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Property law

 

 

 

 

 

 

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 Here


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

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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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