Understanding Landlord Liability and Pursuing Compensation for Rental Property Injuries

Understanding Landlord Liability and Pursuing Compensation for Rental Property Injuries Renting a property can sometimes lead to unforeseen challenges, and in unfortunate cases, tenants may suffer personal injuries due to the negligence of their landlords. A recent rental dispute in Brisbane has highlighted the potential legal avenues available to tenants seeking compensation for their injuries. This article will aim to inform on the details of this case, whilst addressing the common questions related to personal injury claims against landlords. If you have been injured in a rental property, this will assist you in understanding your rights and possible causes of action. Summary of the Brisbane Rental Dispute: A rental dispute in Brisbane recently resulted in a $1.2 million claim being filed by a tenant against his landlord. The tenant, Justin Pirc aged 35, claimed that he had suffered severe injuries due to negligence on the part of the landlords, Cassandra and Jason Sheppard. According to the allegations, the property had several hazards, including faulty electrical wiring, exposed nails, and slippery surfaces. Mr. Pirc claimed that he sustained life changing injuries as a direct result of these negligent acts when he slipped on a flooded floor allegedly caused by a leaking pipe that was chewed through by a rat. This case emphasizes the importance of addressing safety concerns in rental properties and holding landlords accountable for their negligence. The dispute originated from a residential tenancy arrangement in Brisbane. According to court documents, the tenant alleged various issues with the property, including significant maintenance problems, safety concerns, and breach of contract by the landlord. These alleged issues led to a deterioration of the tenant's living conditions and ultimately prompted the legal action as he was unable to return to work due to his injuries. Tenant's Claims: The tenant alleges that the landlord failed to address numerous maintenance issues, despite repeated requests for repairs. Whilst the landlord, made attempts to fix the leak after numerous complaints, he used the same material as the original pipe which the rodent had chewed through, leading to the leak happening a second time. Additionally, the tenant contends that the landlord breached the terms of the tenancy agreement by failing to maintain the property in a habitable condition. Landlord's Response: Mr. Sheppard has refuted Mr. Pirc’s claims and asserts that they were not given sufficient notice or opportunity to address the alleged maintenance issues. The landlord maintains that they made efforts to resolve any reported problems promptly. They argue that the tenant's failure to provide necessary access to the property for repairs hindered their ability to rectify the mentioned concerns. Legal Proceedings: The dispute has now escalated into a $1.2 million claim, which is expected to proceed through the QLD court system. The tenant is seeking compensation for damages and initiating a case to recover economic loss. The case is likely to focus on the duty of care owed by the landlord, the adequacy of maintenance efforts, and the fact that the injuries sustained may have been [...]

kateflett2023-05-24T15:00:18+10:00May 24th, 2023|Litigation, Personal Injury, Property & Conveyancing|

From Bushfires to Floods: Understanding El Niño and La Niña

From bushfires to floods, El Niño and La Niña are two weather patterns that have the power to wreakhavoc on our planet. These phenomena may sound similar, but they are fundamentally different and havedistinct impacts on our climate, oceans, and atmospheric systems. During an El Niño event, Australia's bushfire risk skyrockets due to the hot and dry conditions. But duringa La Niña event, the eastern states of Australia are more prone to floods and heavy rainfall. Theseextreme weather events can cause massive damage to property and result in financial losses forindividuals, businesses, and insurers. The science behind it: El Niño occurs when sea surface temperatures in the Pacific Ocean warm up, causing changes in windpatterns and atmospheric pressure. The warming usually takes place in the central and eastern Pacificand can significantly impact global weather patterns. During an El Niño event, areas like Indonesia andAustralia experience drier than usual conditions, while the western coast of South America sees moreprecipitation. From Bushfires toFloods - UnderstandingEl Niño and La Niña In contrast, La Niña is characterized by cooler than usualsea surface temperatures in the central and easternPacific. This cooling triggers changes in atmosphericpressure and wind patterns, which can also impactglobal weather patterns. During a La Niña event, we seethe opposite effects of El Niño, with wetter than usualconditions in the western Pacific and drier than usualconditions in the eastern Pacific. Apart from affecting precipitation patterns, theseweather patterns can also impact the frequency andintensity of extreme weather events. El Niño events, forinstance, are linked to an increased risk of hurricanesand tropical storms in the Atlantic Ocean. Meanwhile, LaNiña events have been associated with more frequentand severe winter storms in North America. Why should this matter to you? Understanding the differences between El Niño and LaNiña is vital for scientists and policymakers to makeaccurate weather forecasts and plan for potentialimpacts. With growing concerns about climate change,some studies suggest that global warming could lead tomore frequent and severe El Niño and La Niña events. In conclusion, while El Niño and La Niña may sound similar, they pose very different risks and havedistinct impacts on our planet. As we continue to learn more about these phenomena, it is essential tomonitor their impacts and plan for potential consequences to ensure the safety and well-being ofcommunities around the world. Governments, businesses, and individuals must be aware of theincreased risks of extreme weather events, such as floods, bushfires, and hurricanes, during El Niñoand La Niña events. By taking proactive measures to prepare for these risks, we can minimize thedamage caused by these weather patterns and protect our communities from harm. Article prepared by Carlo Gentili, Head of General Insurance, GSA Insurance Brokers.

kateflett2023-05-17T16:35:19+10:00May 17th, 2023|Insurance, Personal Injury, Property & Conveyancing|

What is PMSI? Minimising Risk

Minimising Risk: What is a PMSI The Personal Property Securities Act 2009 (Cth) (Act) affects the way a number of supply and loan arrangements are secured. One of them is a purchase money security interest (PMSI). All businesses should understand what a PMSI is. If you are part of a trading or loan arrangement and don’t property register your security interest, you could lose your goods if the counterparty to the arrangement goes bust. Meaning of some common terms Some of the relevant terms of the Act are as follows: • "security interest" means basically the granting by a person (the grantor) of an interest in personal property to another person which secures payment or performance of an obligation. A security interest can be created by way of a charge over a company, a hire purchase agreement, a consignment, a retention of title clause and many others. • "collateral" means the personal property over which the security interest is given or attaches. • "personal property" is just about anything other than land. • "PPSR" means the Personal Property Securities Register. This is a publicly searchable register (for a fee) which contains details of all registrations of security interests. PMSI is a special type of security interest because it secures the purchase of the personal property. It can arise when goods are supplied under a retention of title clause, arises on leases of such things as motor vehicles or boats or in a consignment transaction. Typical situations where a PMSI will arise To understand when a PMSI arises, some examples would be: • You provide stock to someone on a monthly account and your trading terms include a retention of title clause. That means that although risk and possession of the stock passes to the buyer, the title to the stock does not pass until full payment is made. This creates a PMSI which can be registered to protect your interest as unpaid seller of the goods. • You give someone goods to sell for you on consignment. You can register a PMSI to protect your interest. • You buy a new car. You get finance for the car from a bank. The bank will register a PMSI. So if you are buying the car privately, you will be able to search the PPSR to see if there is any existing security. Generally unless the collateral is a motor vehicle, a PMSI will not arise in property that the grantor intends to use for personal, domestic or household purposes. There are some other exceptions such as an interest that arises in a sale and lease back arrangement, but for present purposes, we will concentrate on the more common examples. Why register a PMSI? A PMSI is given "super priority". That means that it can defeat other security interests in the collateral. This includes security interests created before the PMSI arises. That is unusual because normally with security priority it is the first in time that prevails or when there is [...]

kateflett2023-05-17T12:17:49+10:00May 17th, 2023|Commercial & Corporate, Property & Conveyancing|

Queensland Land Tax Reform Struck Down

Queensland Land Tax Reform Struck Down Last week, the Queensland premier Annastacia Palaszczuk abandoned the proposed Queensland Land Tax reform following significant industry pushback. Queensland was set to implement new legislation affecting the land tax of Queensland landowners. The change was set to take effect 30 June 2023 and would have significantly increased the annual land tax liability of Queensland landowners. Currently Currently, Queensland land tax is calculated based on the value of all Queensland land which is not exempt from land tax. Land which is exempt from land tax includes: land held by individuals with a value of $600,000.00 or less; or land held by companies, absentees, or trustees with a value of $350,000.00 or less. Crucially, Queensland landowners are not currently assessed on the value of land held outside of Queensland. What was proposed? Under the proposed reform, from 30 June 2023 land tax for Queensland homeowners would have been assessed based on all land held across any State in Australia. These changes would have seen landowners with land in multiple States, including Queensland, pay significantly higher land tax. Calculations Under the proposed reform, land tax liability would be calculated as follows: calculate the total value of taxable land owned in all of Australia; calculate the Queensland land tax liability of the all the taxable land held in Australian as if it were all held in Queensland; calculate the percentage of the total taxable land which is owed in Queensland only; and then multiply the total calculated land tax liability by the percentage of Queensland land. Example For example, Stephanie owns land in Australia with the following taxable value: Queensland $750,000.00 New South Wales $550,000.00 Victoria $300,000.00 Stephanie’s land tax liability as of 30 June 2022 is calculated only on the $750,000.00 land value in Queensland and totals $2,000.00 for the year. Under the reform, as of 30 June 2023, Stephanie’s land tax liability would be calculated as follows: Total value of taxable land = $1,600,000.00 = ($750,000.00 + $550,000.00 + $300,000.00) Land tax payable on total value of taxable land = $14,400.00 Percentage of Queensland property = 46.875% = ($750,000.00 / $1,600,000.00) x 100% Land tax payable = $6,750.00 = $14,400.00 x 46.875% Following the land tax reform, Stephanie’s land tax would increase from $2,000.00 to $6,750.00 per annum. Concerns over the Reform Amid the rising RBA cash rate, the proposal sparked panic across the property industry. The main concern being that Queensland landowners would suffer a double jeopardy on land tax for any interstate land. To continue with the above example, Stephanie would not only pay a significantly higher land tax in Queensland based on the taxable value of her properties in New South Wales and Victoria, but also pay separate land tax in those States. The proposed reform received significant industry pushback as it was seen as an unfair money grab by the Queensland Government. Significantly, the NSW premier, Dominic Perrottet, announced he would not be providing the Queensland Government with information on the [...]

2022-10-19T16:08:27+10:00October 19th, 2022|Property & Conveyancing|

Queensland Residential Rental Crisis and Law Reform

Queensland is facing the worst rental crisis in recent history The Housing Legislation Amendment Act 2021 (Qld) is set to improve the rights and standards of renting for Queensland residential tenants Legislation for the protections of victims of domestic and family violence was introduced in October 2021 As of 1 October 2022, new legislation will: increase the rights of tenants to keep animals in rental properties, end tenancies and improve the standard of housing; and restrict the rights of landlords to terminate tenancies without grounds. About the Rental Crisis High demand and short supply of Queensland housing, largely from interstate migration, has created a monopoly for landlords. The situation grows significantly dire for tenants, with low vacancy rates and continuing price hikes for rental properties. Rental Reform In light of the continuing rental crisis the Queensland Government has implemented new legislation, set to roll out in three stages. The Housing Legislation Amendment Act 2021 (Qld) (the Act) is stage one of the Queensland Law Reform and is set to improve the rights and standards of renting for Queensland tenants. In its explanatory notes, the Housing Legislation Amendment Bill 2021 (Qld) set out an objective to ‘ensure Queenslanders have access to safe, secure, and affordable housing’. The introduction of reforms under this Act is staggered to allow landlords to adequately prepare for the changes. Changes from October 2021 The first of these changes was implemented in October of 2021. The legislative amendments improved the rights of tenants who are victims of domestic violence to end tenancies and recover their bonds. Changes from October 2022 More changes are set to be introduced under the legislative amendments beginning 1 October 2022. Terminating Tenancies The new legislation will change the rights of landlords to end tenancies. An amendment to section 291 of the Act will prevent landlords from removing tenants ‘without grounds’. Instead, the rights of a landlord to provide the tenant with a notice to leave under section 291 are restricted to the ending of a fixed term agreement. However, new provisions will be introduced empowering landlords to terminate tenancies under the following circumstances: ending a fixed term agreement (section 291); planned demolition or redevelopment (section 290C); significant repair or renovations (section 290D); change of use (section 290 E); and owner occupation (section 290G). These provisions ensure that the rights of landlords to end tenancies are not removed entirely but restricted to specific, reasonable grounds. Further, the insertion of section 307A will allow tenants to terminate tenancies within the first 7 days of occupation where the property fails to comply with the minimum housing standard, where the house is in disrepair or is otherwise unfit for occupation. Pet Ownership As of October 2022, renters seeking to live with a pet cannot have their application declined without ‘reasonable grounds’. A landlord will only be entitled to refuse an application to keep a pet on the premises on the grounds set out in section 184E of the Act. These grounds include where keeping the [...]

2022-09-12T10:45:25+10:00September 12th, 2022|Property & Conveyancing|

Alarms Sound for Property Investors in Queensland

On 1 January 2022, new legislation regarding smoke alarm compliance in Queensland came into effect. The most substantive change is that residential rental properties are required to have interconnected photoelectric smoke alarms installed in every bedroom, in hallways and on every level. Selling Residential Property From 1 January 2022 From 1 January 2022, all residential property owners must install compliant smoke alarms in the property before they sign a contract to sell the property. If an owner sells their property without compliant smoke alarms installed, they will be in breach of the Fire and Emergency Services Act 1990 and may face legal penalties. This also applies to the incoming and subsequent owners of the property. There is a contractual obligation for the sellers to notify the buyer that compliant smoke alarms are installed in the property. The Queensland Titles Office is notified about the smoke alarms in the property from the transfer forms which transfer the property to the new owner. If the owner states anything false or misleading they may face legal penalties. It is recommended that owners discuss the above requirements with their real estate agent prior to signing a contract to sell their property. Leasing Residential Property From 1 January 2022 From 1 January 2022, any property subject to a new or renewed residential tenancy agreement must have compliant smoke alarms. The Residential Tenancies and Rooming Accommodation Act 2008 states that the owner must not breach any law dealing with issues regarding health and safety. Therefore, if the owner does not install compliant smoke alarms and signs or renews a tenancy agreement from 1 January 2022, the tenant may be entitled to terminate the agreement or apply to the Queensland Civil and Administrative Tribunal to seek an order for the owner to install compliant smoke alarms. It is recommended that property managers confirm that the properties they manage with tenancy agreements commencing from 1 January 2022 are fitted with compliant smoke alarms. According to both real estate software management company Console and the Queensland Fire and Emergency Services’ research team, anywhere between 20-50% of Queensland rental properties still do not comply with these new laws. If you are a landlord or residential property owner/manager and wish to seek further advice in relation to property compliance matters, please contact us. If you are seeking a smoke alarm fitter to bring your property up to standard, feel free to contact our recommended smoke alarm installer and inspector, Dean Kenway of Reefcosa Electrical and Air. By Thomas Malios and Josiah Neal

2022-07-05T11:24:10+10:00January 31st, 2022|Blog, Property & Conveyancing|

Seller’s Guide: Commercial Property

Selling a commercial property is a big decision, therefore it is important that you understand your rights, responsibilities and the legal process involved. The process of selling a home is different in every Australian State and Territory. This article covers the process in Queensland. What is Conveyancing? Conveyancing is the legal term used for the transaction of buying or selling a property. A lawyer plays an important part in this process because we understand the Contract and all the forms and processes involved. Selling a property will be a large change to a person's financial position. When a seller signs a Contract this does not mean that the buyer then legally owns the property: There will be a process of the seller's lawyer dealing with the buyer's lawyer, real estate agents and banks. A conveyance usually takes between 4 to 6 weeks. A Contract will usually contain conditions to be fulfilled by certain dates. If the buyer organises a building and pest inspection that reveals a bad result, or cannot obtain finance from their bank by a certain date then they may be entitled to terminate the Contract. This means they can walk away and are released from further obligations under the Contract and they will have their deposit returned. A property must have a 'clear title' in order to be sold – meaning no restrictions that prevent a sale. A lawyer carries out searches to determine whether the seller has the right to sell the property. The conveyancing process leads up to 'settlement or 'completion' – this is the day when the banks, seller’s and buyer’s lawyers exchange the money and other documents, and the keys are released. A seller should remember that time is of the essence of the Contract. This means that things must be done by their due dates because neither a buyer nor a seller has an obligation to grant extensions. An example is the obligation of the seller to settle the sale on the settlement date. Time limits are strict and failure to comply by the due date can have drastic consequences. Our lawyers help the transaction move smoothly and swiftly. What a Seller Must do in the Early Stages of a Conveyance 1. Sign the Contract We are often approached by sellers either just before or after signing a Contract to sell their commercial property. We prefer to speak to clients before they sign. That way we can explain the terms and ensure the conditions are appropriate. When selling a commercial property there are a few things we like to ensure the Contract covers: The Contract needs to disclose whether there are any encumbrances over the property such as easements or covenants. If these are not disclosed then the buyer may have the right to terminate the Contract If the seller is a company and/or trust, then certain Special Conditions sometimes need to be inserted for land tax adjustments at settlement. If there is a Lease with a tenant, then the terms of [...]

2022-07-05T11:24:12+10:00November 26th, 2021|Blog, Property & Conveyancing|

Seller’s Guide: Residential Property

Selling your home is a big decision, therefore it is important that you understand your rights, responsibilities and the legal process involved. The process of selling a home is different in every Australian State and Territory. This article covers the process in Queensland. What is Conveyancing? Conveyancing is the legal term used for the transaction of buying or selling a property. A lawyer plays an important part in this process because we understand the Contract and all the forms and processes involved. Selling a property will be a large change to a person's financial position. When a seller signs a Contract this does not mean that the buyer then legally owns the property: There will be a process of the seller's lawyer dealing with the buyer's lawyer, real estate agents and banks. A conveyance usually takes between 4 to 6 weeks. A Contract will usually contain conditions to be fulfilled by certain dates. If the buyer organises a building and pest inspection that reveals a bad result, or cannot obtain finance from their bank by a certain date then they may be entitled to terminate the Contract. This means they can walk away and are released from further obligations under the Contract and they will have their deposit returned. A property must have a 'clear title' in order to be sold – meaning no restrictions that prevent a sale. A lawyer carries out searches to determine whether the seller has the right to sell the property. The conveyancing process leads up to 'settlement or 'completion' – this is the day when the banks, seller’s and buyer’s lawyers exchange the money and other documents, and the keys are released. A seller should remember that time is of the essence of the Contract. This means that things must be done by their due dates because neither a buyer nor a seller has an obligation to grant extensions. An example is the obligation of the seller to settle the sale on the settlement date. Time limits are strict and failure to comply by a due date can have drastic consequences. Our lawyers help the transaction move smooth and swiftly. What a Seller Must do in the Early Stages of a Conveyance 1. Sign the Contract We are often approached by sellers either just before or after signing a Contract to sell their home. We prefer to speak to clients before they sign. That way we can explain the terms and ensure the conditions are appropriate. The buyer is usually required to pay an initial deposit to the real estate agent on the day of signing the Contract. Sellers should be mindful that buyers of residential property are also entitled to a 5 business day 'cooling off' period starting on the day they sign the Contract. This means that if a buyer changes their mind about the purchase then they can terminate the Contract. However the seller can charge a termination penalty of 0.25% of the purchase price. So while the percentage is small [...]

2022-07-05T11:24:13+10:00November 19th, 2021|Blog, Property & Conveyancing|

First Home Buyer’s Guide to Buying Residential Property

Buying your first home is a big decision, therefore it is important that as a first home buyer you understand your rights, responsibilities and the legal process involved. The process of buying a home is different in every Australian State and Territory. This article covers the process in Queensland. What is Conveyancing? Conveyancing is the legal term used for the transaction of buying or selling a property. A lawyer plays an important part in this process because we understand the Contract and all the forms and processes involved. Buying a property is an important step and often the biggest investment a person can make. When a buyer signs a Contract this does not mean that they then legally own the property: There will be a process of the buyer’s lawyer dealing with the seller’s lawyer, real estate agents and banks. A conveyance usually takes between 4 to 6 weeks. A Contract will usually contain conditions to be fulfilled by certain dates. If the buyer organises a building and pest inspection that reveals a bad result, or cannot obtain finance from their bank by a certain date then they may be entitled to terminate the Contract. This means they can walk away and are released from further obligations under the Contract and they will have their deposit returned. A property must have a 'clear title' in order to be sold – meaning no restrictions that prevent a sale. A lawyer carries out searches to determine whether the seller has the right to sell the property, and aims to uncover any issues which could be a nasty surprise for a new home owner. The conveyancing process leads up to 'settlement or 'completion' – this is the day when the banks, buyer’s and seller’s lawyers exchange the money and other documents, and the keys are released. A buyer should remember that time is of the essence of the Contract. This means that things must be done by their due dates because a seller has no obligation to grant extensions. Time limits are strict and failure to comply by a due date can have drastic consequences. Our lawyers help the transaction move smooth and swiftly. What a Buyer Must do in the Early Stages of a Conveyance 1. Sign the Contract We are often approached by buyers either just before or after signing a Contract for their first home. We prefer to speak to clients before they sign. That way we can explain the terms and ensure the conditions are appropriate. The buyer is usually required to pay an initial deposit to the real estate agent on the day of signing the Contract. Buyers of residential property are also entitled to a 5 business day 'cooling off' period starting on the day they sign the Contract. This means that if a buyer changes their mind about the purchase then they can terminate the Contract. However the seller can charge a termination penalty of 0.25% of the purchase price. So while the percentage is small [...]

2022-07-05T11:24:14+10:00November 19th, 2021|Blog, Property & Conveyancing|

Insuring a Freehold Property in Queensland: What Buyers may not know…

Queensland insurance requirements when purchasing property vary significantly from other states and territories in Australia. To avoid any undue risk, a buyer must be aware of their insurance responsibilities on signing a Freehold contract. Things to consider: · Who is responsible for insurance during the settlement period? · Do you need building insurance before settlement? · Why home insurance is important? Transfer of Risk The risk of the property is transferred to the buyer at 5 pm on the first business day after the contract is signed. This transfer of risk is not delayed where a contract is subject to cooling off or conditional on building and pest or finance conditions. When Should Insurance Be Taken Out? With the transfer of risk, comes the responsibility of insurance coverage. Under a standard Freehold REIQ contract, the buyer is responsible for the property insurance (Note: this excludes body corporate insurance) from 5 pm the next business day after signing the contract. What if the Vendor already has Insurance? The common misconception when purchasing in Queensland is that the property is covered under the Vendor’s insurance. This is not entirely untrue as the property will still be covered under the Vendors policy until such time that the title is transferred, or the policy is cancelled. However, in the event of damage to the property, a buyer cannot make a claim on the Vendors insurance. Regardless of whether a property is already insured, a buyer cannot rely on the Vendor’s policy to protect them in the event of damage or failure by the Vendor to insure. The Importance of Insurance As beforementioned where the property is damaged before settlement, there is no guarantee the Vendors insurance policy will cover the damage. Subject to the conditions of the contract, after such time as the risk is transferred, a buyer cannot terminate a contract on account of property damage. This means an uninsured buyer will inherit the damage on settlement. A buyer should mitigate this risk by taking out an insurance policy immediately on signing the contract especially if the Vendor has let their policy lapse during the period time of the contract. It is recommended that a buyer conducts all due diligence with respect to Insurance obligations under the contract with their Solicitor/Conveyancer, Mortgagee and or Insurance Company. By Aspen Roggeveen DISCLAIMER: This article is only meant to give you general information and should not be relied on as legal advice. Speak to one of our lawyers for more information. Salerno Law is managed by Emma Salerno, Managing Partner and CEO, who has a wealth of experience from operating her own businesses across Australia as well as a range of in-house and commercial experience both in Australia and overseas.

2022-07-05T11:24:20+10:00September 14th, 2021|Blog, Property & Conveyancing|

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