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New regulations for Airbnb announced

June 14, 2018June 28, 2018by baron + associatesLeave a comment

The NSW Government has announced its plan to ban apartment owners from renting out their properties on Airbnb if they do not live there themselves. The current strata laws blocking Owners Corporations from regulating Airbnb will be replaced, giving Owners Corporations limited power to pass by-laws that stop short-term letting where the owner does not actually live in the unit. The plan targets investors who are purchasing apartments in order to lease them on Airbnb, but allows owner-occupiers to continue letting up to 180 nights a year.

In conjunction with the new legislation, the government will develop a mandatory code of conduct, and guests and hosts who commit two serious breaches of the code within two years could be banned from all short-term holiday platforms.

New changes to the GST to commence

June 14, 2018June 28, 2018by baron + associatesLeave a comment

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Changes to the GST announced in the 2017 Budget are due to commence on July 1 and will change the way purchasers of new residential property pay their goods and service tax. The new rules will require purchasers to pay any applicable GST on the sale of the property directly to the Australian Tax Office during settlement, rather than as included in the sale price.

To get ready for the changes developers and vendors should review their existing contracts to make sure their GST clauses are in line with the new legislation.

Owners Corporations cannot restrict access to a car park

June 14, 2018June 28, 2018by baron + associatesLeave a comment

In the recent case of EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464, the Supreme Court has held that an Owners Corporation must allow reasonable entry into the common property by owners to park in their car spaces. In this case, the owner of a single car space underneath a strata building protested the installation of a chain along the boundary between his space and common property. He argued that access to the already narrow space was made near impossible with the chain in place.

Despite his protests to the chain, the Owners Corporation passed further resolutions to build a bicycle storage area and a communal garden on the common property next to the owner’s lot that would impose even further impediments. The owner again protested and sought a declaration that the proposals be stopped. The court agreed with the owner and held that ‘a fundamental use of common property is to provide access to lots. The right to reasonably use the common property for that purpose cannot be taken away.’

When will an equitable lease be abandoned?

May 18, 2018by baron + associatesLeave a comment

In the case of Gupta v Fordham Laboratories a dispute arose concerning a commercial premises. The owner claimed that the lessee abandoned the equitable lease during negotiations between the two parties. Those negotiations varied the terms provided for under the equitable lease that came into existence following the exercise of an option. The Court held that those negotiations did not constitute an abandonment of the equitable lease. The Court ordered the performance of the option lease agreement.

When both landlord and tenant owe a duty of care to other persons

May 18, 2018by baron + associatesLeave a comment

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In Libra Collaroy Pty Ltd v Bhide, the balcony of a residential property collapsed and injured the tenant and other persons. The tenant commenced proceedings against the landlord, and the other injured persons commenced proceedings against the tenant and landlord. The issue was whether the landlord and the tenant breached a duty of care owed to the other persons. The landlords had delegated the management of the property to an agent. The Court held that the landlord breached its duty of care owed to the tenant and other persons, since the agent was not discharging its duty competently. The tenant also breached a duty of care owed to the other persons since she had previously discovered that the balcony was defective and should have refused anyone access to the balcony until it was fixed.

The dishonest removal of a caveat

May 18, 2018by baron + associatesLeave a comment

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In Pham v Enterprise ICT, Mr Sebie entered into a contract to sell his property. Mr Sebie failed to complete the contract and the purchasers sought specific performance of the contract. The purchasers had lodged a caveat over the property. Mr Sebie, without notice to the purchasers, dishonestly removed the caveat and transferred the property to Enterprise ICT Pty Ltd, the sole director of which was Mr Sebie. The Court held that the transfer to Enterprise ICT was fraudulent under sections 42, 43 of the Real Property Act 1900 (NSW). The Court ordered that Mr Sebie pay compensation to the purchasers for the cost they incurred of renting a house during the dispute, that the registration of title in the name Enterprise ICT be set aside, and the original contract be performed.

Can an agent’s commission be varied orally when there is a written agreement?

May 18, 2018by baron + associatesLeave a comment

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In George Ghossayn v Darcsol Pty Ltd t/as KJondarc Realty, Mr Ghossayn and Joandarc Realty entered into a written agency agreement regarding the sale of a property. A dispute arose regarding the real estate agent’s entitlement to commission which was allegedly orally varied. The Court held that the commission rate was not effectively changed by any oral agreement because no amendment was made to the written agency agreement, and because there was no evidence that the vendor informed his partner of any agreed change in the commission.

When will a compulsory acquisition be rejected?

May 18, 2018by baron + associatesLeave a comment

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In Desane Properties v State of New South Wales, the plaintiff owned property in Rozelle that was to be acquired by the NSW government for WestConnex. The NSW Supreme Court held that the acquisition was invalid because the notice of the proposed acquisition given to the owner did not meet the requirements of the Land Acquisition (Just Terms) Compensation Act (NSW). This was because the notice stated that compensation could be expected within 45 days rather than 30 days, and that the notice did not specify the public purpose of the acquisition.

Criteria to consider when applying for trees to be pruned or removed

May 18, 2018by baron + associatesLeave a comment

In Bustamante v Mlinaric the Court stated that when assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied by at least one of the following criteria:

The tree caused or is now causing damage to the applicant’s property on the land
The tree is likely in the near future to cause damage to the applicant’s property on the land
The tree is likely to cause injury to a person

Exploiting a person’s special disability: unconscionable conduct

May 18, 2018by baron + associatesLeave a comment

In Gillian Fisher-Pollard v Piers Fisher-Pollard, a mother and son entered into a series of property transactions. At the time of the transactions the mother was suffering from the onset of dementia and grief from the death of her husband. The mother allegedly gifted a property to the son. The Court held that the conduct of the son in enticing the mother to gift the property was unconscionable, since the mother was suffering from a special disability by way of her profound grief and confused mental state. She also lacked independent legal advice.