Legal Liability

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Robert Gottliebsen has said that Australia is going through a credit squeeze without precedent following a period when bank credit standards have been too low.
"The banks have been told to raise those standards, which effectively cuts at least 20% from what they would loan on a property," he wrote in The Australian.
He then added there were also "the unconventional credit clamps... like a cancer growing below the surface, and no one’s talking about them".
Gottliebsen noted that bank managers were under attack at the same time as a credit squeeze - "so a strange new inner fear had developed among banking people at all levels as regulators are set to walk into banks to check what they are doing".
He forecast huge payments set to be made to customers who were wrongly charged.
"As property falls in the light of the credit squeeze, many of those who borrowed from the banks will sue because lending to them was 'irresponsible'.
"It’s true that sometimes high-pressure, commission-driven bank sales people did cajole customers into taking too much debt.
"But the customers accepted risks for big gains. Nevertheless, litigation lawyers are preparing for a picnic.
"Bankers who are confident enough to exercise sensible discretion are hard to find."
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Litigation lawyers are preparing for a picnic against home loan bankers: Robert Gottliebsen

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NSW Fair Trading has recently prosecuted a former real estate agent for misappropriation of trust funds in relation to a property development in Narwee.
Alan Temelkov was convicted of 7 offences under the Property Stock and Business Agents Act and sentenced to 18 months imprisonment, to be served in the community. He was also ordered to pay over $235,000 in reparation for his offences.
In September 2012, Mr Temelkov, director of Tyron Holdings Pty Ltd, trading as AMJ Properties, was contracted to manage the sale of a number of units in a Narwee development.
Tyron Holdings Pty Ltd received a number of house deposits which should have been deposited into a trust account and held on behalf of the sellers until completion of the sale.
During Fair Trading’s investigation, Mr Temelkov admitted to his failure to deposit the funds in the trust account, instead spending the money on business expenses and his personal gambling habit.
As a result, the sellers were left significantly out of pocket and were required to make application to the Property Services Compensation fund for restitution.
Fair Trading Commissioner, Rod Stowe, advises that trust account fraud is a serious offence and warns that Fair Trading will actively pursue any persons that fail to comply with their trust account obligations. 
“Property is a significant purchase. Real estate agents should be trusted to deposit payments received for sales into the correct account,” Mr Stowe said.
Mr Temelkov was sentenced on Thursday 8 September 2016 and has 28 days to appeal. 
 
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Alan Temelkov convicted after Narwee trust fund misappropriation

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A recent High Court decision has interesting implications for strata property owners, particularly in reference to commercial buildings and defects discovered down the track.
Grace Lawyers represented an owners corporation in a case where the investors sued the builders for negligence in defective building work. The noted that the ruling found that the owners corporation was not ‘vulnerable’ when the commercial building was built. This means the rights that existed were between the developer and the builder, and later the developer and the first unit owners to purchase.
Grace Lawyers’ Colin Grace says this has implications for all commercial, retail and industrial complex owners corporations.
The finding noted that those who purchased first, usually off the plan, could bargain for anything they wanted, including warranties over defective works. If they did not do this, then complaining later through the owners corporation isn’t necessarily an option, explained Grace.
Grace said it affects the fundamental rights of the land owners to take action.
“What it means is that anyone who wants to buy into these strata schemes needs to contract with the original developer to obtain any rights over defects (which may manifest itself years into the future – as in this case). If they don’t, then too bad,” said Grace.
He said the owners are mum and dad investors without the sophistication level of the builders and developers. Having bought a purpose built building, they face costs to rectify defects years later.
According to Grace, “urgent retrospective legislative intervention to protect the rights of owners” is needed.
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Building defects fall squarely on “investors who do not have the same sophistication”: Grace Lawyers

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While owner occupiers tend to have their insurance policies cut out for them (protect your home, yourself, and your stuff), landlords don’t have it quite so easy.

How much protection are you obliged to provide for your tenants? And how do you protect yourself?

Your exposure to risk as a landlord comes from two sources: potential damage to your property and assets, and damage to your tenants. Thankfully, standard building and contents insurance and landlord’s insurance will cover you should either of those situations eventuate.

Most landlord insurance policies will cover damage made by people external to your property. So if your rental property is vandalised by strangers, your landlord policy will most likely cover the repairs. But if your tenant or their guest takes a texta to the walls, the bond is your best bet. If you feel your bond doesn't provide enough cover, some insurers also provide extra tenant protection on top of your landlord insurance, which can cover malicious damage by your tenants or their guests, theft, or the loss of rental income if your tenants default on your rent.

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In general, your lease agreement will override your insurance policy. Most basic landlord insurance policies state that the insurer will not cover fixtures and fittings that the tenant is responsible for as part of your tenancy agreement. If you are considering landlord insurance, make sure you go through your prospective policy agreement with one eye on your lease.

Some landlord insurance policies will also reimburse you for lost rental income should your property become uninhabitable due to accidental damage.

The health and wellbeing of your tenants is your other main concern as a landlord. As the owner of a leased property, you may be legally liable for accidents that happen within that site. While your legal liability cover will differ depending on your policy and provider, in effect it works like public liability insurance.

If someone is injured in your property and successfully sues you, your standard landlord’s insurance will provide $10 million worth of cover to help you pay for this. While $10 million may seem like a staggering number, consider the potential costs for disability support your tenant may have to pay if they are permanently injured on your property. Bear in mind, landlord insurance will usually not cover the costs of any legal proceedings themselves. 

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What protection your landlord insurance policy should offer:

<ul>
<li>Damage from animals to the interior of your property, not including your tenants' pets or vermin and pests</li>
	<li>The effects of natural disasters or fire</li>
	<li>Sudden and unexpected impacts, like falling trees or cars colliding with your property. Note, this normally won't cover any damage that happens as a result of contracted works.</li>
	<li>Vandalism and theft by someone who didn't have the consent of you or your tenants to enter the property</li>
	<li>Your legal liability for claims arising from accidents onsite which result in bodily harm or death of someone on the property, not including you or your family.</li>
	<li>Your legal liability for claims where your tenants' or their guests' property was damaged in the rental</li>
</ul>
Before you decide to become a landlord, make sure you are adequately covered. Australia has a competitive insurance market, with plenty providing landlord coverage, so take the time to shop around for comprehensive and cost-effective policy. If you aren't sure what level of coverage is best for you, your property manager can give you some guidance.

 
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