Apr 23, 2022 | Property Law
For a long time, the ‘Great Australian Dream’ has been to own property. It is usually the largest asset you will own and provides you with a sense of freedom. However, this could be more akin to a pipe dream for some people due to the huge price tags associated with home ownership. If this is you, you may think an off-the-Plan (“OTP”) property may be the alternative you are looking for. However, OTPs can carry some significant and inherent risks.
What Does Buying off-the-Plan Mean?
When you buy off-the-plan you commit to buying a property before it has been built. In general, prices are cheaper than buying an existing unit. One other benefit is that you will move into a brand new property. Most developers will have mock-up displays or presentations to show you what it will look like once built. However, you can’t be sure exactly what you’ll end up with.
Flexible Contracts
The interests of developers can be quite different to your interests as a buyer. Developers want as much freedom as possible in the terms and conditions of the contract. This is so they can make changes to the plans later. For example, their display model of the building might have parking allocated in a certain way. If this is not specified in the contract’s terms and conditions they can change this at a later date.
Restrictions of Use
Off-the-plan properties often come with restrictions on their appearance (covenants) and use (easements). For example, the external colours might be mandated and cannot be changed even after the property is completed. Make sure you check the contract for these restrictions.
Risk of Delays
When looking at buying off-the-plan you will be given an estimated time of completion. This could change due to unexpected circumstances. For example, suppliers could be out of stock or renting equipment delayed. Prepare for delays; make sure you have somewhere to live until your property is complete.
Risk of Non-Completion
With OTPs there is also a risk that the property will not be completed and your contract becomes terminated. Lenders such as banks might provide developers with a preliminary loan approval before construction starts. The loan is likely to have conditions, such as selling a minimum number of units. If the developers can’t meet the conditions the loan won’t be granted and construction can’t continue. There are several reasons a contract might be terminated, which you should discuss with a solicitor.
Get legal advice
If you are looking to purchase an off-the-plan apartment we recommend you discuss the risks with a solicitor. We can provide advice and help negotiate the terms of the contract in your favour. For more information, please contact us on (02) 9963 9800 or send a message via our contact form.
Apr 22, 2022 | Property Law
Conveyancing is the process of transferring legal title of real estate from one person to another. The conveyancing process is designed to ensure that the buyer obtains good and marketable title to the property together with all the rights that run with the property, and is notified of any restrictions or rights in advance of their purchase.
For most people, buying a property is the most significant transaction they will enter into in their lifetime, both from an emotional and financial point of view. There can be significant consequences if it is not done properly.
Why do searches and enquiries?
When buying a property, there are some statutory obligations on the seller to make certain disclosures to the buyer about the property before the contract is signed.
However, there is no obligation on the seller to tell you everything about the defects in a property and many enquiries about the property are not done until after the contract is signed or becomes unconditional.
The onus is on the buyer to undertake searches and enquiries to satisfy itself in relation to the property. The old saying caveat emptor, or, “Buyer Beware” applies, as the contract may not protect against adverse search results in all circumstances. Searches will help you to find out if the property is affected by any current or known future plans or licenses issued by government such as inclusion on heritage listing or environmental management registers.
Mortgages or encumbrances registered on title
A review of the searches attached to the contract is necessary to confirm that the seller actually owns the property and has the right to sell it to you.
Searches will also provide information about any encumbrances on the title. Examples include:
- Mortgages registered against the property: mortgages must be removed from the title before settlement.
- Easements to the local council or utility company who may have the right to use a portion of your property (possibly above or below ground) for things such as sewage, electricity, telephones or gas.
- Restrictive covenants which affect how the property can be used: for example, a neighbourhood may have building size and design requirements.
Special Conditions – avoiding conveyancing traps
Your lawyer can include special conditions in the contract, before it is signed, to deal with specific issues which may arise from searches but that are not covered by the standard form contract.
A special condition can provide a buyer with additional protection or rights in relation to adverse search results. For example the contract could be made subject to satisfactory searches, work to be completed or could oblige the seller to compensate the buyer as a result of adverse search results.
Where the contract has already been signed there is generally no opportunity to add special conditions. In some limited circumstances it may be possible to negotiate amendments to the terms of the contract if there is a cooling off period or while the contract is still conditional.
Examples of useful special conditions
If a buyer signs a standard contract unaware of building or pest issues with the property there may be no protection if they subsequently find out that, for example, the foundations are sinking or the property is infested with termites. If a building and pest inspection has been carried out before the contract is entered into and problems are discovered then there may be a possibility of addressing those problems in the contract.
If you are buying a property that requires repairs or maintenance then you may wish to make the settlement conditional upon the completion of specified work and a satisfactory inspection before you are ready to settle the purchase.
If there is a special condition in the contract a buyer may be able to delay or refuse to settle if the issues are not rectified.
Get legal advice
We can help you navigate the process to ensure that you are able to obtain good title on any prospective property and that there are no unknown restrictions on the property before you buy. If you need assistance with a conveyancing matter (either buying or selling) or would like more information please call us on (02) 9963 9800 or via our contact form.
Apr 21, 2022 | Property Law
When you purchase off-the-plan you are buying an apartment before it is built. Off-the-plan properties come with significant risks that you should consider before committing to buy. One of these risks is the sunset clause.
Off-the-plan contracts specify the time by which the project must be completed. This is called the sunset clause or sunset date. If the project is not completed by the sunset date, the contract can be rescinded and your deposit returned to you. In the event of delays outside of the developers’ control – such as weather conditions, strikes and issues with council – the sunset clause can be extended.
What is the Purpose of a Sunset Clause?
A sunset clause provides a timeframe for when the project must be completed. The ability to extend the sunset clause provides developers with more time to deal with any issue that arises beyond their control. As a result, off- the-plan contracts are usually completed before the sunset clause.
What are the Risks of a Sunset Clause?
As the sunset date is typically a few years after the exchange of contracts, the price of the property is locked in. This is irrespective of any changes in the market. This means that if you buy a property for $300,000, by the time of completion it could be worth $500,000 due to an increase in property values. Upon completion, you could end up with a property worth much more than you paid for.
Although this can be a good thing, it presents a risk of developers getting greedy. Developers need your initial deposit for loan approval and to start construction, but once complete they know they can sell the apartment for a higher price than originally agreed upon some developers try to rescind (cancel) contracts, return your deposit and then re-sell the apartment at current market prices. While this is uncommon there are still come instances of this occurring. Effectively, they have taken advantage of you as property values rise.
Legislation on Sunset Clauses
This issue has led to new legislative changes for sunset clauses. Now, a developer that wants to rescind your contract on the sunset clause must have your permission to do so. This means that developers need to provide an explanation for why they are seeking rescission. They need to specify why completion of the project cannot be fulfilled as per the sunset clause.
If you do not agree with the developer’s reasons the developer must obtain an order from the Supreme Court to rescind the contract. This precaution is designed to protect you when buying an off-the-plan property.
Seek legal advice
If you are interested in purchasing an off-the-plan property it is important that you seek the advice of a solicitor. We can advise you of your rights and obligations and the protection provided to you. This is by the contract itself and the law. Please contact Etheringtons Solicitors if you have any questions by using the contact form or calling us on (02) 9963 9800.
Apr 18, 2022 | Property Law
Homeowners are required to attach a certificate of compliance or non-compliance to the contract of sale when they sell their property. The owner of a property must register their swimming pool and/or spa on the NSW Swimming Pool Register. In this blog we review how to register a swimming pool and what the requirements are.
How Do You Register a Swimming Pool?
Swimming pool registration is a straightforward process. It is performed online using the NSW Swimming Pool Register website. A Registration Certificate is obtained after entering the required details about the pool or spa.
How Do You Obtain a Certificate of Compliance?
You can seek a Certificate of Compliance from either a private certifier or from a local council. This involves the certifier or local authority inspecting the barrier around a pool or spa. If it is compliant with the legislative regulations, you will receive a Certificate of Compliance which is valid for three years. If you are selling the property or leasing it out, you will need the certificates. The Registration Certificate and the Certificate of Compliance must be attached to the sale contract or to the residential tenancy agreement. This does not apply to strata properties (with more than two lots), or properties in a community scheme.
What Is a Certificate of Non-Compliance?
If the pool or spa does not abide by the regulations, the certifier or local authority will provide a Certificate of Non- Compliance. They will also provide a written notice of why the pool or spa is non-compliant and the steps that can be taken to ensure remedy this. A Certificate of Non-Compliance can be attached to a contract for sale or residential tenancy agreement in lieu of a Certificate of Compliance. It can only be attached if the notice received by the inspector does not deem the pool to be a hazard to public safety. If it is deemed to be a hazard the seller will have to rectify the problem.
If a Certificate of Non-Compliance is attached the responsibility will transfer to the purchaser, who must bring the pool or spa into compliance within 90 days of settlement. Unlike the Certificate of Compliance, the Certificate of Non-Compliance is only valid for one (1) year; if it lapses the owner will have to apply for a new certificate.
Purchasing a Property with a Swimming Pool
When purchasing a property with a swimming pool it is important for your solicitor to check the compliance status of the pool. They can check if the pool registration is missing, or if it is non-compliant. Your solicitor will do this by requesting the notice provided by the certifier or the council from the seller’s solicitor. This can be useful in negotiating the price of the property, and it will inform you as to what steps you need to perform post- settlement, if you need to bring the pool within the regulations.
Seek Legal Advice
Should you require any assistance in relation to swimming pool registration or compliance, get in touch with our expert team by calling us on (02) 9963 9800 or via our contact page.
Apr 13, 2022 | Property Law
Heritage-listed homes offer a unique glimpse into Australian history and are often filled with beauty and character. However, despite the antiquity and romantic features of these homes being a point of value for some, it is important that current or potential owners are aware of the legal hurdles involved when owning or selling a heritage-listed property.
What is Heritage Protection?
If a home is listed on the State Heritage Register, it is recognized as being of historical significance to the state of NSW. Many council areas in Sydney, such as Ku-ring-gai and Hunters Hill, are abundant with heritage listed homes owing to their architectural or cultural value. To find out whether your home or homes near you are heritage listed, you can search the NSW Heritage database here.
A Heritage Conservation Area (HCA) protects an entire area, group of buildings or streetscape with values and characteristics that give it a distinct historical identity. These can include the original purpose or use of the buildings, integrity of the building materials or subdivision patterns. For example ‘The Spot’ in Randwick is a HCA due to its strong sense of identity dating back to its origins as “Irishtown” within the small commercial hub, featuring buildings such as the Ritz Theatre.
The Benefits of Heritage Protection
The historical significance and notable architectural structure, which includes unique details and craftsmanship, is what draws many buyers to heritage-listed homes. Depending on the type of home, people may also pay more for the particular, protected style. For example, devotees of modernist classics and Victorian architecture actively pursue these homes and are willing to pay a high price.
Heritage listed property owners can take assurance in the knowledge that a large apartment block or multi-story carpark will not be freely permitted to be built next door, as the neighbourhood and privacy of these property owners are protected. Further, to compensate for some of the maintenance costs involved with heritage properties, homeowners may be eligible for reduced rates for council and land tax. This requires an application through Heritage NSW.
Renovating a Heritage-Listed Property
Despite their sound structural integrity and historical value, heritage protection and HCAs can be problematic if an owner wishes to renovate their property. Heritage protection can be restrictive and owners find themselves facing limitations that wouldn’t exist if their property wasn’t listed. Restrictions contained in the Heritage Act 1977 (NSW) include the following provisions:
You can make a heritage-listed property ‘liveable’ by making installations or repairs: You are allowed to make installations or similar adjustments to make the home suitable for modern living, provided that they do not detract from the property’s original appearance. Heritage property owners are obligated to ensure that the Minimum Standards of Maintenance and Repair are being met. Other changes will require an Integrated Development Application to be lodged with the local council or directly with the Heritage Council. Generally, upon lodging an application home owners may install contemporary kitchens or bathrooms but the structure of the home and the street façade must be preserved.
Emergency Fund: Older homes do come with the risk of hidden structural damages or other unpleasant discoveries. It is recommended that you keep an emergency maintenance fund in order to make necessary repairs. Home owners can apply for Emergency Works Grants through Heritage NSW for an amount up to $10 000 to address damage incurred during a natural disaster or emergency event, or for work directly related to a heritage benefit.
Valuing Heritage-Listed Properties
Owing to the above restrictions/provisions, there is a concern that a heritage listing will result in lower land values, as potential buyers will not be able to extend or modify their home. Heritage listings can also prevent existing home owners from making alterations or renovations that may markedly increase the value of the property.
Heritage listed homes can often attract more expensive insurance premiums due to the higher risk and cost of restoration and repair. Specialist insurance policies may be required to insure your home is not underinsured.
It is also important to note that a heritage valuation is based on the existing use of the land rather than its zoned development potential. For example, a house would be valued as a dwelling house, even if that property is located in a commercial or residential flat zone. However, a Productivity Commission study recently found that a heritage listing in the North Shore of Sydney can add 12% to a home’s market value.
Contact Etheringtons Solicitors
It is crucial to properly assess the potential benefits and consequences of a heritage listed property before making a financial commitment. As a property owner it is important that you are well informed about factors that may affect the value or structure of your home. At Etheringtons, we can assist you with your property law needs to ensure the best outcome for you and your family. Should you have any further questions, please do not hesitate to call (02) 9963 9800 or via our contact form.
Apr 4, 2022 | Property Law
New infrastructure in Sydney is continually being developed to keep up with the demands of a growing population. To build such infrastructure, a public authority – such as the New South Wales government or a local council – may compulsorily acquire some or all of your property to create the space necessary for new construction. Some recent examples include the WestConnex project and the Victoria Cross Metro Station in North Sydney.
Why should I get legal representation?
Compulsory acquisitions can leave property owners feeling frustrated and helpless, and it can be an upsetting and confusing time. However, it is important to know you may have more power than you may think. An experienced solicitor can work with you to ensure you obtain the best compensation for your loss of property. A solicitor’s reasonable legal fees for assisting you in the acquisition process will be covered by the acquiring authority so you will have peace of mind knowing that you will not have to pay for the work performed in receiving advice.
A solicitor can help you through:
1. Finding out what your property is really worth
A solicitor will help you engage experts who can accurately calculate your property’s financial value. The public authority acquiring your land will retain a valuer to estimate what they believe your property is worth, but as this is often skewed towards the acquiring authority, it may not reflect your property’s true worth. It is important that you engage a solicitor who can help you ascertain a value that is more favourable to you.
2. Ensuring you receive the maximum payment
There are a number of costs associated with the compulsory acquisition of your property including conveyancing fees, a real estate agents’ commission (for the purchase of a new property), removalist costs and legal fees (for the acquisition of your property). The purpose of the compensation provided by the acquiring authority is to leave you in the same financial position you would have been in but for the acquisition. A solicitor will ensure that compensation includes the hidden costs of acquisition that are often unrecovered.
3. Negotiating on your behalf
A solicitor can help you to prepare for negotiations with the acquiring authority. Even though the acquiring authority will send you an initial offer, your solicitor can assist you with your negotiations to ensure that you receive a fair dollar amount for the acquisition of your property. Your solicitor will act on your behalf throughout the discussions and negotiations with the acquiring authority to ensure you achieve the best result.
4. Putting together your claim
Your solicitor can assist you with putting together all aspects of your claim to present to the acquiring authority. They can also ensure that you will present a counter offer which is well-supported and well-documented so that you have the best chance of achieving a fair result.
5. Guiding you through the process
One of the many benefits of engaging a solicitor through this process is that they will support you every step of the way and you can feel assured that you are in capable hands.
Etheringtons Solicitors has acted in numerous compulsory acquisitions cases for our clients, including for properties acquired for the Victoria Cross Metro Station in North Sydney, Martin Place and Pitt Street Metro Stations in Sydney CBD and Waterloo Metro Station in Waterloo. If you have been or think you will be affected by a compulsory acquisition and would like assistance in ensuring you are provided fair compensation, please contact us on 9963 9800 or via our contact page here.
