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Mine subsidence certificates – NSW

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Mine subsidence certificates have been abolished in NSW.

From 30 September 2019, certificates of compliance for properties under Section 15 of the former Mine Subsidence Compensation Act 1961 are no longer available from Subsidence Advisory NSW.

Subsidence Advisory NSW’s records indicate the vast majority of developments in mine subsidence districts are approved structures. In the last ten years, only four claims for homes have been refused due to the structure being non-compliant. Due to the extremely low likelihood of a claim being made for a non-compliant property, the significant cost increase to adequately undertake compliance checks prior to issuing certificates was deemed unwarranted.

As a result, the certificates were not carried over to the Coal Mine Subsidence Compensation Act 2017. Property owners are afforded the following alternative protections under the Act:

  • Subsidence Advisory NSW has discretion to pay a claim for subsidence damage to a contravening development in circumstances where the failure to obtain the relevant approvals was not the fault of the property owner or where exceptional circumstances exist.
  • Under Section 23(a) of the Act, buyers have the right to withdraw from a contract of sale for a structure that does not comply with Subsidence Advisory NSW’s development requirements.

Prospective purchasers who wish to ascertain whether a structure is eligible for compensation can do so by obtaining confirmation of development approval through the vendor or council.

Precedent update – Conveyancing – NSW

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A precedent update has followed recent user feedback. Significant amendments have been made to the ‘Letter to purchaser after exchange’ in the Purchase of Real Property Guide.

This useful precedent letter now includes headings and reflects the process of payment of transfer duty where settlement is to occur electronically.

The areas covered, now organised under the new headings are as follows:

  • GST
  • Investigation of title
  • Transfer duty
  • Insurance
  • Pre-settlement

The ‘Letter to purchaser after exchange when no initial letter done’ has also been amended to reflect these changes.

At By Lawyers we love to receive feedback from our users and they are often the reason that we conduct a precedent update.

Transition to E-conveyancing – All states

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The By Lawyers commentary ‘A brief explanation to the transition to E-conveyancing‘ has been updated.

This very practical and topical commentary is available in all By Lawyers Conveyancing & Property Guides, including Sale, Purchase, Mortgages and Leases.  It helps all practitioners to get up to speed on the ever-accelerating transition to E-conveyancing.

The recent updates cover:

Important new industry mandated time frames

NSW – From 1 July 2019, mainstream property dealings including transfers, mortgages and discharges of mortgage, caveats, withdrawals of caveat and transmission applications must be lodged electronically.

VIC – Land Use Victoria has mandated that complex land transfer transactions must be lodged and managed online from 1 August 2019, bringing almost all transactions online. Duties Online enhancements are scheduled to take effect from 17 June 2019.

Details of the new Electronic Lodgement Network Operator, Sympli

The second ELNO, Sympli is coming soon to join PEXA in the e-settlement space. Sympli promises an intuitive and user-friendly platform.

Information regarding the new settlement agent network, SettleIT.

SettleIT, an InfoTrack initiative, is a shared network of specialist settlement agents that handle e-settlement processing on behalf of property practitioners. With one click, a SettleIT agent
can be booked to provide a personalised, fixed-price service to take a conveyancing matter through to settlement.

Keep up to date with By Lawyers

By Lawyers Conveyancing guides provide all the information required to conduct conveyancing, including electronic property transactions, confidently and efficiently.

Foreign Buyers Duty – Western Australia

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From 1 January 2019 Foreign Buyers Duty applies, being additional duty imposed on certain transactions and acquisitions involving foreign persons or entities acquiring residential property in Western Australia. An additional duty of 7% is imposed on direct acquisitions (foreign transfer duty) and indirect acquisitions (foreign landholder duty) of residential property by foreign persons.

Foreign Buyers Duty will not apply to purchases of commercial, industrial or mixed used properties used primarily for commercial purposes.

An exemption from foreign transfer duty and foreign landholder duty for residential developments applies where certain conditions are met.

A Foreign Transfer Duty Declaration form is used to declare whether each purchaser or transferee is a foreign person. This form must be completed by each person acquiring an interest in any land in Western Australia.

The By Lawyers Purchase of Real Property (WA) guide has been updated as follows:

  • Comprehensive commentary has been added on Foreign Buyers Duty.
  • New forms added to the matter plan include Foreign Transfer Duty Declaration, Foreign Landholder Duty – Developer Exemptions and Foreign Transfer Duty – Developer Exemptions.
  • The To Do List – Purchase of Real Property now includes an item on the obligation to complete a foreign transfer duty declaration form.

By Lawyers keep on top of changes in the law so you can focus on getting the job done.

Cladding rectification agreements – Sale and Purchase – VIC

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Amendments to the Local Government Act 1989 mean that solicitors acting for buyers and sellers of real estate now need to take into account any charges recorded against the property relating to funding for cladding rectification.

Concern about defective cladding used in the construction of high-rise residential buildings has resulted in the government adopting a legislative solution intended to provide some solace to unit owners who are faced with rectification costs, but it also has an impact on third-party purchasers of such properties.

Responsibility for administration of the solution has been allocated to municipal Councils, with a new Part 8B inserted into the Local Government Act 1989, which came into operation on 30 October 2018. This authorises Councils to enter into a ‘cladding rectification agreement’ with the owner of rateable land, or an Owners Corporation, and a lending body – presumably a conventional financier. Council may also be the lending body, but it is difficult to imagine, in the short term at least, that Councils will assume this role. Thus, the standard agreement will be tripartite, between the owner or Owners Corporation, the Council and a lender.

These agreements provide that the lender will advance the funds to pay the rectification works and Council will levy a charge on the land to recover the loan advance, interest and fees associated with the levy by instalments over a period of not less than 10 years.

Adjustment on purchase

In relation to the effect on departing and incoming owners, s 185L treats the cladding rectification levy as a ‘service charge’. Section 162 authorises the imposition of a service charge and s 185L (6) requires a cladding rectification charge to be paid by instalments. A vendor is obliged to disclose statutory charges pursuant to s 32A (b) of the Sale of Land Act 1962 and also charges ‘for which the purchaser will become liable in consequence of the sale’ pursuant to s 32A (c). Disclosure of current charges and any arrears may be achieved by annexing a rate notice, a land information certificate or giving an estimate, but the vendor is also obliged to disclose future liabilities due under the cladding rectification charge and information provided by Council will be crucial in this regard.

Any arrears under the levy will be the vendor’s responsibility, the current instalment will be adjusted between the parties at settlement and the outstanding levy will become the responsibility of the purchaser as a charge on the land: s 156 (6).

Section 175 allows a purchaser to continue to pay charges by instalments. A purchaser will therefore need to adjust the price to take account of the outstanding cladding rectification levy that the purchaser will become liable for and full disclosure in this regard is essential so as to allow the purchaser to set its price.

The Sale and Purchase commentary within the By Lawyers Conveyancing (VIC) Guide has been updated accordingly.

Author review – Conveyancing – Sale and Purchase – SA

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The By Lawyers Conveyancing SA Guide has been reviewed and updated to ensure that the commentaries and precedents are in line with current law and conveyancing practice, including electronic conveyancing.

The extensive review was performed by our author Jess Caire. As with all our authors, Jess takes a practical approach, drawing on her considerable experience to cover all aspects of procedure, with a focus on practical tips that will help solicitors and conveyancers confidently run a sale or purchase matter to completion. The sale and purchase matter plans cater for both ‘sale by agent’ and ‘private sale’ engagements.

We invite you to explore this updated publication and to consider the wealth of assistance the guide offers for solicitors and conveyancers acting in the sale and purchase of residential property in South Australia.

A full description of the sale and purchase process – Conveyancing – NSW

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By Lawyers is pleased to announce the publication of new reference materials within our Conveyancing Guides which provide a full description of the conveyancing process for both sale and purchase. These descriptions provide details on the procedure to follow when conducting a sale or purchase, using the precedents available in the By Lawyers Conveyancing (NSW) Guides, together with LEAP and InfoTrack.

The full descriptions follow the typical progression of a residential sale or purchase and include screen shots to assist with the procedural aspects of running the matter in LEAP. These descriptions are not intended to be a substitute for our comprehensive Conveyancing commentaries, or the detailed Matter Plans and To Do lists provided in our Guides – rather they are intended to be complementary, providing the user with more detailed explanations on the very practical aspects of running a conveyancing matter from start to finish.

Areas covered include:

  • How to open a file;
  • How and when to order quality and title searches;
  • How to create the contract with the correct order of documents;
  • How and when to enter matter information into LEAP;
  • Arranging an exchange;
  • Completing settlement figures and directions – adjusting council rates, water, sewerage, strata.
  • Preparing for settlement – both paper and electronic.
  • Post-settlement procedure.

While these new resources are ideally suited to those with little or no hands-on experience with conducting conveyancing matters, they will also be of benefit to those unfamiliar with running conveyancing matters in LEAP, or who need to step in and conduct a conveyancing file for another team member who is on leave.

Another great advantage provided by these full descriptions is the ability to delegate conveyancing tasks to junior staff and have them understand the conveyancing process without having to direct them every step of the way.

Like all of the practical resources in the By Lawyers Conveyancing Guides, these new reference materials provide firms not currently taking on conveyancing work the ability to do so easily.

TAS – transfer duty concessions

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New commentary and forms have been added to the Purchase of real property (TAS) Guide in relation to the availability of new transfer duty concessions for first home owners purchasing an established home and also pensioners downsizing to an established home.

First home transfer duty concessions – Established home

A 50% discount is available on transfer duty for first home buyers of established homes which have a dutiable value of $400,000 or less. The discount is available for purchases of established homes that settle within the period 7 February 2018 and 6 February 2019. The eligibility requirements are set out in full in our commentary. A link to the SRO form Section 46E Concession from duty -Transfer to first home buyers of an established home has been added to the matter plan.

Transfer duty concessions for pensioners downsizing

This concession provides a 50% discount on transfer duty for eligible pensioners who sell their existing home and downsize to another home (not vacant land) with a dutiable value of $400 000 or less (and also less than that of the former home). Both homes must be in Tasmania and the new home must be an established property.

The concession is available where:

  • the sale of the former home settles within the period 10 February 2018 and 9 February 2019; and
  • the purchase of the new home settles within six months before or after the transfer of the former home.

The eligibility requirements are set out in full in our commentary.

A link to the SRO form Sections 46N & 46O Concession from duty -Transfer to pensioner/s downsizing home has been added to the matter plan.

Purchase – VIC – Additional foreign purchaser land transfer duty exemption

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Information on this new exemption has been added to the Purchase commentary and 1001 Conveyancing Answers (VIC).

From 1 July 2018 additional duty will only apply to a contract or transaction for residential property for a foreign transferee where the following exemption criteria is not met:

  • The purchase of the residential property is completed jointly with a spouse or domestic partner who is an Australian citizen, permanent resident, or New Zealand citizen who holds a special category visa; and
  • The property will be used as their principal place of residence for a continuous period of 12 months, starting within 12 months of them becoming entitled to possession of the property.

This exemption is available for transfers from 14 June 2018.

 

GST withholding – how does it work?

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The new GST withholding obligations are discussed in detail in the By Lawyers Purchase commentaries for each state, under the heading ‘Withholding payment of GST on purchase of certain real property’.

By way of summary, from 1 July 2018 purchasers of new residential premises or potential residential land are required to withhold an amount of the contract price and pay this directly to the ATO as part of the settlement process.

This does not affect the sales of existing residential properties, or the sales of new or existing commercial properties. However, for all residential premises or potential residential land, if the the vendor is registered, or required to be registered, for GST then they must notify the purchaser as to whether or not GST withholding applies – even if it does not apply.

Where withholding applies, purchasers need to:

  • split the amount of GST from the total purchase price;
  • pay the GST component directly to the ATO as a disbursement at settlement;
  • pay the GST exclusive purchase price to the vendor.

The liability for the GST remains with the vendor and there are no changes to how vendors lodge their business activity statements.

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