NSW New Home Grant Scheme

Mountain Home Under ConstructionAre you considering buying a new home? Are you planning on purchasing a block of land? Did you know you may be eligible for a NSW New Home Grant?

From 1 July 2012, a NSW New Home Grant is available to people buying new homes, whether they are newly built or off the plan purchases.

A $5,000 grant is available to the purchaser(s) of new homes (either off the plan or already built) with a value up to $$650,000. The $5,000 grant is also available to the purchaser(s) of vacant land, which is intended to be the site of a new home, with a value up to $450,000.

What does this all mean?

The following types of agreement or transfer are eligible for the grant:

  1. Purchase of a new home. This is an agreement or transfer of a property that is the site of a new home that is complete, and ready for occupation.
  2. Off the plan purchase. This is an agreement or transfer for the purchase of land intended to be used as the site of a new home. The new home is built before the completion of the agreement.
  3. A vacant land purchase. This is an agreement or transfer for the purchase of vacant land that is intended to be used as the site of a new home. This is not an off the plan purchase.

Under the previous first homeowner scheme, applicants were required to be a first time purchaser, and purchasing or building a new home.

Now, a purchaser could effectively purchase 5 off the plan homes, under the value of $650,000 and be entitled to 5 x $5,000 grants. There are no restrictions on the number of times you apply for the grant, so long as there is one grant per eligible property.

Eligibility

If a house is purchased off the plan, and a grant is received for that particular property, and subsequently sold prior to completion, there will be no further grant for that same property.

Further, if you knock down your existing home, and rebuild on the same parcel of land, this will not qualify for the grant.

The Office of State Revenue outline the following requirements to be eligible for the grant:

  1. The agreement for sale or transfer of a new home or vacant land will only be eligible for the grant if entered into after 1 July 2012.
  2. The new home must not have previously been occupied, or sold as a place of residence. A substantially renovated home may also be eligible.
  3. An agreement or transfer is eligible if it is for the acquisition of a new home that is complete and ready for occupation.
  4. For vacant land, construction must commence with the laying of foundations within 26 weeks after the agreement or transfer is completed, or within any longer period allowed by the Chief Commissioner.
  5. Applications for the grant must be made within 3 months of the date of the agreement or transfer (when there is no preceding agreement).
  6. The agreement or transfer must be for the whole of the land. If the land is a parcel of land on which two or more homes are built or a being built, the agreement or transfer must be for that part of the land that is an exclusive occupancy.

Who can apply for the grant?

The grant is available to any natural person, a company or trustee of a trust.

Foreign residents can apply for the grant, however, they would need to meet the requirement of the Foreign Investment Review Board regarding investing in Australia.

Owner occupiers and investors are also eligible to receive the grant.

How do I apply for the grant?

  1. You must submit an ‘Application for New Home Grant’ form within 3 months of the date of the first execution of the agreement or transfer.
  2. Documentary evidence to verify the purchase.
  3. Submit the documentation and application with certified copies of Identification such as: drivers licence, Medicare card, passport etc.
  4. If there is more than one eligible agreement, or transfer, a separate application is required.

There are also a number instances where the grant may not apply. So, if you are considering obtaining a grant, or even purchasing a property, contact our property law team at Anderson Boemi Lawyers for more information!

 

 

How long do I have to wait before I can get a divorce?

DivorceIn Australia there is a requirement that you cannot get a divorce until you have been separated for 12 months (one year).

It is not uncommon that parties remain separated whilst under the same roof. If this is so in your circumstances, it will be necessary to satisfy the court that whilst living under the one roof, you were in fact separated.

At Anderson Boemi Lawyers, we can assist in preparing the necessary supporting affidavits which will be required by the court.

Not providing these affidavits, will lead to your matter being adjourned until the court is satisfied on the “living arrangements” whilst you were separated.

What is a Property Settlement?

If you have recently separated or are considering separating, it will be necessary to do a property settlement. A property settlement is not a divorce.148441916

A property settlement occurs when all assets and liabilities (including partner’s superannuation) is taken into account and it is determined how those items should be divided up amongst you and your estranged partner.

No two property settlements are ever the same. Listening to how a friend’s matter was resolved or determined is not necessarily a guide to what will happen in your situation.

When reaching a family law property settlement, many factors need to be taken into account. Such factors include the following:

– Each party’s financial contributions (pre-marriage, during the marriage and after separation).
– Each party’s non-financial contributions (pre-marriage, during the marriage and after separation).
– Each party’s contributions as homemaker and parent.
– Each party’s health; incomes; future earning abilities; child support being paid/received; the care arrangements for any children under the age of 18 years; party’s ability to find alternative accommodation.

The above factors are not an all encumbering list. There are “other” factors/considerations that are taken into account in certain instances.

Unfortunately there is no textbook answer to a family law property settlement, nor is there a table in the Family Law Act that says you own “X”, you were married for “Y” years and you have 3 children aged “A”, “B” and “C”, therefore your property settlement should be “XYZ…”

The team at Anderson Boemi Lawyers can give you the correct advice on how to reach a property that takes into account all the necessary considerations relevant to your situation.

Our firm prides itself on resolution not litigation. If you think we can be of assistance please call the office and make an appointment to see Marissa Boemi.

New Power of Attorney Forms

If you have made a Power of Attorney (POA) or are considering one, you should be aware that new forms in NSW are effective from 1 March 2014. The two new forms will replace the previous general power of attorney form.

The two new prescribed forms are the General POA form and the Enduring POA form.147313126

General POA v Enduring POA

A General POA may commence immediately, or by reference to a particular date or perhaps event. For example, ‘this General POA will be effective whilst I am overseas’. Signed acceptance by the attorney is not required.

An Enduring POA may commence as soon as the attorney accepts the appointment or perhaps when a Medical Practitioner considers the principal unable to manage their affairs properly. Signed acceptance is required by the attorney/s, so that they are able to acknowledge their responsibilities.

The New Forms

The new forms present a number of changes in comparison to the existing form.

  1. There are now two prescribed forms instead of the single form that was previously required.
  2. The new forms are more detailed. For example, allowing the principal to be more specific in relation to who is appointed as an attorney.

Should I make a new Power of Attorney?

We advise that a Power of Attorney using the old form, is still valid. However, there are some circumstances when a new Power of Attorney should be considered:

  1. If you have appointed more than one attorney to act jointly;
  2. If assets specifically gifted under your will are at risk of being disposed of by the attorney; and
  3. If your circumstances have changed, and your need to make a change to the person you have appointed as your attorney.

 

New Swimming Pool Requirements

Pool-safty-in-seven-hills-nswIf you are a property owner and the property has a swimming pool you must:

  1. Have your pool registered – this must be done immediately (this should already have been done);
  2. From 29 April 2014 you must have a valid certificate of compliance issued by either your local council or an accredited certifier.

If you are selling your property you must attach a certificate of compliance, and evidence that the pool has been registered, to the contract of sale.  If these documents are not attached to the contract of sale then purchaser has the right to rescind the contract after exchange.

If you are leasing your property, and the property has a pool, then from 29 April 2014 you must ensure the pool is registered; there is a valid certificate of compliance and the certificate of compliance must be given to the tenant.

Please contact our property lawyer Fiona Makisi to obtain further information on (02) 9653 9466.

What is a Habitual Traffic Offender Declaration?

The RTA will impose additional periods of disqualification on top of any disqualification period imposed by the Court if you have been convicted of three or more relevant offences within the last five years.

If this occurs, you will be declared a habitual traffic offender.

A ‘relevant offence’ is defined as any of the following:

–         Any offence under the Crimes Act 1900 involving death or bodily harm arising out of the use of a motor vehicle;

–         Drive recklessly/furiously/at a speed/manner dangerous to the public;

–         Drive negligently and cause death/gbh

–         Menacing or predatory driving;

–         Drink driving offences;

–         Refuse/fail breath/blood/urine/oral test

–         Alter breath/blood/urine/oral test

–         Aiding, abetting, counselling or procuring the commission of one of the above offences;

–         Drive at least 45km over the speed limit;

–         Drive unlicensed (2nd offence); or

–         Drive/make an application for licence while disqualified, suspended or cancelled.

The automatic period of disqualification imposed if you are declared a habitual traffic offender is an additional five years to commence at the end of your current court imposed disqualification period.

The Government introduced the concept of a habitual offender in 1998 to remove repeat offenders from the road to make the roads safer.

What can the court do if you are declared a habitual traffic offender?

If you are declared a habitual traffic offender, the court can make one of two orders:

  1. Quash the traffic offender declaration completely; or
  2. Allow the declaration, but reduce the period of disqualification to a period of at least two years, or alternatively increase the disqualification period (there is no maximum period, you can be disqualified for life!).

How to get a Habitual Traffic Offender Declaration quashed

You or your lawyer should address the fact that you will be declared a habitual offender when you are being sentenced for your third relevant offence and ask the Court to quash the declaration at that time.

The Court may refuse to do this, and direct you to make an application at the end of your Court imposed period of disqualification.

If this happens then you should apply to the Court to quash the habitual offender declaration just before your current period of disqualification is due to expire.

Alternatively, the Court might quash, or reduce the declaration (two years is the minimum period) there and then.

To quash the declaration, you must show that the disqualification imposed as a result of the declaration is a disproportionate and unjust consequence in light of your total driving record and any special circumstances of your case.

If you have been declared a habitual offender, or think you may have been charged with your third ‘relevant’ offence contact our experienced criminal law team today on (02) 9653 9466 to maximise your chances of having the declaration quashed.

What can you do if someone owes you money?

If someone owes you money and refuses to pay, there are a number of options available to you.

Firstly, a Letter of Demand should be sent to the debtor. This provides evidence of the debt and can warn the debtor that if they fail to contact you within a specified time (we usually recommend fourteen days) then you will initiate Court proceedings to recover the debt.

If the Letter of Demand is ignored you should consider commencing court proceedings. You should first think about how much the debt is, how much you would accept to settle the debt, whether the debtor has any money (or assets) available to pay the debt and the costs and time required to recover the debt.

A Statement of Claim is the first document you file with the Court outlining details surrounding the debt owed to you.

The defendant debtor may file and serve a defence in response to your statement of claim. If so, the Court will list the matter for a pre-trial review when orders for the service of evidence will be made. Once all evidence is filed and served by each party a date for hearing will be set.

If a Statement of Claim is unanswered by the defendant debtor after 28 days of serving the document then you can apply to the Court for Default Judgement.

Importantly, there are strict rules relating to serving court documents, for example an individual must be “personally served”.  If you fail to effect service, then proceedings will be delayed further.

Default Judgement

Default Judgement is an order made by the Court in favour of the plaintiff (the person making the application) on the basis that the defendant has failed to file a defence within the 28 days allowed. So, by default, the plaintiff “wins” as the defendant has not answered the case against them.

The Court will consider the documents that have been filed and, if the claim is for a specific amount of money, will generally make an order for the defendant to pay the full amount claimed.

This is called Default Judgement and the order is made without the need for you (or your lawyer) to attend Court and argue your case.

Once judgement has been entered in your favour, either as the result of a  hearing, or by default judgement, you must then think about how to enforce the judgement.

Enforcing a Judgement

Often, the defendant debtor will pay the debt without further dispute once an Order is made against them. Sometimes, and despite a Court ordering payment, a defendant will ignore your demand for payment.

There are a number of actions available to secure the judgement debt.

1. Examination Notice

Serving an examination notice on a judgement debtor requires them to answer specific questions and produce documents relating to their financial status. The Notice must be filed with the Court and then served on the judgement debtor.

This is a fairly cost effective way of determining the financial position of the debtor, however, if the debtor has not complied with a Court Order to pay a debt, then they may be un-cooperative when responding to your examination notice.

Non-compliance may result in an examination order being made by the Court. If such an order is made, then an arrest warrant may be issued.

2.     Garnishee Orders

A garnishee order is an order made by the Court directing a third party who holds funds on behalf of the debtor, or who owes the debtor money to pay you instead.

These orders are often directed to employers (for wages) or to banks (who hold funds in savings accounts).

A Garnishee Order is a suitable form of enforcement action when you know the debtor’s bank account number, or other details of how they keep funds or how they are paid by an employer. A third party, especially a bank, is likely to pay the amount owed.

Failure to comply with a garnishee notice may result in the third party having a judgement for the debt entered against them personally.

3.     Writ of Execution

A writ of execution is an order allowing the sheriff to take physical possession of the debtors’ personal property in order to sell it, and pay the debt in full.

This is commonly the simplest form of enforcement. Usually the sheriff will seize household or business goods and/or vehicles and then advertise and auction the goods.

Writs of execution to sell land are very rarely ordered by the Court, unless all other property has been sold and there are no other alternatives available (such as paying the remainder of the debt by instalments).

4.     Payment of debt by instalments

Payment by instalments may be negotiated between the parties, or may be made by an order of the court.

Interest will accrue on the outstanding balance of the debt, however, generally if the debt is paid within 28 days from the date of judgement, no interest should be payable.

5.     Insolvency Actions

An application for the winding up of a corporation may be used when a company owes you money and the amount is at least $2,000.00. For more on winding up applications see our blog.

If someone owes you money, or if court proceedings have been commenced against contact our team on  to find out what your next course of action could be.

How do I contest a Will?

If you think you have not been properly provided for in a persons will and you wish to dispute the will, you may be able to make a Family Provision Claim. A Family Provision Claim must be initiated within twelve months of the date of death. This is a strict time limit.

Before you start, you must first determine whether you are an “eligible person” to make a claim. Eligible persons include:

–          Spouses (including de facto partner) at the time of death;

–          Children of the deceased;

–           A former spouse;

–          Persons who were at any time wholly or partly dependant on the deceased and were a member of the same household as the deceased; or

–          A person living in a “close personal relationship” with the deceased.

To begin your claim a Summons together with supporting affidavits must be filed with the Court and then served on the executor of the estate. These documents have the effect of commencing proceedings in the Supreme Court of NSW Equity Division.

Once the documents are filed a date is set for the First Directions Hearing. This is when the Court makes orders relating to the provision of information and service of documents by both parties.

This usually includes an order for disclosure and generally relates to the parties financial circumstances.

The executor and other potential eligible persons are also given a chance to respond to your claim.

The second directions hearing provides the Court with an opportunity to review the documents which have been filed and ensure each party has complied with the first directions of the court.

The matter is then listed for mediation. Mediation is required in all Family Provision proceedings and is an attempt to bring the parties together to discuss the dispute and try to negotiate a resolution suitable to both parties.

If you settle the dispute at the mediation, then the matter can be finalised and consent orders may be entered into.

If you do not settle the dispute at mediation, then a timetable will be made for the preparation of the matter for a final hearing.

At the final hearing, the Judge will hear both arguments and make a final decision as to the appropriate distribution of the estate.

If you have any questions about whether you are an eligible person, whether you have been adequately provided for in a will and if a family provisions claim is worth pursuing, contact our team on (02) 9653 9466. For further information on Family Provision Claims visit our blog.

 

Changes to the legal requirements for swimming pools

  • All contracts for the sale of land must include a warning about Swimming Pool safety and an owner’s obligations under the Swimming Pools Act 1992 to ensure that a swimming pool on the property complies with the legislation.
  • A Purchaser should always ensure that the swimming pool complies with legislation by making the appropriate enquiries with Council.
  • From 29 April 2013 the NSW Swimming Pool Register will be available for public use. Swimming pools can be registered at www.swimmingpoolregister.nsw.gov.au. Council can register your swimming pool on your behalf for a small fee. You will need to submit a self-assessment checklist about your swimming pool together with your personal and property details.
  • By 29 October 2013, you must register your swimming pools via the online NSW State Government register and indicate whether, to the best of your knowledge, your swimming pool complies with the relevant standards.
  • Penalties apply for home owners who do not register their swimming pool by 29 October 2013. If the inspector refers the matter to court, a maximum fine of $2,200.00 may apply.

DOES YOUR SWIMMING POOL COMPLY? 

  • There are a number of self-assessment checklists for swimming pools to identify the relevant safety standards each pool must comply with.
  • The relevant checklist depends upon the location of your property, the type of pool you have and when your swimming pool was constructed.
  • The checklists are listed below for your assistance.
  • Generally, it is a safety requirement that the swimming pool is separated by a complying child-resistant barrier from the house, adjoining properties and public spaces at all times. There is to be no direct access unless an exemption applies. Warning signs need to be visible regarding supervision and CPR Techniques.

Checklists:

Swimming pools on a property 2 hectares or larger

Waterfront properties

Small-sized property (being 230 square metres or less)

Swimming pools built before 1 September 2008 (checklist 7)

Swimming pools built between 1 September 2008 and 30 April 2013 (checklist 8)

Swimming pools built after 1 May 2013 (checklist 9)

Indoor pools (checklist 10)

Portable/inflatable pools (checklist 11)

Spas (checklist 12)

Home Owners now need to provide a valid swimming pool barrier compliance certificate from Council or a Private Certifier before selling or leasing their property. The local Council will issue this compliance certificate for a fee. An inspection will need to be conducted to determine whether the pool complies with the relevant standards.

SIGNIFICANT DATES

Swimming Pools Register available online from 29 April 2013.

Swimming Pools to be registered by 29 October 2013.

Pool owners require a compliance certificate before sale OR lease of their property from 29 April 2014.

FREQUENTLY ASKED QUESTIONS

  • As the pool safety compliance legislation is relatively ‘new’ you may be unsure how the changes affect you and your pool. You may have further questions and enquiries in respect of your personal situation. To assist you we have attached a list of frequently asked questions about the new legislation which may help you.

If you are still unsure how to register your pool or if you are looking to purchase a property and you are unsure whether the pool complies with the legislation, please contact a member of the team at Anderson Boemi Lawyers on (02) 9653 9466.

What Happens If I Get Caught Speeding?

–          If you are a Learner or Provisional 1 Licence Holder, you will have your licence suspended for at least 3 months for any speeding offence

–          Your licence will be automatically suspended for 3 months if your speed is between the range of 30km/h and 45km/h over the speed limit

–          If your speed exceeds 45km/h, your license will be suspended for 6 months (sometimes on the spot!

–          For any offence where your speed exceeds 130km/h, your licence will be suspended for 3 months regardless of whether the road was a freeway or motorway

–          In addition to licence suspension and disqualification periods, speeding offences also carry demerit points

–          There can be additional demerit points and an increase in the amount of your fine if you speed in a school zone

–          Please refer to the table below for a guide on the number of demerit points and fines for speeding offences

Exceed Speed By (km/h)

Provisional Licence

Full Licence

Demerit Pts

Fine

Demerit Pts

Fine

< 10

4

105

1

105

11 – 20

4

243

3

243

21 – 30

4

417

4

417

31 – 45

5

799

5

799

46 +

6

2154

6

2154

* These apply to light vehicles only

* Additional penalties apply in school zones

* Learner and P1 Licence Holders will be suspended for any speeding offence

* Automatic suspension applies for speeds over 30km/h above speed limit

 

If you need advice or assistance in relation to any speeding or traffic matter, please call Warwick Anderson on 9653 9466 or email warwick@andersonboemi.com.au