noting the details of the house you intend to purchase and sign a loan contract, the lender is under no obligation to provide you with finance. If you were to exchange contracts based on the “pre-approval letter”, you may not be able to complete your purchase as the finance has not been formally approved for that house.
Not being able to complete your purchase may result in the vendor being able to terminate the Contract, keep your deposit, sue you for any shortfall in the price upon resale of the property and sue you for costs and expenses associated with your inability to complete the Contract and recover damages for breach of Contract.
Once your offer has been accepted, you need to make an appointment with your lender as soon as possible to complete a loan application for your chosen home. In most cases, your lender will arrange for a valuation of the property to be carried out to ascertain whether it will provide them with adequate security for their loan.
Many lenders need to submit your loan application to their mortgage departments located either in Sydney, Melbourne, or Adelaide. This takes time so you need to contact your lender quickly as this will enable you to safely exchange contracts and secure the property you wish to buy.
Some lenders provide a letter stating your loan has been approved subject to various conditions set out in the loan contract. This means you must wait to see the loan contract document to find out what terms and conditions you must comply with before the loan will be approved.
At Everingham Solomons, we take our role of protecting your interests very seriously. We work hard to help you secure the home you wish to purchase and make sure you do not end up in the position where you risk incurring a significant financial loss because you were unable to complete your contractual obligations. It might seem like it can take a long time before contracts are exchanged, but it’s all in the interests of looking after you – our client, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
Quite often, land developers place restrictive covenants on land. For example the restrictive covenant be that: the land shall only be used for residential purposes, the buildings must be of a certain size or of a certain material or type of construction or design.
Are these restrictive covenants enforceable? The answer is sometimes yes and sometimes no.
Let’s take another example. If you purchase land in a subdivision which contains a restrictive covenant that permits the erection of a single residential building only, can you legally erect a multiple occupancy dwelling such as a duplex or triplex?
Despite what most people think, if the Local Government zoning laws permit multiple occupancies and a Development Consent to build multiple occupancies is granted by the Local Council, then the Council’s Development Consent overrides the restrictive covenant on the land. Therefore the restrictive covenant is ineffective and you can build a multiple occupancy dwelling on the land.
This is because of the provisions of Section 28 of the Environmental Planning and Assessment Act 1979 which clause is mirrored in Clause 1.9a of the Tamworth Local Environmental Plan, provides that to enable any development that has been approved by the Local Council, any covenant or other restriction on use of the land, shall not apply.
The aim of the legislation is to permit any development that is permitted by the zoning laws to be carried out irrespective of private covenants.
Section 28 however only affects a restrictive covenant to the extent that the covenant conflicts with a planning instrument or a consent.
Accordingly, Section 28 will not affect a restrictive covenant where the covenant does not conflict with an environmental planning instrument or development consent. For example in a restrictive covenant in relation to design of a structure, the type of fencing, the type of lawns etc, will remain valid and enforceable.
Land Law is complex.
At Everingham Solomons we have the expertise to assist you in all of your land dealings because Helping You is Our Business.
There’s been amendments to the Residential Tenancies Act 2010 and new Residential Tenancies Regulation 2019 which commenced on 23 March 2020.
Recently, the Australian Prime Minister announced a limited time only grant to assist homeowners with building a new home or substantially renovating their existing home.
So, you are looking to find the perfect property. You have spoken to your bank and know the price range which works best for you. You have even remembered to factor stamp duty into your budget. For those who may have forgotten, stamp duty is a duty which is payable when you acquire property in NSW. For example, purchasing a property for $400,000 would incur stamp duty of $13,452. If you are a first home buyer, you may be eligible for an exemption from duty.
If you own a Family Trust that owns residential land in NSW or intend to purchase residential land and/or premises using your Family Trust, please note that Revenue NSW considers a Family Trust to be automatically subject to the foreign person surcharge on stamp duty and Land Tax.
There are strict rules that apply when a Landlord wants to bring a residential tenancy to an end.