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.

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.

Missing and Damaged Fixtures and Fittings

The standard contract of sale includes terms that specify that a property must be delivered to the buyer on the day of settlement in the same condition it was in on the day the contract was signed (save for ordinary wear and tear).  As a buyer this means you should do your due diligence to ensure that this is the case for the property you purchase.

A building and pest inspection, which is a normal part of the conveyancing process, will identify any major structural defects to the house, but you can take some extra steps to ensure what you think you are buying is what you actually receive.

A good tip is to conduct an inspection of the property before you sign the contract and check in careful detail exactly what condition the house is in.  There’s no harm in taking a camera and shooting lots of pictures.  Look for any holes in walls, missing pavers, cracks and especially chattels.  Chattels are the permanent fixtures of the house and should remain a part of the house as ownership changes.  Be sure to clarify exactly what fixtures are to be included with the property, such as a dishwasher, light fittings, blinds and TV aerials.

A lawyer can prepare a special condition to be inserted into the contract detailing exactly what fixtures are included in the sale if you’re in any doubt.

As part of your inspection, ensure that any fixtures are in good working order; try flicking on all the lights, turning on the taps, or starting the dishwasher quickly.  If you find something isn’t working then you should notify the seller’s agent straight away and don’t sign the contract until it’s fixed or you’ve spoken to your lawyer.

Once you’ve conducted this inspection and are satisfied with all the results and any other issues are sorted out, you can sign the contract.  A few days prior to settlement, attend the property again to conduct a pre-settlement inspection.  This is your chance to check over the property before the sale is finalised to ensure everything is as you thought it would be.

Go through the property again as you did before and check that no new damage has occurred and that none of the fixtures are missing.  Remember to check everything is still in good working order.  If you find any issues then raise them with your lawyer straight away.  Usually pre-settlement negotiations by your lawyer can sort a problem out.  If not your lawyer can advise you on your rights, any possible legal action that can be taken after settlement has occurred, or if settlement needs to be delayed.

It’s all about conducting due diligence and liaising with your lawyer to ensure that nothing creeps up on you by the time settlement comes around.

Call us at Icon Legal on (07) 3399 6006 if you would like advice about purchasing a property.

Unapproved Alterations When Purchasing Property

The old saying of ‘buyer beware’ still rings true when purchasing a house in Queensland.  This is especially important when it comes to unapproved alterations or extensions to a property.

When you’re considering buying a house it is important to be aware of where the risks and responsibilities of the purchase process lie at any given time, as they often shift as the process moves forward. Unapproved alterations and extensions to a property are one these shifting responsibilities.

Prior to signing the contract of sale, it is the responsibility of the seller to ensure that any alterations to the property have the required Council approval.  If no notice has been issued by the Council in relation to the work, then there is no requirement that the seller comply with the required approvals prior to entering into the contract.   Further, the seller is not legally obliged to disclose this material information to a buyer.

Former Queensland Fair Trading Minister Peter Lawlor described the situation as follows:

While a real estate agent needs to verify the material facts when selling a property and encourage the seller to disclose all information, there is no obligation or legal requirement for the agent or seller to conduct building and pest inspections, or conduct council approval surveys prior to listing a property for sale.”

Once the contract is signed, the responsibility for these approvals shifts to you; the buyer, who is left with having to deal with the unapproved structures.

You may think that you are protected under the pest and building inspection clause and you will be able to terminate the contract on these grounds.  This is not the case in Queensland.  These inspections are limited to looking at the structural integrity of the house as opposed to whether it has the required Council approvals.

While standard practice in a transaction is to conduct a building and pest inspection as part of the purchase process, an inspection of Council building approvals is not part of the standard process.  Regardless, once the contract has been entered into, any unapproved structures become the buyer’s issue if no notice has already been issued.  So unless the Council has previously issued a notice to the seller about the alteration, then the seller is under no obligation to make any disclosure to the buyer or to comply with the notice.  Hence the term ‘buyer beware’.

So what should you do?

If you have concerns that the property may have been altered or an extension added then it may be worthwhile seeking legal advice prior to signing the contract.  Don’t fall into the trap of becoming liable for any future notices in relation to the property.  This notice could include a requirement to apply for Council approval, carry out of any rectification works, or potentially to demolish the unapproved alteration to the property.

A lawyer can draft a special condition for the contract, which will make the purchase subject to the outcome of relevant searches; giving you a right of termination should any unapproved alterations or extensions be found.

Call us at Icon Legal on (07) 3399 6006 if you would like advice about purchasing a property.

FloodWise Property Report

The 2011 flood devastated many of Brisbane’s lower lying suburbs and had serious repercussions for the city’s property market.  Many buyers did not want to dip their toe (pardon the pun) into the market and purchase a property anywhere near the river.

While the flooding of 2011 did affect the property market, it has definitely bounced back.  After another year of heavy rain failed to result in any flooding (due to better flood mitigation procedures at the Wivenhoe Dam), buyers are more willing to purchase in the suburbs that were previously affected.

The Brisbane City Council offers a simple tool that aims to allay a buyer’s fear about buying a property (due to the fear of it flooding). To help restore buyer confidence the Brisbane City Council offers a free FloodWise Property Report, which is available as a tool on their website.

The report contains information of the flood height of 2011and various flood events that may occur and the likelihood of it.  It also shows the ground levels of the property and the required minimum habitable floor height. This brief report can provide valuable information to assist you in making a more informed decision of the flooding risks.

Visit flood.brisbane.qld.gov.au/floodwise_property_report to download a report on the property you may be interested in purchasing. It only takes a few minutes and the report is instantly available for download.

Whilst this report may give you an indication of how the property may be affected by flooding, further searches will provide more information about the property.   If you are concerned about flooding of the property, we recommend that you discuss this with your lawyer.

Call us at Icon Legal on (07) 3399 6006 if you would like advice about purchasing a property.

Why You Should be Wary of Rebates when Purchasing Queensland Property

Rebates can sometimes be offered as an inducement for a buyer to enter into a contract to purchase a property. They can commonly be offered by developers. Care must be taken as this can be seen as a misrepresentation of the purchase price and possibly an attempt to defraud a financier or the ATO.

The main issue is not the rebate itself, but whether it has been disclosed correctly. That is, the ‘true’ purchase price must be divulged.

There is a further issue in that the information contained in the transfer documents may distort the data kept on various land databases, thereby spoiling the integrity of that information. These databases store information that is widely available and may mislead valuers and/or buyers in the future.

We strongly recommend that a solicitor review any contract containing a rebate clause prior to entering into it.