Council has a sewer/water main on my property but no easement?

We are often asked whether a local council requires an easement for its water and sewer pipes to remain on a person’s private land and further whether council is entitled to enter upon the private land to carry out repairs and works on that infrastructure.

The Local Government Act provides the answer in respect of storm water works, sewer and water supply works.

Section 59A of the Local Government Act provides that Council is the owner of all works of water supply, sewerage and storm water drainage installed in or on land by the council, whether or not the land is owned by council.… Read More

Is the sale of farmland GST free?

The answer is sometimes.

Where a farming enterprise has been carried on a rural property, for a minimum of 5 years and where the purchaser intends to carry on a farming operation, then generally the sale will be exempt from payment of GST.

A recent matter highlighted the importance of ensuring that each transaction is examined on its facts and generalisations such as the above rule, are not adopted on a wholesale basis.

The facts: The sellers had operated a farming enterprise (sheep) on their property for many years. They had agreed to sell 15 acres from their rural property to a Purchaser.… Read More

Beware! Family trusts to be charged surcharge land tax and stamp duty.

The State Revenue Legislation Further Amendment Act of 2020 has received Royal Assent.

In short, the Act indicates that any discretionary trust or family trust or testamentary trust that owns or will purchase residential property, may be subject to surcharge land tax and surcharge stamp duty.

This means that if a discretionary/family/testamentary trust is purchasing residential property, it will be charged an additional 8% of the market value of a property by way of surcharge stamp duty.

In addition, surcharge land tax over and above the standard rate, is increased by 2% on the unimproved value of the land.

Land tax is particularly nasty as it is levied each year on the 31 December.… Read More

Family Trust– Surcharge Taxes Now In Place

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.… Read More

Residential Off-the-plan Contracts

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.… Read More

Can a trustee delegate his/her duties?

The position of a trustee of a trust is an important position which is governed by State and Commonwealth Legislation and Case Law.
Trustees of a family trust have many duties. Broadly speaking, these include the trustee:
• Acting in good faith;
• Acting personally;
• Acting unanimously where multiple trustees are involved;
• Not being dictated to by others such as beneficiaries;
• Having a duty to consider how distributions should be made and to whom; and
• Having a duty to avoid fettering of any discretion they have.

So can a trustee appoint someone else to perform the trustee’s duties, like an attorney?… Read More

Do Restrictive Covenants on Land Restrict Development?

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.… Read More

You’ve Decided To Sell Your Home – What Now? – Terry Robinson

Before you can advertise a residential property for sale you are required by law to have a copy of the Contract available for prospective Purchasers to inspect. This is required whether you propose to sell through a Real Estate Agent or privately.

To enable a Contract to be prepared you should contact your Solicitor or Conveyancer as soon as possible to avoid delays in getting the Contract prepared.

Legislation sets out various documents and certificates that are required to be attached to the Contract, failure to attach these could potentially give the Purchaser a right to get out of the Contract after Contracts have exchanged.… Read More

Can I Change the Purchaser’s Name on a Land Contract?

This is an often asked question. Typically, someone will have bought a property at auction in their own name, or from an off-the-plan development and then decide they want to buy the property in the name of their spouse or some other entity like their super fund.

The decision to change names often happens after they have discussed the purchase with their accountant and/or solicitor and things like asset planning and estate planning are raised.

Most people seem to think they can simply change the “purchaser” on the contract by inserting the words “or nominee”.

That process in most cases will not work and will result in you paying double Stamp Duty.… Read More

Pedal the Peel Cycling Challenge 7 April 2019

Everingham Solomons is proud to be one of the major sponsors and organisers of the Pedal the Peel Cycling Challenge to be held at Moore Creek Tennis Club, Moore Creek Rd, Tamworth on Sunday, 7 April 2019.

The event is unique to Tamworth because it caters for all levels of rider fitness and experience.

You can choose from a flat 15 km or 25 km course or the more challenging 45 km or 100 km hilly courses.

The event is designed to encourage all levels of riders (minimum age 12 years) to become involved, have a great fun day and help raise money for local charities.… Read More