News
MORTGAGE FRAUD & TITLES OFFICE CAVEAT
# Pre-Purchase Due Diligence & Buyer Beware # It's a homebuyer's worst nightmare … purchasing the dream family home and moving in, only to find out years later it was never really yours. After a six-year legal saga, an Appeal Court unanimously...
LEASE TERMINATION UNLAWFUL
COVID HANGOVER - Landlords who refused to negotiate COVID relief with their tenants for rent relief during the emergency response period remain at risk over demands on tenants to pay arrears or for having taken unlawful rent recovery action. Consider this account of a...
QLD RESIDENTIAL RENT INCREASE FREQUENCY NOW 12 MONTHS
Changes to limit rent increase frequency to once every 12 months came into effect for all new and existing tenancies on 1 July 2023. Rent cannot be increased unless it has been at least 12 months since the current amount of rent became payable by the tenant....
SUBSTANTIAL QLD DISCLOSER OVERHAUL PROPOSED
The Property Law Bill 2023 will replace the Property Law Act 1974 (PLA), introducing some of the biggest changes for the Queensland property industry in almost 50 years. It contains a new seller disclosure regime which will require sellers to disclose extensive...
ANOTHER ‘CHARACTER’ HOUSE DEMOLITION ALLOWED
The Qld Planning and Environment Court has yet again overruled Brisbane City Council refusal to allow the demolition of a supposed ‘character' house, in this instance for redevelopment into two lots. Judge Catherine Muir said in her judgement .. “As the above...
QLD LAND TAX CHANGES SCRAPPED
The Qld Govt has sensibly responded to massive property industry pressure to abandon its idea of including interstate landholdings in calculating Qld Land Tax. Queensland had passed a new tax law on 24th June that would allow the government to calculate land tax...
NO LEASE – NO RESUMPTION COMPENSATION
Business Owner-Occupier Alert. An Appeal Court has again confirmed that even if the owner of a property and the business therein are the same, the business may not be entitled to resumption compensation (relocation, loss of profits, etc) if there is no formal lease...
TOOMBUL TORRENT TERMINATES 140 TENANTS
Check your lease and premises for flood and damage risks. Following the catastrophic flooding of a major northside Brisbane shopping icon in February, the centre owners have now terminated all retail leases saying no compensation would be payable. The ASX-listed...
LIBERAL ESTIMATE – RESUMPTION COMPENSATION
A Qld Court has again confirmed that: Compensation should be ‘resolved in favour of a more liberal estimate.’ Where practicable, discretion should be exercised in favour of the claimant to achieve a just result. The Court’s function in assessing compensation is...
LEASE PREMISES DESCRIPTION – “SUFFICIENT CERTAINTY” ?
An Appeal Court has ruled that Leased premises need not be described with absolute precision to satisfy the test of “sufficient certainty”. The property concerned a three-storey commercial building with very high exposure on the corner of Chapel St and Dandenong Rd in...
LEASE RENT DETERMINATION INVALID
A Qld Supreme Court has ruled a Valuers Determination invalid for not properly interrupting the requirements of the Lease concerning the meaning of “immediate vicinity”,” suburb or town”. This case highlights the preference for Valuers to seek advice where such...
BAYSIDE ‘CHARACTER’ HOUSE DEMOLITION ALLOWED
Market Valuation of historic or character homes potentially subject to heritage type restrictions can be challenging. A successful Appeal against a Brisbane City Council refusal to permit demolition, provides some further clarity. The central issue was whether the...
RETAIL SHOP LEASES LEGISLATION PREVAILS
An Appeal Court has confirmed that a ‘retail premises lease’ cannot cease to be a retail lease even if the initial criteria that qualified it as falling under the legislation, may change during the term of the lease. Key issues included the annual occupancy cost...
COURT REJECTS ‘EXPERTS’ REPORT
A Supreme Court has again highlighted the requirements for experts (including Valuers) when providing evidence. This case involved a comprehensive report prepared by a team of environmental consultants considering damage arising from potential metal toxification of...
LEASE TERMINATION DEMOLITION CLAUSES
A NSW Appeal has overturned an earlier ruling about whether the Landlord had a genuine proposal to terminate a lease for demolition purposes. Whilst Retail Leases legislation varies from State to State, there are similar provisions concerning lease termination for...
ANOTHER LEASE INCENTIVE RECOVERY FAILURE
A lease dispute involving Melbourne’s famous Hopetoun Tea Rooms in the iconic Block Arcade is yet another reminder of perils associated with lease incentives. Whilst this was a complicated involving other matters, the VCAT Tribunal essentially followed the 2014 Qld...
NO RESUMPTION COMPENSATION FOR BUSINESS LESSEE (again)
A Court of Appeal has overturned the $2M loss of profits resumption compensation previously awarded to the Lessee of a small long-established highway roadhouse largely because of an oral arrangement that included an expectation of renewal based on the relationship...
VALUE OF LEASE INCENTIVES SCUTTLES $81.2M DEAL
An argument over how the value of lease incentives should be treated in the settlement documents ultimately torpedoed the contract of a commercial office complex opposite the Royal Brisbane Hospital. It highlights how lease incentives can potentially have unforeseen...
NO RESUMPTION COMPENSATION FOR DECIMATED LESSEE
A neighbourhood supermarket business at Murrumba Downs was decimated by resumption roadworks and claimed for compensation. After lower courts ruled YES-NO-YES, the High Court finally said NO. The courts considered the applicable provisions of the Land Title Act 1994...
FLOUR MILL DEAL DUSTED
The issues of (1) properly disclosed site contamination and (2) a subsequent value fall 30% below the purchase price, were pivotal in the high-profile dispute over an iconic Brisbane development site sale. Queensland's Court of Appeal confirmed the initial award of...
BODY CORPORATE UNPAID LEVY TIME LIMIT
Qld Body Corporates breathed a collective sigh of relief when an Appeal overturned a ruling concerning time limitations for commencing proceedings to recover levies and penalties under body corporate legislation i.e. Section 145 of the Body Corporate and Community...
DUE DILIGENCE DEBACLE
A damages award of $1.127m has been set aside on a principle of law concerning duty of care after a purchaser relied on a Council issued defective town planning certificate that contained wrong zoning and real property description. The circumstances and initial...
RETAIL LEASE PERSONAL GUARANTEE DISASTER
The potential catastrophic consequences of Lessees providing personal Directors guarantees has again been highlighted in an instance where the owners of a failed fresh fruit and vegetables retail shop were ordered to pay $3.5m. The shopping centre Lessor agreed to...
INVESTMENT PROPERTY LEASE W.A.L.E.
W.A.L.E. is a relatively new benchmark adopted by the Australian property investment industry. Obviously, it’s not a mammal, so what does it mean? Simply put, it is yet another benchmark by which to compare investment property value. The Property Council of...
DEFECTIVE TOWN PLANNING CERTIFICATE DAMAGES
The loss in value arising from a central QLD Council issuing an incorrect planning development certificate AND the loss in value caused by a falling market were some of issues arising from a buyer believing the property had industrial zoning when in fact it was rural...
NEW RULES FOR RETAIL SHOP LEASES
The Retail Shop Leases Act 1994 (Qld) legislation was overhauled 25 November 2016, ten years since the last revision, with numerous amendments that will have significant impact on lessors, lessees, legal advisers, leasing /managing agents and specialist retail...
AirBnB SUB-LETTING BREACHES LEASE
This case generated widespread interest in the media and property community. The Court’s decision clearly established a general principle that a short-term AirBnB stay CAN be a lease in breach of the Residential Tenancies Act without the written authorisation from...
NEW BUILDING ENERGY EFFICIENCY PROPOSALS
The June 2016 decision by the Federal Government to expand the Commercial Building Disclosure (CBD) scheme and the Equipment Energy Efficiency (E3) will lower the requirement for most sellers and lessors of commercial office space from 2,000 to 1,000 square metres....
A DEAL’S A DEAL – do your homework
The lack of pre-purchase due diligence was no defense in an off-the-plan purchase of a Surfers Paradise $16.85m penthouse, again highlighting the need for buyers to seek professional valuation and legal advice before signing the dotted line. It also serves as a...
LESSEE FITOUT IN MARKET RENTAL VALUATION
Lessee’s fitout is usually not included or contested in an assessment of premises rental value. This matter included an obligation on the Lessee to spend a minimum of $1 million on fitting out the leased premises which comprised an iconic commercial building in the...
BEWARE ACCESS CONSENT Statutory Right Of User
Property owners should be wary of allowing others to access their property. The often-forgotten statutory right of user powers to acquire formal rights over adjoining land were awarded in two recent cases. Land owners are often shocked to learn that neighbours can...
LEASE BREACH VOIDS OPTION
A lessee was refused exercise of option after it was deemed to have breached lease terms and conditions. An Appeal Court overturned an earlier decision after considering issues of unauthorized underletting, failure to keep the premises clear of termites, CPI rent...
RENTAL DETERMINATION VOID
This rental dispute highlights that tenants and landlords cannot contract outside the law (Retail Shop Leases Act Qld), even with agreement between the parties to a particular procedure. The parties to a Surfers Paradise restaurant shop lease were unable to agree on...
NEW RESIDENTIAL CONTRACT LAWS – BUYER BEWARE
PAMDA is dead, long live four new Acts … including the Property Occupations Act 2014, where the new rules have substantial impacts on most residential sale contracts including: The vendor or their agents no longer have to provide a purchaser with a Form 30c, which...
LEASE INCENTIVE CLAWBACK VOID
The dangers of Incentive Deeds separate from a Lease have been highlighted by a recent $1.2M claim against Lease guarantors. A legal firm leased office premises November 2010 at a rental just under $800K pa, but by mid 2013 the premises were abandoned and the firm in...
BETTERMENT v DISTURBANCE – RESUMPTION COMPENSATION
A pioneering Appeal Court decision has confirmed that resumption compensation for “Disturbance” cannot be reduced even when the resumption increases the value of the remaining property through “Betterment”. Disturbance refers to consequential costs considered...
DIFFERENTIAL RATES WIN FOR PROPERTY INVESTORS
The rampant pillaging by Qld Councils of non-voting ratepayers has been partially checked following a milestone Supreme Court ruling last week. Unlike other States, Qld Councils have few limitations to plunder at will in a blatant political vote-buying strategy of...
MARKET VALUE -v- FORCED SALE
A high profile Sydney court battle highlights the inherent conflict between the industry adopted meaning of “Market Value” and a Mortgagee’s duty under Section 420A of the Corporations Act when undertaking a “Forced Sale”. The Act requires in exercising a power of...
LIQUIDATOR CAN INVALIDATE LEASE
The High Court has just confirmed that a Liquidator of an insolvent Lessor company has the ability to disclaim a lease agreement thus extinguishing Lessee rights. Tenants in this scenario may have their tenure reduced akin to an unsecured creditor. Implications are...
UNIT BUYERS BEWARE
From today 01 August 2013, amendments to the Body Corporate and Community Management Act 1997 (BCCM Act) take effect. Buyers will now need to conduct more thorough due diligence because sellers are no longer required to provide: • a copy of the Community Management...
PROPERTY INVESTMENT SPRUIKER SCAMS
Despite repeated ‘in your face’ warnings to seek independent valuation, investment & legal advice, there seems a ready supply of ‘suckers’ available for plucking by shoddy spruikers selling overpriced units/ townhouses promising returns that are usually not...
LAND VALUE CONCESSIONS BENEFIT SELECT FEW
The next time you are passing a house on a large block in a built up location or a small farm in the suburbs, chances are that you’re subsidising their Council rates and State land tax … enjoy. Here's why .... A 2012 token review of the Land Valuation Act (VLA) has...
LESSEE WINS RESUMPTION COMPENSATION
A benchmark Appeal Court decision has awarded lease relocation costs after it was refused because the tenant remained in occupation after resumption. Interpretation of Sec 18(3) Acquisition of Land Act was the key issue. The Department of Transport and Main Roads...
DIFFERENTIAL RATING – LEGALISED ROBBERY??
The willingness of QLD Local Councils to indiscriminately pillage the very industries that are the lifeblood of their local economies though the discriminatory differential rating regime has achieved to new heights (or lows) in the latest round of 2012-13 Council...
WHALE BOAT BREACHES QUIET ENJOYMENT
A dispossessed tenant has been awarded $100K in damages primarily from the obstruction of panoramic waterfront views over the Hervey Bay marina. The restaurant business declined significantly, the rent fell into arrears, and the landlord took possession. The decision...
MANAGEMENT RIGHTS (& WRONGS) REVIEW
QLD has an obsession for a “paper tenure” that can turn as toxic as GFC derivatives. A body corporate investment can mutate into a living hell when disputes between managers and unit owners arise. These property rights emerged in the 1970s as a fledgling cottage...
LESSEE ASSIGNOR RELEASED OF OBLIGATION
Surrender or Extension were the key arguments when a large Surfers Paradise centre owner was unsuccessful in pursing a former Lessee owner of a newsagency premises that were assigned to a subsequent purchaser of the business. This matter involved complex legal issues...
COURT AWARDS BOUNDARY WALL ACCESS
The outcome of a dispute between two canal property owners is a reminder of the “statutory right of user” powers available to acquire tenure over adjoining property. It also sets a nominal compensation precedent potentially applicable to similar scenarios. The...
RETAIL SHOP LEASE CHANGES 2011
The year starts with significant changes impacting all leases falling under the Retail Shop Leases Act, 1) new lessor disclosure requirements and, 2) ratchet clauses to be outlawed again. Lessor Disclosure Requirements QLD, NSW & VIC have got together to...
NEW “SITE” VALUE FOR RATES & LAND TAX
The new Land Valuation Act (LVA) 2010 is a momentous departure from the previous system. The 66 year old dogma of unimproved land value is now replaced by site value as a basis of calculating Council General Rates and State land Tax for “non-rural” lands in...
LEASE BREACHED WHEN MAIL NOT POST
The Qld Supreme Court of Appeal unanimously overturned a lower decision, ruling a Lessee (Aust Post) was in breach of lease conditions concerning sub-letting and works without approval. The matter covers a range of connecting issues including permitted use, related...
GOVT OVERRIDES COURTS, CHANGES RULES
Our warning last year about rising property taxes grossly underestimated the now apparent Stalinist determination of the current state government to ride rough shod over 70yrs of established case law and valuation principles. Just before midnight 11 February 2010,...
OPTION DEAL DONE DIRT CHEAP
The painful consequences of getting an option renewal procedure wrong have again been highlighted recently where a tenant secured a 10 year option at around 50% the claimed market rental. The case also highlights the potential benefits of regular market rent review...
RESUMPTION BY STEALTH & DECEPTION
There seems a growing ‘new breed’ within in some Govt circles that callously disregard the trauma and loss caused by compulsory acquisition, particularly the threat of it. Two major issues are (1) the stand-over tactics used to force owners to settle compensation...
ROCKETING RATES & LAND TAX
A toxic mix of black-hole State and Council budgets, new legislation, aggressive valuation policy, & Land Tax ‘sleeper’ provisions, is producing a property tax explosion … and it’s only the tip of the iceberg. Both State and Local governments have business and...
RATCHET RENT RULING BLOW FOR TENANTS
In a split 2-1 decision, a Court of Appeal has ruled that rent “ratchet” clauses are valid in leases falling under the Retail Shop Leases Act. Such clauses artificially prevent rental from falling even though this may be indicated by a market review or CPI index....
MANDATORY BUILDING EFFICIENCY DISCLOSURE LOOMS FOR SALE AND LEASE
Energy efficiency disclosure is rapidly moving from the concept stage to statutory enforcement affecting both owners and tenants. The proposed scheme and Federal legislation will be phased in starting next year. Federal Environment Minister Peter Garrett has released...
NEW RESUMPTION COMPENSATION LAWS
The 23 February 2009 amendments to the Acquisition of Land Act 1967 are the most significant overhaul of resumption and compensation law in Queensland since the Act commenced in 1967. Major changes include: • clarification of who can claim for compensation • new...
TENANTS TO PAY LAND TAX IN QLD
From 01 July 2009, landlords of non residential and non Retail Act properties (about 95% of all commercial and industrial property) will be able to recover land tax from tenants. The Qld Government has released for consultation the draft Land Tax and Taxation...
LEASE MISUNDERSTANDING NO LET OFF
Ensuring that both parties are fully aware of Lease conditions is essential to good relations; otherwise there can be some unwelcome surprises. This matter concerned a 2 level commercial business premises at Newmarket leased for 8 years from Sept2007, for a gross...
Frankenstein Rating & Land Tax Valuation Laws
In March 2008 the Queensland Government rammed through amendments to the Valuation of Land Act via a “guillotine” debate. This was supposedly in response to a Land Court ruling involving the Chermside shopping centre. DERM had been adopting an aggressive...