Development and the requirement for Council approval

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthDoes all development need Council approval? 

The type and size of the development will determine whether Council approval is required.  Generally, minor development such as small decks or garden sheds are identified as exempt development and can be undertaken without Council approval.  Development such as home additions will require Council approval.  Prior to undertaking any development, you should seek Council or legal advice specific to your development.

How do I obtain Council approval of an unapproved structure? 

The owner or an authorised third party can apply for a Building Information Certificate.  This certificate is issued by Council and is confirmation that Council will not issue an order, or take proceedings for an order or injunction, for the repair, demolition, alteration, addition or rebuilding of the building.  Applying for this certificate will require a survey report of the property and Council’s inspection of the structure.  If Council refuses to issue the certificate, Council must notify the applicant setting out the reasons for its decision and the work required to be undertaken to permit a certificate to issue.  Depending upon the type of work required, this may result in additional costs.  Once issued, the certificate is for a period of seven (7) years and covers such matters which exist at the time of issue of the certificate.

Selling a property with an unapproved structure?

Vendors should discuss any unapproved structures on their property with their solicitor.  This is due to the prescribed warranty under the Conveyancing (Sale of Land) Regulation 2017 that provides ‘the vendor warrants that, as at the date of the contract and except as disclosed in the contract … there is no matter in relation to any building or structure on the land … that would justify the making of any upgrading or demolition order’.  A breach of this warranty by the vendor may result in the purchaser being permitted to rescind the Contract.

Purchasing a property? 

Be alert to structures that require Council approval.  Initially, you or your solicitor should make enquiries of the vendor to obtain copies of the Council approvals held.  If the vendor does not hold approvals, Council records can be inspected with consent of the vendor.  These records may take time to obtain, so parties should be conscious of potential delays.

Important reminder!

If you are planning to undertake development upon your property, check whether Council approval is required.  If so, ensure all approvals are in place before works are commenced and the works are consistent with the development consent.  Don’t forget to schedule the appropriate inspections during construction to obtain that final approval known as an occupation certificate.

Feeling overwhelmed by the process of obtaining Council approval?  Contact the friendly and experienced team at Everingham Solomons, where Helping You is Our Business.

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Remote Witnessing is Here to Stay

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthCovid-19 has forced a lot of industries to adapt to a new way of business and the legal industry is no different. Limits to face-to-face contact has forced the development of technologies and laws to allow for remote witnessing of legal documents.

During the pandemic the NSW Parliament introduced temporary legislation to allow for the signing and witnessing of documents via ‘audio-visual link’ (AVL). It proved so successful that the recent passing of the Electronic Transactions Amendment (Remote Witnessing) Bill 2021 has now cemented the temporary measures into law.

AVL witnessing operates by the witness observing the client sign a document in real time over AVL. The witness then confirms having witnessed the signing by the client by either signing the document as soon as practicable after witnessing or signing an exact copy of the document. The witness further endorses the document by specifying the method of AVL signing.

Being a regional firm based in Tamworth and Quirindi and servicing the entire North West region, Everingham Solomons is welcoming this opportunity to better serve our clients. The ‘tyranny of distance’ has long been a frustration and now we are seeing the measures introduced to endure the pandemic producing long-term benefits for our clients.

People living in regional or remote areas, or those that may suffer from illness or mobility problems can now benefit from this choice and flexibility.

Everingham Solomons understands the need for access and flexibility because Helping You is Our Business.

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Abolition of Certificates of Title for land in NSW

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthFrom 11 October 2021, all paper Certificates of Title for land in NSW will be cancelled and converted to electronic Certificates of Title.

What does this mean for me as a landowner?

1. If you hold a paper Certificate of Title, that paper title will be cancelled.
2. Those who pay off their mortgage will not receive a paper title.
3. A cash purchaser of land will not receive a paper title following settlement.
4. When a parcel of land is subdivided, consolidated or in any other way created, a paper title will not be issued for that new parcel of land.

Don’t panic! The cancellation of your paper Certificate of Title will not change the ownership of your land.

The Torrens Title Register is the primary register for land held in NSW. This register records land ownership and will continue to be the primary source recording a person’s interest or estate in land in NSW.

The purpose of the cancellation of paper Certificates of Title is in line with the Registrar General’s transition to 100% electronic Conveyancing.

Whilst most dealings with land registered on the Torrens Title Register must already be lodged electronically by a subscriber i.e. solicitor or conveyancer, once this transition is complete, all documents must be lodged electronically by a subscriber.

At Everingham Solomons, we strive to complete your conveyancing transaction efficiently, accurately and securely, because Helping You Is Our Business.

Property Purchase – Is a Survey Report an additional cost or a cost-saving?

There are various enquiries and inspections you should consider undertaking when purchasing a property. One of those is a Survey Report.

What is a Survey Report?

A Survey Report is obtained from a surveyor to establish that the improvements you wish to buy are actually located on the land you are buying and also to establish if there are any encroachments by improvements onto other properties or by improvements onto the land you are buying. A further purpose is to demonstrate that the house is positioned on the land in order to comply with Council’s set back requirements from the boundaries. The location of the fences may not be a true indication of the property boundaries.

How much does a Survey Report cost?

The cost of a Survey Report for a residential property consisting of a house and land usually starts at $1,000.00 and will increase depending upon the size and location of the property.

Do I need to obtain a Survey Report?

There is no requirement to obtain a Survey Report when purchasing property however, it is an important report you should consider obtaining.

What are the consequences of not obtaining a Survey Report?

There may be no consequences or you may find yourself in a situation where you have purchased a property and the structures on the property encroach upon neighbouring land. You will then have the potential added costs of addressing the encroachment including entering into negotiations with the neighbour for a boundary adjustment or easement for the encroachment, or having to upgrade or demolish the encroachment. You may also encounter difficulties or delays in selling the property if a subsequent purchaser identifies issues with the boundaries. Accordingly, the cost of obtaining a Survey Report at the time of purchase could assist in avoiding the added costs of dealing with issues in the future.

At Everingham Solomons, we discuss the inspection options available to permit purchasers to make informed decisions because Helping You is Our Business.

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Oh no, where has my money gone! Cybersecurity in property transactions.

With the increased use of online services across all areas of our lives, cybersecurity is extremely important. Particularly in conveyancing transactions where large amounts of money are transferred between accounts.

Email phishing is of particular concern and requires that we all be extra vigilant in dealing with email communications. Phishing is where a criminal impersonates an organisation in order to steal or alter important information.

For example, let’s say you have a property purchase coming up and have been liaising with your solicitor via email. Your email may have already been hacked without your knowledge and the hackers have been tracking those emails. Your solicitor sends you an email outlining their trust account details for deposit of settlement funds. This email is intercepted by the hackers who change the bank account details. The email then continues to you with the hacker’s account details and you subsequently transfer the funds to the hacker’s account. The funds are never received into the solicitor’s trust account and the panic sinks in. Goodbye money.

In the above example, the end result could have been avoided by telephoning your solicitor to verify their trust account details. This account verification process can be applied to all instances where account details are received via email. Importantly, you should check the telephone number within the email to ensure this also hasn’t been changed by the hacker. You want to ensure you contact the person you have been liaising with to confirm any bank account details rather than the hacker.

As hackers become increasingly sophisticated, it is important that we are all cyber vigilant. Caution is better than catastrophe!

At Everingham Solomons we take cybersecurity seriously because Helping You is Our Business.

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Acquiring Property? Revenue NSW requires more than just payment of Stamp Duty

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.

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The Simultaneous Settlement: Selling & Purchasing Property at the same time

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.

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Phone, Wallet, Keys… Don’t Forget Your Pre-Purchase Inspections!

A Contract for the sale and purchase of property includes conditions stating that the purchaser accepts the property in its current condition and state of repair subject to all defects both obvious and hidden. You might have heard the saying “let the buyer beware”.

As a result, purchasers have an extremely limited right to complain after exchange of Contracts regarding the quality of the improvements and inclusions. Improvements include the structures on the property, for instance the house, shed, etc.  Inclusions are usually movable items included in the sale, for instance the blinds, stove, air conditioner, etc.  Purchasers should undertake thorough inspections of the property and the inclusions prior to exchange of Contracts, which is when the parties are formally bound by the Contract terms.  The inspection process can be split into two stages.

Stage One – Purchaser Inspections

It is recommended that purchasers undertake a minimum of two physical inspections of the property. Often, in the excitement of first seeing the property, purchasers may overlook matters.  Purchasers can obtain a copy of the Contract from the real estate agent to take to the inspection as all residential properties listed for sale in NSW are required to have a marketing Contract.  Purchasers should review the improvements and inclusions noted on the Contract to establish whether they are accurately listed.  A review of the title search is important to ascertain whether there are any easements or rights of carriageway affecting the property.  For instance, if access to the property is obtained via another’s property, the title search should recite a right of carriageway.

Purchasers should review any plans attached to the Contract. Whilst the deposited plan will not reveal the location of the improvements on the land, it does show the boundaries of the property and may assist in identifying any possible encroachments.  The plan of sewer line will indicate where the sewer main runs and may also show connections into the property.  This can alert purchasers to potential issues regarding structures over sewer mains, or unapproved works if, for instance, connections to a further bathroom aren’t shown on the plan.

Stage Two – Professional Inspections

There are various professional inspections which can be obtained. Most purchasers will initially obtain a pest (white ant) report and building inspection report. A purchaser may also wish to obtain an electrical inspection, Survey Report, Building Information Certificate and/or inspect Council records.  If the home has loose fill insulation, you will certainly want an asbestos test. For purchasers obtaining finance, it may be a condition of the finance approval that certain inspections are undertaken.

It is ultimately at the purchaser’s discretion as to which pre-purchase inspections are undertaken. Depending upon the individual purchaser’s appetite for risk and the property, inspections obtained will vary. At Everingham Solomons, we discuss the inspection options available to permit purchasers to make informed decisions because Helping You is Our Business.

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Latent and Patent Defects from the hidden to the obvious and uncertainty in between – Jessica Wadwell

JRWThere are many terms which might sound quite foreign when you sell or purchase real estate property. For instance, you will often hear the terms “latent defect” and “patent defect”.  For many, this may be the first time you have heard these terms.  So, what do these terms actually mean and how should they impact your decision making when selling or purchasing property?

A “latent defect “is one which a purchaser is unable to reasonably discover upon an inspection of the property.  A “patent defect” is one which a purchaser, who inspects a property with reasonable care, ought to see or discover.

A defect may be either a title or a quality defect.  A defect in title is an interference in the vendor’s ability to perform their obligation to transfer the title under the Contract, being the subject matter of the sale (including the improvements).  A defect in quality affects the quality of the land and/or improvements.  Whilst a defect in quality may affect the value of the land, or the use to which the land or improvements on the land may be put, it does not interfere with the vendor’s ability to transfer the title.  For example, use or zoning of the land, physical defects in the land or improvements (i.e. structural defects, pest infestation, land contamination, etc.).

A vendor is only obliged to disclose to a purchaser latent defects in title.  In respect of all other defects, being patent defects in title and quality, and latent defects in quality, the rule is caveat emptor or “let the buyer beware”.

A vendor’s failure to disclose a latent defect in title may entitle the purchaser to terminate the Contract, if sufficiently serious. Accordingly, it is important that defects are classified correctly.  However, such distinction is not always easy to make.  It may be prudent for a vendor to disclose the defect in the Contract with an acknowledgment by the purchaser that the disclosure has been made.  This not only assists the purchaser with their inspections of the property and decision making, but also provides more certainty to the vendor by limiting the purchaser’s right to object or assert other rights regarding the defect.

You should discuss any potential defects in the property with your solicitor. Feeling overwhelmed by the terminology used in conveyancing transactions?  Contact the friendly and experienced team at Everingham Solomons because, Helping You is Our Business.

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The importance of having a marketing Contract for the Sale of Land – Jessica Wadwell

JRWIn order for residential property in NSW to be advertised for sale, a Contract for the Sale of Land is required to be prepared.  Whether you decide to sell your property through a real estate agent or privately, you are still required by law to have a Contract prepared.  It is therefore important that vendors understand their obligations, especially in situations where vendors have privately listed their property for sale via an online platform.

Briefly speaking, a Contract consists of terms and conditions together with mandatory prescribed documents.

There are numerous terms and conditions contained in the Contract which are standard form, however, can appear quite daunting.  Accordingly, vendors should approach a qualified solicitor or licenced conveyancer to assist in the preparation of their marketing Contract, at the earliest opportunity.  Further, most solicitors and conveyancers also insert certain special conditions into the Contract, to protect a vendor’s interests and to assist in the selling process.

Also contained in the Contract are prescribed documents.  These include, but are not limited to, title and plan searches of the land together with a zoning certificate and sewer diagrams.  Any further documents recited on the title search are required to be attached to the Contract.  For instance, documents relating to any easements, rights of way, restrictions on the use of land, etc.  If a swimming pool is located at the property, a valid certificate of compliance or non-compliance, or relevant occupation certificate is also required to be annexed to the Contract.

It is important that the Contract is correctly prepared prior to the property being listed for sale to ensure the transaction is processed with due speed and minimum inconvenience to all parties.  In particular, vendors should check that the improvements, inclusions and exclusions (if any) are correctly recorded in the Contract.  Vendors should also carefully review the title and plan searches, and other prescribed documents to ensure they accurately depict the property.  Addressing errors or omissions at the first opportunity avoids the added stress of attempting to deal with such issues once other parties become involved.

Having a Contract which is not properly prepared can have dire consequences.  For example, a Contract which does not comply with legislation, entitles a purchaser to withdraw from the sale prior to settlement.

At Everingham Solomons, we strive to provide our clients with timely, proper and expert advices because Helping You is Our Business.

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