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Whatever you do, don't annoy the voters!

New laws for Airbnb rentals to start in 2019 in NSW

The Castle is a great movie because it captures the emotional attachment Australians have to their home and to living a friendly and peaceful neighbourhood.

Town planning laws support this by strictly separating residential from business and commercial areas, with exceptions for home offices and occupations.

However, Airbnb style short-term rentals have disturbed the neighbours, especially in strata buildings, because the guests come and go frequently, some are noisy, some hold parties and some cause damage. They have disturbed the Local Councils because Airbnb rentals introduce a commercial activity into residential areas.

For the past three years, the NSW Government has been searching for a compromise between encouraging tourism and allowing people to make extra money on the one hand, and complaints by voters of increased levels of noise and disturbance in residential neighbourhoods on the other.

Now the NSW Government has introduced new laws to regulate short-term rentals.

In summary:

  • Homestays are legal all year round if the owner-occupier is renting a spare room, a flat or a studio as a short-term rental in their home. No Council approval is needed.
     
  • Whole house or apartment short-term rentals are legal up to 180 days per year, where the owner-investor is not present. This limit applies to Greater Sydney. Elsewhere in NSW, there is no upper limit on the number of days. No Council approval is needed.
     
  • If the apartment is in a strata building, the Owners Corporation can totally ban owner/investors from using their apartment for short-term rentals, but not owner/occupiers from using the apartment for short-term rentals when they are away, such as on holidays (for up to 180 days per year). A special by-law is needed, passed by a 75% majority, to ban short-term rentals
     
  • All hosts will need to register their property. Airbnb hosts, guests, holiday letting agents, etc will need to comply with a code of conduct to keep the neighbourhood peaceful, and observe rules for parking and garbage disposal.

Of course, there are many fine details. To find out more click Be ready for the new Airbnb / short-term letting laws which will start in 2019 in NSW


New NSW policy welcomes short stay rentals (Airbnb style)

On 5 June 2018, the New South Wales Government announced a new policy for hosts for short-term Airbnb style holiday letting. The new policy will affect both owner-occupiers and investors.

The key is a new cap of 180 days in any one year on short-term lettings for an investment property, meaning a property that is not owner-occupied. The cap does not apply to owner-occupiers who rent a spare room or rooms.

Owner-occupiers - who rent 'rooms' in houses and home units anywhere in NSW - There is no cap on the number of days in a year that rooms can be let for short-term lettings. This applies to owners who let part of the house for short-term lettings, and live in another part. If breakfast is served, a B & B Licence might be needed from the Local Council.

Investors - who rent 'whole' houses and home units outside of Sydney - There is no cap on the number of days in a year that the whole house or home unit can be let for short-term lettings.

Investors - who rent 'whole' houses and home units in Greater Sydney - there is a cap of 180 days in any one year for short-term lettings. The boundary line for the Greater Sydney Region is yet to be drawn.

Investors - who rent home units in Sydney - If the Owners Corporation passes a 75% majority resolution (a special resolution) then it can ban short-term lettings by investors of 'entire' home units in the building. This cannot affect owner-occupiers who let rooms. It is not clear whether existing bans will be allowed to continue, or whether a new resolution will be needed.

For all short-term lettings, there will be a new mandatory Code of Conduct that hosts and guest must follow, accompanied by a two-strike policy, whereby hosts or guests who commit two serious breaches of the code within two years will be banned for five years and listed on an exclusion register.

For more details on the new rules, click Is the new NSW Government policy a win-win for short-term (Airbnb style) holiday letting?


An investment loan is not repayable without proof of the money trail

When Michael Howard invested in the Great Southern 2006 Organic Olives Income Project he took up the loan offer from the finance arm of Great Southern to fund the total cost of $24,490. In turn, Great Southern Finance nominated ABL Nominees, a company associated with the Bendigo and Adelaide Bank to be the lender.

For three years Michael Howard paid interest on the loan to Great Southern Finance. Not long afterwards the project was wound up because it had run out of money to cultivate the olive trees. He never received one dollar in return from his investment.

Seven years later, Michael Howard was served with a Statement of Claim from the Bendigo Bank to recover the loan, which by then had grown to $66,569.32 with interest. He decided to fight the claim.

Last week, he succeeded in defeating the claim, not because the project failed, but because the Bendigo Bank was unable to prove that a loan advance had been made. It had a paper trail - a loan deed and associated documents. But did not have a money trail to show that the money had been transferred to Great Southern to pay for the investment.

So in a roundabout way, justice was done. Michael Howard was not forced to pay the investment loan for a failed project. And the Bendigo Bank was ordered to pay his legal costs.

This decision has significance far beyond Michael Howard. He was one of 22,000 investors in Great Southern Projects who used the finance arm to fund their investment, and one of several thousand investors who dispute their loan.

Michael Howard's victory shines a light which may help these investors. For my case note click on No evidence of a loan advance sinks the Bendigo Bank's loan recovery action against a Great Southern investor.


Purplebricks real estate promises greater fee transparency for sellers

Real estate agents charge sellers a commission, which in Sydney is currently 1.65% of the price - $16,500 on a $1m property; plus marketing expenses of about $5,000 which cover a signboard, photography, listings on domain.com.au, realestate.com.au and its own website, brochures and auction expenses.

Online marketers are disrupting this traditional business model. They are doing away with shopfronts, and operate virtual agency models. By doing so, they are able to lower their cost base and charge less for selling a property.

The most prominent online marketer is Purplebricks real estate, which charges a fixed fee, instead of a commission, for selling a property. It advertises prominently a fixed fee of $5.999 in NSW & VIC, and $4,999 in QLD, WA & SA. The fixed fee includes the services of a 'Local Property Expert', photography and write up for listings on the domain.com.au, realestate.com.au and its own website, a generic signboard, and inspections booked on the internet.

You might think that the fixed fee includes accompanied viewings, marketing reviews, marketing upgrades, an auction and so forth. But you would be wrong! In the fine print, you will find that these are additional services for which additional fees are payable.

Consumers complained to the Queensland Office of Fair Trading that Purplebricks was being misleading in advertising fixed fees, when additional fees were payable. The OFT agreed, and as a result, Purplebricks has changed its advertising to make the additional fees payable more prominent, and has agreed to pay $10,000 to the OFT as a 'fine'.

When carrying out its investigation, the OFT found that Purplebricks was in breach of many of the real estate licensing requirements, and fined Purplebricks another $10,000.

For more information on the action taken by the OFT, click on my article Purplebricks promises no misleading advertising of fixed fees and additional services, and admits breaches of the real estate licensing law


Are you selling your home or investment property? Is a flat fee online agent better than a traditional estate agent? Is it the difference in marketing?

Digital disruption has come to real estate agents in Australian in the form of online agencies which are offering marketing and sales services to assist sellers in selling their property for a low fixed-fee. They are undercutting full service real estate agents which charge a sales commission.

Purplebricks is an online agency. For a look at the Purplebricks Real Estate operating model, and how it is attracting owners to list properties in the Australian Real Estate market, click here


Don't sign a personal guarantee to a lease unless you absolutely need to!


When a businessperson negotiates a lease of a shop, their focus is on the rent, the rent free period, the term, the options to renew, the security bond and the permitted use.

The personal guarantee for the rent is an afterthought, unless giving one means a 1 month security bond is negotiated instead of 3 months security bond without one. The fact that giving a director's guarantee removes the asset protection of leasing in a company name is rarely considered.

Fast forward, and for whatever reason, the business is going bad because it cannot make enough sales. The tenant falls behind on their rent. The landlord terminates the lease.

What was once an afterthought becomes the major source of financial stress as the landlord pursues the director's personal guarantee: for rent up to the lease termination, then for rent lost until the shop is re-rented, and finally for make good expenses. Legally, there are few defences to claims made by landlords under personal guarantees.

Two recent decisions by the NSW Court of Appeal demonstrate how financially ruinous a personal guarantee can be:

  • The directors of the ex-tenant - Panetta Fruits at Westfield Miranda were ordered to pay $3,674,555.53 under their personal guarantees, which was equivalent to over 3 years rent.
     
  • The director of the ex-tenant - Circa Newsagency at CircaRetail Bella Vista was ordered to pay $602,178.35 which was equivalent to several years rent.

What options does a tenant have when the landlord demands a personal guarantee? The best option is to offer more security bond - 3 months is common - instead of a personal guarantee. The second best option is to limit the personal guarantee to say 3 or 6 months. The third option is to walk away from the lease.

For my detailed comments on the two Court of Appeal decisions, click Two retail tenancy failures expose directors who gave their personal guarantees to the landlord to ruinous losses


Do car parking spaces add value to a home?

Along with the number of bedrooms and bathrooms, the number of car parking spaces is one of the three standard criteria commonly used in marketing a home.

Click here to read more about their value


Is it a good idea to switch from a family trust to a company to save tax?

With family trusts under threat as a tax shelter, are companies looking like an attractive tax effective alternative?

The tax effectiveness of a family trust is that profits are distributed to members of the family, as you choose, every year. This means diverting the profit distributions away from high income earners to low income earners (such as adult children) to take advantage of the tax free threshold of $18,200, and the 19 per cent tax bracket up to $37,000, so as to avoid distributions to high income earners who have tax brackets of 37 per cent from $87,000 up to $180,000 and 45 per cent above.

The threat (currently the federal opposition policy) is for family trust distributions to be taxed at a rate of 30 per cent. For example: if the low income earner is earning wages (from casual or part-time work) of $15,000 pa, then that is tax free because it is earned income. But on every dollar of trust distribution which tops up income up to $37,000, the tax rate is proposed to be 30 per cent. Trust distributions which top up income above $37,000 will be taxed according to the tax bracket, which is 32.5 per cent.

Company profits are kept by the company - they do not need to be fully distributed each year - unlike profits from a family trust which must be distributed. After paying company tax, the profits do not need to be paid out as dividends. Therefore, if the shareholders are high income earners, they can avoid receiving income which is taxable in a high tax bracket.

The icing on the cake is the recent company tax rate cuts, which for a company with an annual income of less than $25 million, means a tax rate of 27.5 per cent instead of 30 per cent. This means that small company can retain more of its profits.

But the 27.5 per cent tax rate is available only if 20 per cent or more of the company's income is from business activities. That is, pure investment income does not qualify, such as rent, interest, dividends, capital gains and trust distributions

Conclusion: If a flat tax rate of 27.5 per cent is attractive, then it's a good idea to switch to using a company for a new active investment or business.

For more information, click - Real estate investment companies must pass the 80% passive income test to qualify for the company tax rate cut


If you are moving out of a shop or office, do you repaint or leave it as is?

If you own or rent a shop, office, warehouse or factory, the ‘make good’ covenant in the lease usually requires the tenant to repaint the inside. The question is, can the landlord recover what the cost of repainting would be, without actually doing the repainting?

For more click - If you are moving out of a shop or office, do you repaint or leave it as is?


Does Airbnb give Boutique Hotels and B&Bs a competitive edge?

Traditional hotel chains and large resorts have long dominated the accommodation industry because of their strong brand marketing and distribution channels.

But as with so many other industries, the internet is disrupting the traveller accommodation industry. Through internet booking platform operators such as Airbnb, Stayz, eDreams and Bookings.com, the internet is providing small accommodation providers with easy and cheap access to a global market for travellers, whether it is for business or pleasure.

There are four services which Airbnb provides, which give Boutique Hotels and Bed & Breakfasts a competitive edge over traditional hotels and resorts, and which allows them to by-pass the traditional travel agents (brick & mortar or online) in making bookings:

  • Marketing
  • Bookings Management
  • Payments Platform
  • Property Damage & Injuries cover

These services are increasing lodging occupancy and pricing power for small accommodation providers.

For more information about how Airbnb is empowering Boutique Hotels and B&Bs to build their business, Click for more


The law is catching up with Airbnb hosts

Until now, many Airbnb hosts have flown under the radar. That all they are doing is making a little extra money by renting out a spare room in their home.

But as it becomes more like a short-term holiday letting business, as promoted by Airbnb, Stayx, eDreams and others, it becomes more mainstream and widespread, and the government has taken an interest in regulating it. The NSW Parliamentary Inquiry has now issued its report, and the Victorian Parliamentary Inquiry is currently considering submissions on how to regulate it.

These trends are emerging as the law develops:

  • Town Planning Law - If more than 2 or 3 rooms are rented, and if breakfast or cooking facilities are provided, it is a commercial use and a planning approval or a licence as Bed and Breakfast Accommodation is necessary. If a whole house or apartment is rented, planning approval may be necessary either as a separate dwelling on the ‘home block’ or as Serviced Apartment if it is in a strata apartment block.
     
  • Insurance - Renting a room in a home is the same as having a home office for insurance purposes - both are a business use which is not covered by a standard Home Owner policy when it comes to coverage for injuries. It is different for Landlords policies, where coverage is provided for property investments.Malicious property damage is not covered by any policy. Airbnb fills these gaps by providing “Host Protection Insurance” to cover injuries and a "Host Guarantee" to cover property damage by guests.
     
  • Taxation - For income tax purposes, all rents are income and expenses are deductible. For capital gains tax purposes, there may be a partial loss of the main residence exemption because the property has a business use.
    For GST purposes, GST does not apply unless the use is a commercial use.
     
  • Strata Law - The Courts have ruled that any strata by-law which restricts the use of apartments for short-term holiday letting is invalid. Body Corporates cannot bar Airbnb lettings, but can control noise and damage to the common areas. The rest must be left to the planning authority - the Local Council

For more information about the current status of the law in these areas, click: What laws apply to an Airbnb host in Australia?  Click for more


Passionate about property - Property as a superannuation investment

Does property have a place in a super fund? As discussed in chapter 6 of the book 'Super Rich: How to create a tax-free income for life'', there are arguments for and against. The chapter looks at the advantages of property as a super investment.

I’ll explain how property works as a tax shelter outside and inside an SMSF, and how to find and acquire suitable property. Click for more.



Without liability insurance, home owners are exposed to million dollar law suits

Personal injury law suits represent the single largest threat to a home owner's and landlord's assets.

Compensation awards can exceed $1 million for head injuries or spinal cord injuries caused by falling from a ladder, slipping on stairs, and tripping over.

For this reason, it is essential for home owners and landlords to have Liability insurance cover as part of their Home Insurance / Landlord's Insurance policy.

The importance of having Liability insurance cover was recently highlighted in a decision of the Supreme Court of Tasmania. The court ordered the home owner (i.e. their insurer) to pay their roofer over $1.1 million in compensation for his severe head injuries because they owed him a duty of care for his safety while working on the roof.

Without Liability insurance, such an award would have been devastating for the home owner. They would have been forced to sell their home to pay the award, and face bankruptcy for the shortfall.

For more information, click - Roofer falls off ladder set up by home owner; Court orders home owner to pay $1.1m



How liable are you if a visitor slips or trips when entering your property?

VERY LIABLE according a Victorian Supreme Court decision of Scott v Wanklyn.
Of course, liability is not automatic. The property owner/tenant must be at fault (i.e. negligent) in some way.

There is little or no liability if the visitor is at fault, for example, if they are not looking where they are stepping because they are texting on their phone or are wearing slippery footwear.

But if the owner has done something like digging a shallow trench which is hidden by fallen leaves (as in the Victorian decision) or has not repaired a wobbly step or uneven paving, then they are liable.

Public liability insurance covers owners and occupiers liability for injuries to visitors. It is often called the forgotten insurance because it is packaged into the main insurance:

  • For home owners and landlords, it is in their home insurance.
     
  • For business owners, it is in their business insurance.
     
  • For tenants / renters, it is in their contents insurance.

With court awards of hundreds of thousands or even millions of dollars, if a visitor is seriously injured and loses their income, it is public liability insurance that could save your house and save you from bankruptcy.

To read my summary of the Victorian decision, click - Occupier's liability - Aged visitors and uneven access ways are a recipe for injury
 



SHOULD YOU SELL THE FAMILY HOME WHEN YOUR PARENTS MOVE TO AN AGED CARE HOME?

A son, seeking to protect his inheritance, used his power under his mother’s Enduring Power of Attorney to transfer her home unit into his name. This left the mother without assets or funds to pay for her aged care costs.

See Full Article



JOINT VENTURE AGREEMENTS WITH MONEY PARTNERS (INVESTORS)
FOR REAL ESTATE INVESTMENT

See Full Article



THE EFFECT OF THE GST UPON REAL ESTATE

What impact will the GST have on real estate? In this article, we will examine the impact of the GST on residential and commercial real estate, and end with some views on its impact upon the real estate market.

See Full Article



HOW DOES PROPERTY FIT INTO SUPERANNUATION?

Property investment strategies suitable for Super.
Creative ways to get existing property into Super.

See Full Article



TREE DISPUTES BETWEEN NEIGHBOURS

If a tree grows on your property, you can prune and remove it if it is likely to damage a wall, a fence or paving, provided you obtain a Council Permit.

But what can you do if the tree grows on your neighbour’s property, and the branches or the roots are causing damage, or are likely to cause damage to your property, or a high hedge is planted inside a boundary seriously obstructing your sunlight or view?

In NSW, the Trees (Disputes Between Neighbours) Act gives you the right to take action against the neighbour’s trees – and makes the neighbour legally responsible for damage caused.

See Full Article



VENDOR FINANCE FOR PROPERTIES

With the GFC heralding demise of the sub-prime lenders and the Banks tightening up their lending criteria, between 10% and 20% of potential homebuyers no longer have access to traditional finance to buy their own home.

This gap in the marketplace is gradually being filled by non-traditional financiers, who offer what is known as vendor finance or seller finance to help homebuyers to buy their own home.

Selling homes using vendor finance helps sellers as well as buyers. Sellers can broaden their property’s appeal because the buyers don’t have to find their own finance, and can sell at the price the property is worth.

There are several different kinds of vendor finance, all of which use traditional legal documents.

There is Rent to Buy, Rent to Own, Instalment Contracts, Second Mortgage Carry Backs, Deposit Finance, and Delayed Completion Finance.

See Full Article


For more information, visit our other website www.vendorfinancelawyer.com.au 

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