General

Noisy neighbours: where to start!

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Noise is a major instigator of disputes between neighbours. Whether it be a loud party with music blasting into the early hours of the morning each and every weekend, consistent yelling throughout the days or inconsiderate mowing of the lawn disrupting the sacred Sunday sleep in, noise disputes arise in an abundance of situations and can be difficult to approach.

Noise is legislated under the Protection of the Environment Operations Act 1997 and is defined to include both vibration and sound. The Act makes provision for “offensive noise” being noise that is harmful to a person outside of the premises emitting noise, or noise that interferes with the response or comfort of a person outside of the premises in an unreasonable manner. In order to determine whether noise falls into this definition, the nature, quality, character and level of noise is to be considered.

Despite some noises being specifically prohibited under Regulations that Police and Local Council govern, neighbours can be uncertain about how to approach noises that don’t easily fall into this category. So what do should you do?

1.     Raise your concerns with your Neighbour in a pleasant manner

Whilst one of the simplest options, it may be overlooked to have a pleasant conversation with your neighbour. Noise issues may be simply resolved and neighbours may then be made aware of the impact of their behaviours.

2.     Mediate

In the event that your neighbours don’t respond in the reasonable manner you hope for and the problem continues to persist, you can engage a mediator (being a neutral third party) to assist in resolving the dispute. This gives the neighbours an opportunity to talk with each other and clarify their position on the dispute, talk and be heard. The mediator then can help the neighbours develop options that may resolve the dispute, that perhaps parties had not yet considered.

3.     Consider a Noise Complaint

If the noise continues and your neighbour is unwilling to compromise or reduce their noise, a complaint can be made to Police or the Local Council.

Whilst this may be a person’s first consideration, it should be considered whether the noise and “offense” arising from the noise validates potentially deteriorating the relationship you have with your neighbour. It is essential to remember that whilst some activities can be noisy or annoying, neighbours will continue to reside near you and some things can be tolerated rather than inflaming a situation which could worsen.

4.     Apply for a Noise Order

As a matter of last recourse, a person is able to make an Application in the Local Court addressing the noise and seeking a binding, enforceable Order that the neighbour stop or control a certain type of noise. This is known as a noise abatement order. Essentially, the neighbour will be prohibited from breaking the Order and could face legal consequences for the breach.

If you require advice on how to approach a neighbourhood dispute, would like further information on mediation avenues, have queries about noise complaints or require representation to respond to a noise complaint, Coutts has the experience to assist you. To receive personalised advice on your particular issue, please contact (02) 4647 7577 to book an initial appointment with our Disputes Resolution Team.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

NSW Drink Driving Rules

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COMMENCING TODAY, the new laws surrounding drink driving have come into effect.

Under the new rules, ALL people caught drink driving, or driving with an illicit substance present in their blood, will lose their licence on the spot and be issued with a fine. This includes low range drink drivers, with a minimum fine of $561.

The blood alcohol limit for full licence holders, whether you drive a car or motorbike, is under 0.05.

For professional drivers, including bus drivers, taxi drivers, and heavy vehicle drivers, the blood alcohol limit is 0.02.

Learner and P Plate drivers must have a blood alcohol limit of zero.

These new laws are a key priority of the Road Safety Plan 2021. The Road Safety Plan is targeted at providing safer communities and safer country roads by utilising current technologies and implementing harsher penalties for drink and drug driving. 

Be sure not to drink drive or drive whilst under the influence of an illicit substance. If you find yourself in trouble with the law, contact our Criminal Law Department on (02) 4647 7577 or contact or 24 hour criminal law hotline on (02) 8324 7527.

If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What Do The Different Types Of Property Ownership in NSW Actually Mean?

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Whether you are buying your first home or a commercial investment property, it is important to have an understanding of the more common forms of property ownership used within New South Wales. Different title types have regulations unique to their form and can have varying charges attached to them. Knowing the difference can assist you to make an informed choice before buying property.

 

Torrens Title

Torrens Title is the most common form of property ownership in New South Wales. Also referred to as Freehold Title, this system of ownership was introduced in 1858. Torren Titles are registered with the state government and providing there is no mortgage on the property, the land is completely owned by the persons registered on the Certificate of Title (also known as a ‘Title Deed’). If there is a mortgage on the property, the mortgagee generally holds the Certificate of Title as security until the loan is paid. Your name as the owner will appear on the Certificate of Title but the mortgage will also be registered here to show the interest the mortgagee has in the property.

 

Old System Title

Property ownership of this kind dates back to when New South Wales was first colonised in 1788. Because Australia was colonised by the English, the system used to track property ownership also came from England. Old System title uses a system of registration that uses a separate document every time the land is purchased by another party. As the number of transactions in relation to the property increases, so does the number of documents attached to the title of the property. This way you can see the paper trail of how the property has passed between people. It is very common for Old System Title documents to go missing because of this. Like Torrens Title, owners of Old System Title own the interest in the land completely. It is now uncommon to own property this way as it has been replaced by Torren Title however, it is still possible.

 

Strata Title

Strata Title is very common when looking at apartment blocks, units and town houses. Owning a property under a strata arrangement generally means that you only own part of a building and have shared interests with other owners of the strata complex in regards to common property such as gardens or stairwells. For example, with a unit, this means that you generally own the inside of the unit but not the outside walls or fixtures as they are generally deemed common property. It is very common for strata properties to be run by a strata management company who control the upkeep, maintenance and finances for the common areas. If you purchase property that is a Strata Title you will generally be required to make quarterly payments into the sinking fund and administrative fund for your share of the common property on a continuous basis.

 

Leasehold

Leasehold arrangements generally apply to government owned land. With this type of arrangement, you do not own the property outright but instead lease it for an extended period of time, generally 99 years. As the lessee, you will be entitled to occupy the land for that entire period. When entering into this arrangement, there is an initial cost for the Leasehold arrangement (negotiated between the parties) as well as annual rental payments. Terms and conditions for Leasehold agreements vary.

 

Community Title

Community Titles are most often used for large development lots and for gated estates. It has some similarities to Strata Title but generally it is the property owners that are jointly responsible for maintaining the properties. Instead of a strata company, there is often a residence committee or a manager that ensures the upkeep of the property. Community Title schemes generally maintain their own roads, gardens and garbage facilities (including collection). Whilst Community Title owners still receive service from their local council, they are often limited. Buying into a Community Title arrangement, like Strata Title systems, require continuous payments in order to account for your share of the upkeep. 

 

When purchasing property under any of these schemes, it is important to speak to a conveyancer or lawyer with Property Law experience to help you understand the complexities and requirements under each kind of title. If you need further information or assistance please contact:

Carrie Alton
Lawyer  
carrie@couttsmallikrees.com.au
02 4036 3307

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Justice of the Peace @ Coutts

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Have you ever needed a Justice of the Peace? Have you ever found it difficult to find a Justice of the Peace?

 

Believe it or not there are over 95,000 Justices of the Peace across the state of New South Wales. It’s surprising to hear considering how difficult it can be to find one in an urgent situation.

 

A Justice of the Peace is a volunteer who can:

  • witness documents, like statutory declarations or affidavits; and

  • certify copies of original documents, like drivers licences

 

A Justice of the Peace helps a variety of people at important times in their lives. They help people like those that are purchasing a home and those who are going to court.

 

The NSW Government has announced an upgrade to the current Justice of the Peace website. The upgrade will:

  • Make it easier for you to find a Justice of the Peace

  • Make it easier for you to find details on when and where a Justice of the Peace will be available. The website will contain dates and times a Justice of the Peace is available, as well as provide you with their contact details

  • Contain information about what languages the Justice of the Peace speaks. This is aimed to assist a range of people and communities by enabling people to search for a local Justice of the Peace who speaks their language

 

The upgraded website will launch early 2019 and is set to save you a lot of time. No more calling around or dropping into various businesses, only to discover they aren’t in or aren’t available.

 

At Coutts we offer Justice of the Peace services at each of our office locations. Please refer to our website or give us a call to confirm what times our Justice of the Peace services are available.

 

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Retirement Villages – Helping You To Make Informed Decisions

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Moving into a retirement village is not an investment choice, it is a lifestyle choice and can be a very exciting time. Living in a private and secure environment with people of a similar age are just some of the reasons why the move may be a positive change for you. However like any other major life decision, there are a great many things to consider before signing an agreement. From a lawyers perspective, Carrie outlines some of the things you should think about when considering moving into a retirement village.

 

What is a retirement village?

A retirement village is a residential complex where the people that live there have entered into a contract with the operator of the village, either to live in the premises and/or to receive other services that may be available. It is important to remember that support services and facilities available in villages can differ depending on the provider and you should visit multiple providers to find what best works for you.

 

Within the retirement village framework there is a variety of accommodation types available including:

  • Self-contained premises for people who are able to live independently;

  • Serviced living arrangements (also known as assisted living apartments) which also provide cleaning meals and other needed services; and

  • A mixture of both which allows those who live there to take on services as the need arises.

 

What laws apply to retirement villages?

In New South Wales the main legislation that applies to retirement villages is the Retirement Villages Act 1999 and the Retirement Villages Regulation 2017. It is important to note that this does not include or cover nursing homes. This legislation sets out what is required of the operators and the rights of the residents, what information should be provided to people interested in living within their facilities, explain how and when the contract can be ended and set out the process of entering into a village contract.

 

Types of village contracts

In New South Wales there is a variety of contract types used by retirement village operators to engage new residents and manage their facilities. Some of the contractual arrangements used are:

  • Loan and Licence Arrangements – this option is generally used by not for profit organisations such as a church that owns a village. In these circumstances you pay a contribution going in to the facility in the form of an interest free loan in return for the right to occupy the premises. You may also pay recurrent fees. You do not own the unit or have a registered interest in these arrangements;

  • Leasehold Arrangements – this is where the operator owns the residential property and you as the resident lease the property. The lease is registered on the title deed which provides you with some extra protection if the retirement village is sold. The amount you pay depends on the village you choose and the market. When you leave you may be required to pay a departure fee;

  • Strata and Community Schemes – this type of arrangement has many similarities to standard strata schemes where you will be a member of the owners corporation or community association and be required to pay levies to cover the cost of managing the property. However, unlike these schemes, you will be required to enter into a service contract with the operator before you can move in; and

  • Company Title Schemes – Some, although very few privately run villages may also use this scheme. The village is owned by a company and instead you purchase shares at market value which in turn give you the right to occupy the premises. A Board of Directors which are appointed by the shareholders run the village.

 

Things you should consider

There is a variety of things you should consider before entering into an agreement with a retirement village. Some of these include:

  • Seek expert advice from a lawyer before making a commitment. A solicitor can go through the contract, explain your rights and requirements of you if you choose to enter into an agreement with a retirement village;

  • Think about the type of village you want to live in and what you can afford on a continuing basis;

  • Visit the village and get a feel for the culture of the community to make sure it is a place you are happy to live; and

  • Read and understand the policies of the village on guests and pets look into the health and lifestyle programs available at the facility.

 

You are more likely to make a decision that suits your needs and lifestyle choices if you are well informed and seek advice from the very outset of your journey into a retirement village.

 

If you need further information or assistance in navigating your rights and responsibilities or understanding the contract please contact:

Carrie Alton
Lawyer  
carrie@couttsmallikrees.com.au
02 4036 3307

Add-on insurance products for motor vehicles - are you entitled to a refund?

In January 2018 the Australian Securities and Investment Commission (ASIC) announced, following a major investigation, a number of large insurance companies had agreed to reimburse around $100 million in insurance premiums obtained from the purchasers of new motor vehicles.

The 3 largest insurers who have agreed to provide refunds are:

·      Allianz which has agreed to reimburse $48 million to around 110,000 customers;

·      Swann Insurance which has agreed to reimburse $37 million to around 68,000 customers; and

·      Suncorp which has agreed to reimburse $17 million to around 54,000 customers.

The refunds relate to insurance premiums paid by customers for various motor vehicle “add-on” insurance products (sometimes called “car-yard insurance”) purchased through motor vehicle dealers. The refunds do not relate to premiums paid for mandatory CTP insurance or property damage insurance.

 

Types of add-on insurance products where the refund may be available

The types of add-on insurance products where refunds may be available include:

·      Guaranteed Asset Protection (GAP) insurance which covers the difference between the amount a customer owes on their vehicle loan and the amount the vehicle is insured for under comprehensive car insurance, in the event the vehicle is written off;

·      Loan Protection Insurance (LPI) or Consumer Credit Insurance (CCI) which covers some of the repayments under a customer's loan contract if the customer dies, suffers a serious illness or becomes disabled or unemployed;

·      Loan Termination Insurance (LTI) which covers the difference between what a consumer owes on their vehicle loan and the market value of the vehicle if the customer returns the vehicle because they cannot make the loan repayments because of illness or injury;

·      Tyre and Rim Insurance (TRI) which covers the cost of repairing or replacing a vehicle’s tyres and rims if they are punctured or suffer a blowout; and

·      Extended Warranty Insurance (EWI) or Mechanical Breakdown Insurance (MBI) which provides cover for some vehicle repairs once the manufacturer’s warranty has expired.

 

Little or no value from motor vehicle add-on insurance products

Following its investigation of vehicle add-on insurance products, ASIC found that they largely provided little or no additional value to consumers and that:

·      only a very small percentage of the total premiums collected by insurers were being returned to customers in the form of claim payouts (ie approximately $1.6 billion was collected by insurers with only $144 million paid out to customers for insurance claims – a return to customers of about 9 cents in the dollar);

·      the policy wording of some of the additional insurance products made it impossible for customers to make a claim;

·      customers were often sold a higher and more expensive level of insurance cover than what was required;

·      some of the insurance products provided cover which already existed under a comprehensive insurance policy which the customer had purchased.

ASIC also found that there were many cases where motor vehicle dealers had not properly explained the coverage or value of the insurance products. Often, customers did not understand what they had been sold - or that the cost of the insurance was included in the lump-sum purchase price of the vehicle. In nearly all cases, the insurance products were not requested by customers – but sold at the recommendation and insistence of the dealers.

ASIC was also critical of the commission arrangements in place between the dealers and insurance companies and the incentive this creates for dealers to “over-sell” insurance products. The data obtained by ASIC showed that dealers received in commissions about 4 times more than customers received in insurance payouts.


Refunds to be provided

The premium refunds to be provided by vehicle insurers are targeted to address those situations where the add-on insurances were unwarranted and were of little or no value to the customer. The insurers have also agreed to pay interest on some of the refund amounts as, in most cases, the additional premiums were paid as part of the vehicle’s lump sum purchase price.


Prospective changes in the law

As a result of the issues identified by ASIC, there has been a range of responses from the insurance industry and government including:

·      insurers changing their practices and procedures in relation to the sale of “add-on” insurance products to ensure that unnecessary insurance products are not sold to consumers and better disclosure is provided;

·      insurers changing their commission arrangements with motor vehicle dealers;

·      the Commonwealth government preparing draft legislation which will require insurance companies to identify an appropriate target market for their insurance products to ensure that they are being sold to the right people;

·      the possible introduction of a “deferred sales model” for some insurance products. This will mean that a motor vehicle dealer will be prohibited from selling some insurance products within 30 days of the date of purchase of the vehicle (a similar law applies in the UK). 

Summary

Around 250,000 customers around Australia may be entitled to premium refunds for “add-on” insurance products purchased with new motor vehicles.

You should check your motor vehicle purchase contract and other documentation to see if you may have purchased add-on insurance for your motor vehicle and whether you may be eligible for a premium refund. If you cannot locate the relevant documents, then you should request a copy from your motor vehicle dealer or insurer.


At Coutts, we can assist you with the process of considering whether you may have a claim for a premium refund and the nature and extent of such a claim.

What is in a name? - Contract for Sale of Land

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What is in a name? 

Getting your name right on a Contract for Sale of Land is important.

When buying property it is important to know who the buyers will be.  Sounds obvious right?  What buyers do not often realise is that exchanging contracts under their personal names and then changing that later to a company name will incur double the stamp duty.  Now that is a large sum of money!

Sale of Land

For personal names, check that the correct name, including any middle name, is on the contract. If you are purchasing in a company name, make sure that the company exists and is incorporated at the time of purchase.  This will prevent you from having to pay extra stamp duty later.

In addition, if you are thinking of purchasing a property in your Self Managed Super Fund, you would generally have a Trustee for the Super Fund. If the Trustee is a Company, it is very important that it has been created and incorporated as a Company prior to the purchase of the property.

Before signing a contract, always make sure the entity exists.