Jul 3, 2022 | General Advice, Property Law
The 2020 bushfires across Australia had devastating effects on the lives of so many Australians. Many lost homes, treasured possessions or most terribly, a family member or friend.
In the aftermath of this natural disaster, we had clients call us to seek advice on their rights in respect of their home insurance. Some overlooked paying their insurance premium. When they were told to evacuate their homes, they rang their insurer to check that their policy was current and were told that they had not paid the premium and therefore the policy had expired. They asked to pay the premium immediately to renew the policy. However, their insurer refused to renew the policy due to the high risk of bushfires in the area.
Notice Provided by Your Insurer
The Insurance Contracts Act 1984 provides that an insurer must notify an insured customer in writing no later than 14 days before the expiration of their policy stating that their policy will expire if not renewed or negotiated in that time.
It is important to note that if the insurer did not provide this notice, even though you did not renew your policy, the policy is taken to continue as if you had renewed for the period of the original policy. So it is important to check first whether you have received this notice.
Special Circumstances
You might be able to show that there were special circumstances that made it impossible for you to renew your policy. These may include that you were overseas, or severely ill and in hospital.
Seeking Legal Advice
It is important to be fully aware of your insurance renewal date and ensure your insurer is keeping you accurately informed about the status of your policy.
If you would like further information regarding building insurance or general litigation or insurance advice, please do not hesitate to contact one of our experienced litigation solicitors on (02) 9963 9800 or via our contact form.
The team at Etheringtons would also like to extend our heartfelt sympathies to all those affected by the recent bushfires and commend the hard work and sacrifice by the fire fighters.
Jun 23, 2022 | Property Law
What is a Security?
Landlords typically ask for payment of ‘security’ when you first enter your lease. The security is an amount – usually 4 or more weeks’ rent – to cover any extra expenses should you break the terms of the lease agreement. For example, if the property is unreasonably dirty when you leave, cleaning may be paid for with the security. If you haven’t breached the lease agreement, your landlord will return the security amount to you at the end of the lease.
There are a few options that you can consider to provide security. Your landlord might only accept certain types of security based on the type of lease and the amount – it is prudent to check this when making your decision.
The three most common forms of security for leases are:
1. Security Deposit
A security deposit, or cash bond, is an amount that is paid directly. It is paid to your landlord or managing agent when you enter into a lease.
If your lease is a commercial lease, you can pay the security directly to your landlord or managing agent. They will hold it for the term of the lease. The exception is if your lease is a retail lease (a type of commercial lease used if you have a shop front). If your lease is a retail lease, your security must be provided to the NSW Retail Bond Scheme. They will hold it during the term of the lease. Your landlord will require your signature to claim the security from this scheme should you break the terms of the lease.
2. Bank Guarantee
A Bank Guarantee is an unconditional undertaking provided by a bank to your landlord to guarantee payment of an amount. In effect, the bank will pay the security amount to the landlord on your behalf if you either break the terms of the lease or have outstanding rent due.
The bank will usually secure this amount by:
- Cash deposit by yourself (if you are an existing customer); or
- Drawing on an existing security (such as the equity in a mortgage).
This can make it attractive to some tenants, as it doesn’t tie up cash in a security deposit.
3. Third Party Guarantee
A third party can guarantee payment under a lease. Your landlord would be able to recover money due to a breach of the lease from the third party. If the tenant is your company, the landlord may require the directors to guarantee the lease. If you are an individual tenant, a third party guarantee might not be accepted by your landlord as a form of security, as it can be costly to enforce payment if required.
Seek Legal Advice
It is important to seek legal advice before entering into a lease to determine which type of security is in your best interests. Therefore please get in touch if you have any questions about security for leases, or other property law matters.
Jun 20, 2022 | Business Law, Property Law
Below are five things you should do before signing a business lease.
1. Factor in rent payments
As a tenant, you are required to pay an amount – often referred to as your rent – for occupying the premises. This amount is usually paid to your landlord or managing agent each month. Calculate how this will affect your business so that you will be able to operate effectively whilst paying the rental amount. Look out for clauses in your lease that set out the yearly increase in the amount of rent payable, as well as the utilities you are required to pay for.
2. Obtain council approval
It is important to check if you require council approval to operate your business before entering into a lease. All properties in Sydney are zoned by the local council. The type of activities and zones will vary from council to council, and determine what sort of activities the property can be used for. Examples include:
- Residential zones;
- Commercial zones;
- and Industrial zones.
If you are entering into a lease, you need to ensure that your business is allowed to operate at that location. If you operate without council approval the council can stop your business from trading and order you to close your business.
3. Organise security
When entering into a lease, the landlord will usually require you to provide security for the lease. The amount of security is usually the equivalent to four or more weeks’ rent.
Types of security you could provide include:
- Bank guarantees;
- Bank cheques;
- Deposit bonds; or
- A guarantee by a third party.
It is important to ensure that you seek legal advice on the type and amount of security you provide, as you will be required to forfeit this amount if you break the terms of the lease. Read our article about the Three Most Common Forms of Security for Leases for a detailed explanation of security options.
4. Note the condition of the property
Most leases have a ‘make good’ clause, which requires you to return the premises to their original condition when the lease ends. You therefore need to ensure that you keep evidence of the condition of the property when you entered into a lease. If this is not done, the landlord can use the security provided you provided to ‘make good’.
This is a common area of dispute between landlords and tenants. It is therefore important to know your make good obligations.
5. Seek a legal opinion on the terms of the lease
The lease is prepared by your landlord and will likely be drafted in their favour. It is therefore crucial that you seek a solicitor’s advice on the terms of the lease. They can also assist with negotiations. This can bring a balance of power to the relationship between you and your landlord, and will ensure that you know what you are signing.
Leases can have three or five year terms and are difficult to terminate before their expiry, so it is important to know your obligations and if there are any unfavourable terms.
Conclusion
These are some of the issues that may arise when signing a business lease. Therefore it is important to seek legal advice if you are considering entering into a business lease. Please get in touch to discuss your lease.
Jun 18, 2022 | Property Law
A survey report is commonly requested during conveyancing. It shows any recent improvements on a parcel of land, the boundaries of the property, and the dimensions of the property (including aspects such as fences, garages, and pools). To put it simply, a survey report allows the purchaser to see issues that they could not observe from a physical inspection of the property.
What are the benefits of survey reports?
Issues involving fences are a common problem that a survey report can highlight. In theory, a fence is a physical representation of the outline and extent of your property. However, in practice, fences are not always accurate in defining the boundary of your property and may encroach on neighbouring properties. The survey report will highlight this and will make the purchaser aware if there is an encroachment from a fence onto or by a neighbouring property.
The survey report will also show if there are any easements between multiple properties that are not registered on the title. A common example of an easement would be a common driveway that is shared between two properties. One property may legally own the driveway, and the other has been granted an access easement over the driveway so they may use it as well. Easements pass with title, and thus it is necessary for any new purchasers to be aware if there is an easement on their property, or if their property has access to an easement. If there is no easement registered, then a transfer granting an easement may need to be lodged to ensure that the easement is recorded on the title. A surveyor will assist with this by preparing a plan to be lodged with the transfer granting an easement.
Another important part of a survey report is that it sets out the distances and measurements of improvements. This will allow a purchaser to see if the property is compliant with the local council’s regulations. If there is a possibility of non- compliance, then the purchaser can apply to the Council for a building certificate. This allows the Council to inspect the property and see if the improvements on the property meet its requirements. An up-to-date survey report is required to obtain a building certificate from the Council. Building certificates prevent the Council from making any orders relating to that improvement.
Get legal advice
These are common examples of issues that a survey report can expose. It enables a potential purchaser to become more aware about the nature of the property that they are buying and remember that an informed purchaser is always a good purchaser. To discuss your property matter, please contact Etheringtons Solicitors on 9963 9800 or via our contact form here.
Jun 17, 2022 | Family Law, Property Law
When parties separate, it is important to make sure that assets are protected before a family law property settlement is formalised. One way that matrimonial assets can be protected is through the lodgment of a caveat.
What is a caveat?
A caveat is a note that is recorded on the title of a property that protects any interest that the maker of the caveat may have on the property. This notice can be used as a way to delay a property transaction. If your ex-partner is the registered owner, a caveat can prevent them from adversely dealing with the property such as by selling, transferring, mortgaging or encumbering it until the court has determined whether you have an interest in the property. A person who lodges a caveat is known as the ‘caveator’.
When should a caveat be lodged?
A caveat may be lodged if a party has a caveatable interest in the property. This may occur if both parties to a relationship have an interest in the property but there is only one party’s name on the title of the property. This interest may be present if, for example, both parties contributed to paying the mortgage or have contributed to the property through other means throughout the relationship. This can include non-financial means such as property maintenance. If the person making these contributions does not have their name registered on the title of the property, then it is likely that they will not gain any benefit from that property, if it were to be sold by the proprietor.
How is a caveat lodged?
A caveat is lodged by way of a caveat form, which can be completed for electronic lodgment by a solicitor or conveyancer, or in hard copy with NSW Land Registry Services. Basic requirements of the caveat include the name and address of the person lodging the caveat, the name and address of the person who owns the property and the interest claimed by the person lodging the caveat. It is important to complete the caveat correctly the first time as once it is lodged as you cannot lodge another caveat on the same grounds unless you are granted leave by the court.
What happens after a caveat has been lodged?
Once a caveat is lodged NSW Land Registry Services will then examine the documentation, and if an interest is adequately made out, they will record the caveat against the title of the property. They will then serve notice to both the caveator and the registered proprietor of the property. Subsequently, the registered proprietor will be entitled to serve a lapsing notice on the caveator, requiring them to commence court proceedings immediately in order to establish their interest to that property. Failing to attend to this within fourteen (14) days will result in the caveat lapsing.
How do you remove a caveat?
A caveat can be removed by bringing an application to the Registrar of Titles. This application must be in writing, and have a supporting certificate signed by a legal practitioner. This application must also include a statement confirming that the caveator does not own the property and has no claim to it. If proceedings are not commenced by the caveator to protect their caveat, then the caveat will lapse after three months as a result of the application lodged with the Registrar. Once the caveat has lapsed the owner of the property can then lodge a form to formally remove the caveat.
Family law matters can get very complex. Get Legal Advice.
When drafting a caveat, it is important all proper protocols are followed to ensure that the caveat is permitted by the relevant authority.
Our experienced family lawyers are ready to assist you with your matter and take the stress out of your divorce or other family law matters. If you need any assistance please don’t hesitate to contact Etheringtons Family Lawyers in North Sydney via this form or on 02 9963 9800.
Jun 11, 2022 | Property Law, Strata Law
Keeping Pets in Strata Schemes – Can You Have Pets in an Apartment?
Have you ever been forced to choose between keeping your pet and living in a strata building? You are not alone. Australia has one of the highest household rates of pet ownership in the world, and yet more and more Australians are living in apartments and townhouses, where strata schemes may prohibit pets.
In this article, we explore the NSW strata laws in relation to keeping pets in a strata building. But first, a quick recap of strata schemes.
Strata Laws, By-Laws and Owners Corporation
If you live in an apartment or townhouse, then you are probably living in a strata scheme. The strata laws (Strata Schemes Management Act 2015 (NSW)) regulate an Owners Corporation’s rights and responsibilities. All the owners in a strata scheme make up the Owners Corporation. Owners Corporations can adopt the model by-laws that are set out in the Act, or they can amend them or write their own.
Can I Keep My Pet in a Strata Scheme?
This depends on the by-laws that apply to your strata scheme.
Previously, the model by-laws excluded pets unless the owner was given permission. The new strata laws amended the model by-law to be more pet-friendly, as it encourages schemes to allow pets rather than ban them altogether.
The new model by-law for pets includes two options for new schemes to choose from:
- Option A– An owner or occupier may keep a pet if they give the Owners Corporation written notice.
- Option B– An owner or occupier may keep a pet with the written approval of the Owners The Owners Corporation cannot unreasonably refuse the owner or occupier permission to keep their pet.
What if I am a tenant living in a strata scheme?
If you are either a prospective or current living in an already established strata scheme, you will still need permission from your landlord to keep a pet in your apartment or townhouse.
Seek Legal Advice
It is important to be fully aware of your obligations under your strata scheme in relation to retention of pet. If you would like further information regarding strata schemes or general strata law advice, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form here.
