What You Should Know About Zoning

When building you may be unfamiliar with many of the terms used in the construction arena but this should not become a cause for legal disputes that can impair your property ownership at a later date. One of the most important things to know about is zoning.

What is zoning?

Zoning tells you what your land is permitted to be used for. For example, some lands may be meant for agricultural use and they will be subject to zoning regulations that prevent the land from being used for the construction of a manufacturing unit.  So even before you buy your land, it is important for you to pay attention to the zoning regulations that are in force upon it. During construction, zoning laws come into the picture once again because there may be restrictions on what you can or cannot do.

The problem is that zoning laws may affect every aspect of the building process. If you have inherited the property, you may not have faced any zoning issues until now, when you embark on constructing here.

Keep in mind that you may not get permission to build a business space in a residential area. Even within residential areas, there may be restrictions on construction that apply thanks to zoning laws. For example, in heritage overlay zones, you may not get permission to build an additional floor upon an existing building of yours. This may not be a problem in any other residential area.  Checking about the zonal restrictions that apply to your home or land before you start planning your construction makes a lot of sense and saves you from potential legal trouble.

Rezoning

Yes, zoning laws can and are changed often. In particular, this happens when the authorities decide that a specific zoning law is no longer relevant to an area. Such decisions are taken during council zonal meetings. An amendment process is carried out and the zoning change is brought about if the necessary approvals are forthcoming. This makes it important for you to check with the most recent updates when you are trying to find out the zoning rules for your property.

Are you purchasing a toxic mould nightmare?

This blog is from AMC Ozone

So often we see these days innocent families purchasing their family homes are unaware of the potential hidden dangers of toxic mould, lurking behind the wall cavities, under floor cavities, roof cavities, air conditioning, ventilation not adequate, drainage issues the list goes on.

We scratch our heads sometimes just wondering how some of these properties passed a thorough building and pest inspection and not picked up & reported on hidden mould and mould odours if they are present.

Mould odour, the musty smell in the air is a sure indication to further investigate the property for potential mould problems, that is your first clue or (gut instint) as I say, trust your instinct you are generally right.

Second clue is the fresh paint job and fresh renovation covering up a hidden mould source?

I would like to share a story of a lovely family who at the start of the year purchased their dream home.  They wanted the right home so they hired a buyers agent to seek and find them just exactly that, they had trust that the company was professional and knew what they were doing when locating properties for purchase.

The home presented immacualately, it was in the right location, offered everything they were looking for and had a pool for the children, they could see themsevles raising their family and creating lifelong memories in their forever home.

So they negotiated to puchase the home, carried out a building and pest inspection with everything reporting back perfect, so guess what happens next they go unconditional now on the contract with settlement to take place.

Soon after they move in the family notice they are all not well, fatigue, headaches, irritated eyes, respiratory symptons and they just don’t seem to recover, this has gone on now for 3 months.  Then one night a super cell storms comes through and they have a leak in the roof and into a family room, they had a response water damage company attend immediately.  At this stage they suspected more maybe going on and that hidden mould could be present, so the investigation began, almost all of the walls on the lower level of the home were removed and part of the problems were located however not everything.  We were called by the customer as the now 3rd mould remediation company after a few weeks to further investigate, after the clients had spent thousands of $$$ on quality Air testing, Surface testing and ERMI testing, they needed answers to the can of worms they now feel they have opened and have now been living out of the home in temporary accomodation for the past 6 months.

At our inspection we located a timber floor covering the kitchen, dining and family room floor, we could smell the mould odour coming from this area and asked the clients if it has been checked and cleared for a hidden source, they advised us that nobody had mentioned anything about the floor to them and they didn’t think it was a problem.  We had the customer lift two long timbers and inspect under the floor with camera’s, there it was, black mould trapped under a 50ml subfloor.

Our clients are out of pocket ontop of their initial purchase price in excess of $230,000 in mould testing, builders, materials ,new kitchens, bathroom, ozone treatment & mould remediation, accomodation costs, doctors and medical expenses etc

We are aiming and hoping that our clients can celebrate Christmas at home and are able to have the home finished with the builders, now that all source mould areas have been located, removed, ozone treated and remediated.

So the importance of having a thorough pre purchase mould inspection by a certified firm prior to going unconditional on your sale could save you thousand of $$$$$ and most importantly you and your families health……….

A thorough mould investigation should include

  • Moisture readings in all rooms and wet areas,
  • Checking Drainage around the home
  • Checking  adequate Ventilation in bathrooms, subfloors etc
  • Inspection of air conditioning,
  • Test relative humidity, air temperature and dew point of the home
  • Including a written report with photo’s.

For more information regarding this blog, please contact AMC Ozone on 07 5559 0790 or see  http://www.amcozone.com.au/

Changes to smoke alarm laws

As of 1 January 2017, the Queensland laws regarding smoke alarms in residential properties changed.  These changes were prompted following the fatal house fire in Slacks Creek in 2011 where 11 people died, of which 10 were asleep at the time of the fire.  When you are asleep, your sense of smell also sleeps, which is why people can be overcome with the toxic smoke in their sleep.

Each house is now required to be fitted with photoelectric, interconnected smoke alarms in all bedrooms of the house as well as hallways or between areas containing bedrooms.

Research indicates that photoelectric, interconnected smoke alarms which are hard-wired into the home are the most effective in providing an early alert of a fire.    So if you are asleep, the alarm in your room will alert you of a fire regardless of what part of the house the fire is in.

Apart from new build or houses with significant renovations (which are required to adhere to the new laws with immediate effect), properties that are leased or sold must comply within five years, and all other houses must comply within 10 years.

The Queensland Fire and Emergency Services (QFES) has a free Safehome initiative program to assist in eliminating fire and safety hazards around the home.  Queenslanders can request a visit from local firefighter who will advise them of the best locations for smoke alarms and suggest other fire safety initiatives around the home. To request a Safehome visit call 13QGOV or visit https://www.qfes.qld.gov.au/community-safety/freeprograms/Pages/safehome.aspx

Having a fence dispute with your neighbour?

In Queensland, disputes about dividing fences are covered under ‘The Neighbourhood Disputes (Dividing Fences and Trees) Act of 2011. Disputes between neighbours regarding dividing fences are quite common, and they typically arise due to disagreements about fence repair, maintenance, or construction.

Who is responsible?

Owners of adjoining properties are equally responsible for all aspects of the fence that separates them. Both the owners share ownership of a fence if it is constructed exactly on the common boundary line between the properties. If a fence is not on the specified common line, then it technically belongs to the owner on whose land it is regardless of its purpose. Find out where the common boundary line exactly is before proceeding with construction. If a part of the fence is on your neighbour’s land, it belongs to your neighbour irrespective of who paid for it.

What are the basic rules for fence construction?

The first step is to write to your neighbour/s specifying the kind of fence you seek to construct, the area of the common boundary, and the estimated cost of construction along with the proposed method of building it. The written notice is known as a ‘notice to contribute for fencing work’. Your notice will need to contain a minimum of one written estimate of what the fence is likely to cost. You will also need to mention what proportion of the fence’s construction cost you would expect your neighbour to undertake. Under Queensland law, both the neighbours are each liable for half the cost of the fence that separates their adjacent property so, provided the fence lies directly on the dividing line between the two properties.

How do I settle a fence dispute?

If you have a dispute with your neighbour that both of you are unable to settle, you can opt to settle the dispute through mediation. The Department of Justice and Attorney-General allows residents to settle disputes through its Dispute Resolution Branch for free without involving any formal legal action.

If you and the other party are unable to agree on mediation or are still in dead lock despite mediation, you can either apply to the Queensland Magistrates Court or the Queensland Civil and Administrative Tribunal. You need to have served a ‘notice to fence’ in order to apply to the Magistrates Court or QCAT for dispute resolution

Legal requirements for warning signs near pools

 

Having a pool is a great way to improve the resale value of a residential building. In commercial establishments like hotels, as well, pools are a simple and effective way to appeal to clients. In buildings that have pools, safety requirements should be given top priority to ensure that accidents can be prevented at all costs. The law has some stringent regulations in this regard and failing to follow these can lead to some drastic repercussions. The rigorous stance on pool safety in Queensland comes as no surprise given that about a quarter of deaths among young children here occur from drowning. Also, about half of the fatalities among children in the under- 5 age group happen in residential pools.  It is the responsibility of every pool owner to take every possible measure to prevent untoward events like these.

Apart from fencing regulations, the law requires that CPR signs be placed near the pool by the pool owner. The pool safety regulations with respect to this are as follows:

  • The CPR sign needs to be affixed to the pool’s safety barrier or displayed close by so that people using the pool can clearly and easily see it
  • The sign must be weatherproof so that wind, rain or sunshine do not erase the lettering or break down the sign
  • The sign board must, at minimum, be square with a minimum of 300 millimetres long sides.
  • It must clearly list out the steps to be taken in case a pool accident occurs- for example, how to provide first aid, whom to call etc.

For pools that are under construction, pool safety warning signs need to be placed on the road frontage, within a distance of 1.5 metres.  Also, the following criteria must be met:

  • It must clearly state that a swimming pool is under construction on the land
  • Mention must be made of the danger posed to children who may wander onto the land
  • The sign must be highly visible from the road, positioned a minimum of 300 millimetres above ground and have clear, easy to read lettering that is at least 50 millimetres high
  • The warning sign must be weather proof so that there is no possibility of it being erased or broken down by winds or rains or sun

Understanding positive and negative easements

Easements make it easy for property owners to enjoy the full benefit of their land even if it is, in any way, dependent on another property. The simplest example of such a situation is a piece of land owned by Landlord Avery that can be accessed only by passing through another piece of land that belongs to Landlord Brian. In this case, an easement gives Landlord Avery access to Brian’s land for the purpose of using it to navigate to his own property. However, Avery does not have any legal possession over Brian’s land, even the part that he is allowed to use to get to his own house. This is why easements are also known as non- possessory interests in the land.

In this example, Avery’s land is getting some benefit from the easement and this makes it the Dominant Tenement. Brian’s land, which is serving a purpose for Avery, is known as the Servient Tenement.

Positive and Negative Easements

A positive easement is when the Dominant Tenant CAN do something in the land that is the subject of the easement. In our example, Landlord Avery CAN use a part of Brian’s land to access his own house. Another good example of a Positive Easement, also known as an Affirmative easement, is the legal right to install power lines or sewage lines on a property that is not actually owned by the landlord (Avery) but by the Servient Tenant (Brian).

In contrast, Negative Easements allow the Dominant Tenant (Avery, in the example) to restrict the Servient Tenant (Brian) from using his land for specific things. These are uses that the Servient Tenant may generally have all rights to use the land for, if the easement did not exist.  For example, Brian may be prevented from building a huge wall on the land that prevents Avery from using the access way through the land to his property. Or Avery may prevent Brian from building a high structure that blocks the light and air to his, Avery’s property. Despite the fact that the land actually belongs to Brian, Avery does have some control over what CANNOT be done with it thanks to the easement.

Reasons to Set Up a Trust to Buy Your Property

When you purchase a property, you can buy it in your personal name, a company name or even a trust.  The trust must be set up before hand and have a trustee to manage the trust (which could be yourself or a company you own).  Now, why should you undertake a complex procedure like this to buy a property? Well, there are several reasons why savvy investors do this and here are some of them that can help you decide whether you too should follow this strategy.

Asset protection

This is one of the top reasons why people opt for a trust to buy and hold their properties. The assets held by the trust are safe even if you have to declare personal bankruptcy. This means that your creditors can create a lien on your personal assets but not on those held through the trust. The property cannot be taken over in lieu of your debts by any creditor. Of course, there are conditions that apply, namely that the property should have been purchased via the trust a specific number of years before your bankruptcy situation. If you want to make sure that the property is protected for your future generations, this advantage makes a trust a good choice for you.

Fewer complexities in transfer

A trust makes it easy for you to ensure that the property passes on to your heirs quickly and without legal complexities in the event of your death. This is one good reason to consider if you expect someone to challenge the claim of your heirs to your assets in particular. Buying and holding your property through the trust makes your stance clear on what you want to be done with the property, and the procedure for transfer of rights is clear cut too with a trust.

Tax benefits

Of course, the tax benefits are a big plus point for buying and holding property via a trust. It may be possible to avoid a big chunk of taxes including capital gains and stamp duty when the property passes to someone within your family, provided it is held in a trust. This gives a significant financial benefit to your heirs.

Please note that it is important to decide on the buying entity before signing a contract or there could be potential implications, such as stamp duty issues. We also strongly recommend that you seek the advice of an accountant regarding tax and other financial benefits regarding trusts.

If you want more information or help with buying a property via a trust, approach a professional law firm in Queensland, Australia.

 

The benefits of buying a property “Off the Plan”

“Off the plan” properties are those on which titles have not yet been obtained.  It could be that constructions has not yet begun, or that the development needs final certifications or to go the the Council sealing process or title registration. In other words, it is a “plan” on a property offered to potential buyers with the promise of developing/finalising it in the near future. Such properties are attractive when the locality is an infrastructural goldmine with entities such as an airport, a university, schools, or highways in their proximity.

Here are five potential advantages of buying an off the plan property:

  1. Tax savings – If the property you’re eyeing is merely an investment, be prepared to save a lot of dollars in taxes. The depreciation on furniture, fixings, and the building itself will be lower compared to existing buildings.
  2. Lower maintenance – Existing properties need constant maintenance and repairs. If building a home from scratch, that too for yourself, you will ensure it is well-built without needing expensive repairs and additional maintenance costs.
  3. Lower power consumption (and lower bills) – Australian Building Codes require appliances in your “off the plan” home be energy efficient. It means potential savings on all your utilities including gas, electricity, and water. You could be saving money and the environment at the same time. So, it’s a win-win.
  4. Invest now, pay later – You will be paying only 10 percent of the deposit when signing the contract. The rest is paid only after construction is completed. You have enough time to organise your finances for a comfortable pay-off later. You can also use the time to purchase essentials for your future home.
  5. Your choice of living – When buying a property that isn’t yet built you can add your personal touch (subject to the seller agreeing to this) by choosing the colour, tiles, fixtures, and furniture you want. Making it into a home that you want to come to everyday is possible. Personalising an existing building is difficult and can cost you an arm and a leg.

These benefits aren’t without risks. Securing a good off the plan property in Queensland depends largely on the reputation of the developer. Ensure you contact a reliable real estate agent or, if purchasing it yourself, do your research thoroughly. Inspect all paperwork, run it through seasoned sources including your solicitor, and sign the dotted line only when you are convinced of the development’s fulfilment.

The division of property following divorce or separation

Some key points about property settlement after divorce

Separation is not easy on either party or on the dependants and other family members. The question of who gets what after the divorce only serves to complicate the issue further, if you are not fully aware of what the law has to say in the matter. The complications can be quite enormous if you jointly hold property of significant value in various locations. The Family Law Act covers these aspects and it can be enforced by local courts, the Family Court of Australia or the Federal Court. Take a quick look at some key points to know about how property settlement after divorce is treated under Australian law.

You can reach an agreement with your partner about property settlement

The best way to go about dividing the property between the two of you is to discuss the issue and come to an agreement between you both. If you are unable to reach agreement, you may need to engage lawyers to arrive at an acceptable division strategy. Once you have finalised the division, this can be put into writing and consent orders can be sought. On receipt of the legal consent, your property division agreement is legally binding on both of you and you can proceed to make the settlement without further complications.

When you cannot agree on a settlement strategy

In such a situation, you will need apply to the relevant court for legal assistance. Typically, the Federal Court or the Family Court handles these applications. The procedure involves a hearing before the judge, following which the court decides how to divide the property. There are four steps in the property settlement process:

  • All the assets and liabilities (both cash and non- cash) belonging to either partner are identified and valued. Experts may be called in, if necessary, to ensure that a fair and accurate valuation is made.
  • The contribution of either partner in the relationship is measured. It is not restricted to merely cash contributions, but also includes the effort and time of a partner invested in parenting or in taking care of the home. The duration of the relationship, the presence of dependent family members (such as children) and many other factors play a key role in helping the court make a fair assessment of contributions.
  • Evaluation of the future needs of either partner is the third step and many aspects are factored in here as well, such as the age of both partners, the earnings and earning potential, standard of living, and the person who is more qualified to care for a child from the relationship.
  • The final and critical step is an objective look at whether the proposed property division is fair and just to both parties involved.

Icon Legal can assist you further advice or assistance in relation to the division of property or any other family law matter.

Buyer’s contract obligations when purchasing a property

There are a number of obligations that are imposed on the buyer of a property, some having immediate effect once the contract is fully signed.  This article only deals with some of the main obligations contained in the standard terms of REIQ or ADL contracts (which are normally used by real estate agents).

The first important concept that a buyer should understand is that Queensland contracts have strict deadlines, which fall at 5pm on the due date.  This is known as time being of the essence.  Once the 5pm deadline passes (even by 30 seconds), you are potentially in default of the contract which could give the seller rights against you.

Another important obligation to be aware of is that the risk of the property passes to the buyer at 5pm on the first business day after the contract date.  Therefore, as a buyer it is strongly recommended that you insure the property immediately after entering into the contract.  Often your financier will also require a copy of this insurance prior to settlement.

If a notice or order from an authority or court is made after the contract date against the property, you as the buyer are required to comply with it.  The seller may do the work if required to be completed prior to settlement, but you will be required to pay the reasonable costs for this work at settlement.

You must ensure that you pay initial deposit and balance deposit on time or you will be in default under the contract and the seller could pursue you for this debt. The seller may also impose interest on the late monies at a rate set by the Queensland Law Society (9.45% as of January 2016).

If the contract is subject to finance and/or a building and pest inspection, you must advise the seller of approval or satisfaction by the due date.  If you miss the strict 5pm deadline on the due date, the seller will have a right to terminate the contract.

If the property is tenanted, you should decide on a property manager.  You do not need to retain the current property manager.  You should arrange for whichever property manager you want to commence managing the property from the day after settlement.

If the property has a pool but there is no pool safety certificate compliance or exemption certificate, the buyer must arrange for an inspection at the buyer’s cost by a due date prescribed in the contract.  Normally a body corporate would attend to any pool certificate requirements if it is shared pool.  We recommend obtaining more in depth advice on this topic.

If you are a foreign buyer under the Foreign Acquisitions and Takeovers Act 1975 (Cth), you must ensure that you have either obtained consent to purchase the property from the treasurer or you are not required to obtain consent, prior to entering into the contract.

You are required to pay the stamp duty payable on the contract.  Your solicitor can advise you of the amount and whether you are eligible for an exemption or concession.

This article does not cover all contracts and not all obligations.  If you are intending to purchase a property, we recommend that you obtain advice on the contract prior to entering into it.  Icon Legal can assist you with this.