Q & A on 2GB discussing Property Law 18/02/14

Tuesday, 18 February 2014

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CS       And some great response whilst I’ve been away to our Legal Matters segment with Turner Freeman, our lawyers and sponsors of the segment. A stack of calls. Luke Grant was telling me over the last couple of Tuesdays and, don’t forget, we had this segment on a Thursday but this year on the Tuesday, which I think has probably given some of the more heady topics that we discussed a more appropriate time anyway, so it’s nicely situated at 1.30pm on a Tuesday afternoon. The number’s 131873. It is not often, if ever, you get a chance to ask a lawyer something for free. Alright? I’m just putting it out there. This is your opportunity through Turner Freeman Lawyers 131873. Paul Sant talking property law today and he’s in the studio. Paul, thank you very much for coming in.

PS       Thank you Chris.

CS       I’m glad you just turned off that mobile phone. We’ve had guests in here that don’t turn off their mobile phones. It’s disgraceful. And even the big birther over here’s got his mobile phone on. Turn if off. I don’t even know where mine is, oh there it is. Oh it’s off, it’s off. New swimming pool regulations. Whenever I raise swimming pool regulations and who’s on the register and who’s not, who should be and when they have to be, calls go berserk from people going, well hang on a minute, I tried to get on, I couldn’t get on, the Council didn’t know about it.  That has all changed thankfully. So it seems as if everyone’s on the same page. But as from April, properties containing a swimming pool must have a compliance certificate.

PS       As from 29 April, contracts for the sale of properties including a pool, must have a compliance certificate attached to the contract.

CS       So the compliance certificate would come from Council saying the swimming pool is fabulous and that it’s well fenced and it’s safe.

PS       It’s either from Council or a certifier. Now, the problem is, what people have to understand is, if you sell a property after 29 April and that certificate is not there, your buyer can pull the plug at any time. Now you go and sell the property, you don’t have a certificate in the contract, you go buy another property which may not have a pool, the buyer gets out of your sale, you’re locked into the purchase.

CS       Spot on and then you’ve got to try and get bridging finance because you’re going to be caught with two properties.

PS       That’s why we bring the issue up now just to remind people of these new requirements.

CS       Ok, so by the 29th of April, properties containing a swimming pool must have a compliance certificate. You need to tell your lawyer to make sure that certificate is present, right?

PS       Most lawyers would know that they are the new regulations. Alerts have been sent out, everyone’s been told to update the contracts but it can happen. You know, you might have put a pool in, your lawyer might not have asked you or you might not have told the lawyer that you have a pool. And also in relation to leases. Leases, after 29 April, also are required to have a certificate.

CS       Ok, so leases that exchange.

PS       Residential leases.

CS       But is that up to the lessee or more up to the real estate agent?

PS       The real estate agent would have to…

CS       Yeah, and make sure that they get that from the Council.

PS       From the Council or the certifier.

CS       Can you go out and get your own certifier?

PS       Yeah.

CS       And there are independent certifiers that do that for you?

PS       Yes, I believe so.

CS       So Council has to site that certificate or what?

PS       No, no.  It’s a certificate that just has to be attached to the contract or the lease and that certificate can be by a certifier or by the Council. You can have private certifiers, certify.

CS       Ok, let’s get to calls. 131873 Paul is his name, Paul Sant from Turner Freeman Lawyers. Zoren, hi.

C1       Hello, good afternoon.

CS       Good afternoon.

PS       Good afternoon.

C1       I don’t know if you can answer my question. I have very elderly parents and they live in their own home, owned by me, my brother and my parents and it’s a double-storey house with a lot of stairs and me and my brother agree to look after a parent each. And what is the legal thing if we try to sell that house and look after our parents and we haven’t got enough finance to buy a bigger house or to move into a house that’s at ground level? What is the legal thing we do, in case they need to move into a nursing home or something like that, you know? Because I heard stories about, if they own anything, that can be all taken away if they move into a nursing home.

PS       I get your point, now.

C1       I don’t know if you can answer that but it’s very hard to find anything out about that.

PS       If they have to be admitted to a nursing home, they have certain rules and it’s actually governed by the Commonwealth, as to what fees are payable depending upon the assets owned by your parents. Now, if your parents are only part owners of the house, and the house is sold, then they are deemed to have received their entitlement from the proceeds. One of the exceptions, however, is this. If either you or your brother are the carer of your parents and aren’t working, then I believe that what they would have otherwise have got may not be taken into account. But there are very particular rules which are governed, I believe, by the Commonwealth as to what contributions are required to be paid in relation to nursing homes etc.

C1       Do you have contact information about…so I can get more information from someone?

CS       Well why don’t we get Zoren in contact with you after the programme and maybe you can put him in a better direction?

PS       Best bets are nursing homes.

CS       The nursing homes will indicate. Nursing homes are really up to speed with this sort of stuff. Ok, Zoren, stay right there and we’ll get your number anyway and Bridgette will take your number and we’ll try and give you a little bit more information in terms of the question you’re asking. Now, John has a question for you Paul. Go ahead John.

C2       G’day Paul, how you going?

PS       Good thanks John.

C2       I’m the executive of a body corporate and they’re the discussing the expenditure, a large amount of expenditure (about $60,000) but the Secretary just sent a memo out to say there was a meeting of the executive on this date without any consultation whatsoever and I’m unable to attend and I feel with such a large expenditure that all executive members should have a right to have a say and I was just wondering, is there any legal avenues, under the strata of management and that.

PS       Are you talking about a meeting of the Executive or are you talking about a general meeting?

C2       No, a meeting of the Executive.

PS       That’s governed by the Rules. I believe the Secretary is entitled to call the meeting, provided they give the appropriate notice. Question whether your Rules allow you, for example, to appoint a Proxy in relation to those meetings. Or, whether a certain number of delegates who can’t make it, could call for an alternative date.

C2       Ok.

PS       There is also a Commissioner for Strata Titles and I think that’s part of the Department of Fair Trading that you might be able to contact as well just to confirm what they can and can’t do.

C2       I know if you’ve got 25% of the people that live there to sign the form you can call an Extraordinary General Meeting.

PS       Yeah, well we’re talking about a meeting of the Executing.

C2       Yeah, yeah.

CS       Alright John. Thank you very much for your call. Maybe you call the Commission, is that right? The Strata Commission is it called?

PS       The Commission of Strata Titles.

CS       Ok, which is in the Fair Trading Department?

PS       The Department of Fair Trading.

CS       Right.  John, talking pools, John, go ahead.

C3       Yeah, hi Paul.

PS       Hi.

C3       I’ve just got a question about…I’ve got an inflatable pool, one of those inflatable ones.

CS       What, not the ones the size of your car bonnet?

C3       Yeah, one of those. It just about fits me and my son in it. Now, when all this registration stuff was going on, we were told on the radio on one of your shows I think, that you had to register any pool whether it was inflatable or not. Now I haven’t had the thing set up since I registered it, do I need to have a certificate for that? I live in a rented property by the way so I’m a tenant. Do I have to have a certificate for that?

CS       Surely not.  I wonder whether there’s anything in the legislation that actually points out blow up pools.

PS       I don’t know. I don’t know whether there’s a certain depth to constitute a pool.

CS       Well, why don’t I ask Ian whether he could call the Minister involved about your standard blow up pool from Kmart and whether it is included in this legislation? We’ll find out John, we don’t know but I doubt it.

C3       Yeah, because it would be good to find out. I mean, that was my worry. I mean, it hasn’t been set up and I’m thinking, ok well I’ve registered it.

PS       Well if it hasn’t been set up then you don’t need the certificate and you’re a tenant, you’re not the landlord so you don’t have to provide the certificate in a new lease agreement after 29 April.

CS       Once thing you don’t need with one of those pools, you don’t need a fence either.

PS       I hope not.

C3       Yeah, well I’ve only got the back yard fence, the standard one. But, by the legislation, and that’s what they were saying, if you’ve got one of those pools, it has to be registered.  Well, now it’s registered, that means it’s on their books, does that need to follow all those rules and regulations?

PS       Well, if you’re selling a property, you wouldn’t sell it with the blow up pool. So, you’d get rid of the blow up pool for a start. So that’s not required. And in relation to tenancy, you’re not the landlord and it’s not a new lease so, again, it’s not relevant. The question for you, perhaps is with a blow up pool, do I need to have it registered and I really don’t know the answer.

CS       We’ll find out, John. Good on you 131873. And do you register the diving board that goes with the blow up pool? I don’t know. It’s 13 minutes to 2 o’clock.

We’ve got our Legal Matters segment on right now with Paul Sant who’s talking property today. Now, this would be a common question about the sale of property. Andrew, go ahead. Paul is listening.

C4       Yeah, hi Paul.

PS       Hi Andrew.

C4       I purchased a property. We did a pre-building and pest inspection. We haven’t moved into the property, we’re waiting for the property to renovate and what’s happened is, we’ve found that there were white ants. We got the guy back on the following Tuesday and he’s told us that, yeah, he missed a spot in the roof. I’ve had two pest inspections done and two pest inspections say that the house is too far gone.

PS       What do you mean by, the house is too far gone?

C4       Well half of the house is…

PS       So it wasn’t just in one little spot? There were white ants everywhere?

C4       No, they’re in the roof, they’re in the walls, they’re everywhere.

PS       Possible claim against the person who provided you with the pest report.

C4       Yeah.

PS       Now, one thing with pest reports, however, when you read the fine print, they can’t do any invasive inspection. I mean, they can’t rip pieces of timber off walls to have a look underneath.

C4       Yes.

PS       They can only provide a report on what they see so if there’s droppings on the…if there’s indications on the outside that there’s been termite activity, that will give you a hint, hey there might be something behind chip rock or the timbers, ok?

C4       Yeah, well outside, underneath the house where apparently this guy’s gone underneath the house, he’s found that the two pest inspectors that were independent after him, have found mounds where they’ve gone into the house, we’ve also found them in the roof and stuff.  He got up in the roof himself, then when I told him I found white ants when my hand went through the window, he said that there’s actually…

PS       And did you get the pest report? Did you organise the pest report?

C4       Well then I’d be seeing someone about possible claims against the pest guy.

CS       Yeah, I’d be contacting maybe Turner Freeman for a claim against the person that wrote the pest report if three quarters of the house is almost eaten. Now, here is another common question about titles and the changing of titles. Paul, go ahead.

C5       Hello. Look, many years ago our parents bought two apartments side by side. They took the wall out and made one larger apartment. Years later, we’d like to go back and actually put the wall back and make it into two separate titles. Is this possible still?

PS       But when they took the one wall out, did they get the Owner Corporation permission and was the Strata Plan changed?

C5       Yes, this was in the 1940s-1950s. Yes it was, it’s all back into one title. The issue at the moment is, all the family want part of the action and I said look, the simplest thing is put the wall back into it and separate two titles.  You get one and we get the other.

PS       Not unless you get the Owners’ Corporation permission and you’ll have to change the plan.

C5       Oh right.

PS       I wouldn’t think that people would have gone to the extent of changing the strata plan if it’s an apartment to convert two into one.

C5       Well, looking at the Title Deed, there’s only one part listed as one name on the titles, it’s fine.

PS       One lot number. So they might have changed the plan. Well if you want to split it into two, firstly get the permission of the Owners’ Corporation and question whether it needs to be Council approved as well but they might go back to the original approval.

CS       Ok, Paul, thank you very much for your call. Any pool whether portable, inflatable or in ground, that is deeper than 30 cm must be surrounded by a pool fence. Well, a blow up pool isn’t deeper than 30 cm. Not the last one I found. The Australian Competition and Consumer Commission will be enforcing a new mandatory safety standard for portable pools and their retail packaging which will require mandatory safety warnings from March 24 in. So from next month, they’re actually putting warnings on labels on these blow up pools. Well, that’s interesting. Then where do you stop? What about fish ponds? Where do you stop? 131873 June, in terms of pool legislation, go ahead.

C6       Hi, my question is, do you refer to the Compliance Certificate for pools for contracts and for residential leases but what’s the ruling with holiday properties, for example?

PS       In what sense?

C6       Well, when someone goes and stays there, should the owner have a certified copy for a pool?

PS       If it’s a rental, if they enter into a rental agreement, it’s required after 29 April.

CS       Exactly, it applies whether it’s a holiday rental or not.  And the same onus would be on the owner irrespective of who’s staying at the property.

PS       True.

CS       131873 is the telephone number. We’ve almost run out of time. How about we quickly go to Amanda. Amanda, is it a long question because we may have to leave this to another day?

C7       Ok, it’s basically just to ask if there’s any Federal legislation or guidelines I can look at to object to a neighbour extending their property and is going to place an outdoor entertainment area right next to our bedroom along the boundary, so less than a meter away?

CS       Have they got it approved by Council yet?

C7       No, it’s getting taken to Council. We managed to get it taken to Council for the Councillors to discuss.

PS       Yeah.

CS       Ok.  What do you think Paul?

PS       It wouldn’t be Federal legislation, it would be State.

CS       State.

PS       And then if Council approve it, you may have an objection you can lodge with the Land and Environment…

CS       But you also get a chance to go to Council and have your say, as we all do.

PS       Yeah, lodge your objection. Correct.

CS       Ok, thank you very much mate, you’re inundated with calls today.

PS       Yeah.

CS       Thank you Paul.

PS       So much for an easy day.

CS       Yeah.  Paul Sant from Turner Freeman.