Was 2013 the Most Legislated Year for Property?

One needs to go back a long way to find legislation greater in scope than what was passed or proposed in 2013, perhaps a century, when the laws setting up our current land title system were passed. The real estate industry has always been heavily regulated, but 2013 saw an unusually large number of changes, many of major significance.

There were many reasons for this legislative activity. The current government was in 2013 a relatively new government implementing numerous reforms, developed during a lengthy period in opposition. The government was also keen to stimulate a troubled building industry.

Many changes were made impacting on agents, including:

  • Home Building Act 1989. A bill was passed by the NSW parliament on 28 May 2014 and commences on a date to be proclaimed. The bill makes substantial changes to Home Building Act 1989, including in relation to home building contracts, statutory warranties, home owner warranty insurance and dispute resolution. The most controversial changes relate to an owner’s ability to pursue a builder or developer for building defects and the applicable time limits. Agents will need to ensure owner clients are aware of and acting in accordance with these time limits.
  • Strata Schemes Management Bill 2014. A bill, following up a recent review process, is likely to come into force in early 2016 and replace the Strata Schemes Management Act 1996. This involves numerous changes across a broad range of issues, including governance, maintenance and rectification of building defects, budgets and levies, by-laws and dispute resolution. Agents will need to update procedures and templates.
  • Strata Schemes Development Bill 2014. This bill is likely to come into force in early 2016,to replace the Strata Schemes (Freehold Development) Act 1973 and Strata Schemes (Leasehold Development) Act 1986. This proposes far-reaching changes, including liberalisation of requirements in relation to sale or redevelopment of strata schemes for the purpose of urban renewal. Agents need to be aware of the new procedures, as well as the associated commercial opportunities.
  • Property Stock and Business Agents Act 2002.  The Property Stock and Business Agents Amendment Act 2013 which commenced on 1 July 2013 made a number of amendments, including in relation to agency agreements and commission entitlements and amendments to the regulations made further changes, including imposition of mandatory professional indemnity insurance. Agents need to be aware of the new requirements.
  • Planning Bill 2014. This bill has been the subject of much controversy and debate appears to have stalled. However, it may well be passed eventually in some form. It proposes far-reaching changes to NSW planning laws. Agents need to be aware of these.
  • Civil and Administrative Tribunal Act 2013. This commenced on 4 March 2013 and consolidated numerous NSW tribunals into the Civil and Administrative Tribunal of New South Wales, better known as NCAT. It has powers in relation to a broad range of issues relevant to property, including in relation to disputes concerning licensing, building defects, strata management and residential tenancies. Agents need to be aware of the new forums and procedures for pursuing property related claims.
  • Retail Leases Act 1994. The NSW Government commenced a review in 2013, which is likely to lead to further legislation effecting changes in relation to a number of issues, including outgoings contributions, lessee rights on expiry of the lease and dispute resolution.
  • Building and Construction Industry Security of Payment Act 1999. Amendments commenced on 21 April 2014, changing the payment claim process. Agents involved in engaging construction contractors need to be aware of the new requirements, including maximum payment periods and supporting statements.
  • Company Title Units. The Local Court Amendment (Company Title Home Unit Disputes) Act 2013 commenced on 15 July 2013 and transferred company title home unit disputes to the Local Court. Agents involved in the management of company title buildings or sale of company title units need to be aware of the new procedures.
  • Safety laws. Numerous legislative changes relevant to property safety issues were made or proposed during 2013, adding to the compliance burden imposed on property owners and agents under the work health and safety legislation passed the previous year. These include requiring child protective window barriers under the Strata Schemes Management Act 1996 and the Building Code of Australia and introducing swimming pool registration and certification requirements under the Swimming Pools Act 1992. Owners and their agents need to be aware of the new requirements, especially when selling or leasing.
  • Taxation and Investment. 2013 also saw the customary changes or proposed changes in laws bearing on investment in property.

Arguably the most important of these concerns safety. Safety is of course an important issue in its own right, but changes during 2013 necessitate a considerable amount of activity for property owners and their agents. For example, a strata managing agents need to deal with issues ranging from pool fencing, window barriers and work health and safety legislation duties relating to the strata common property.

Most of these followed a lengthy consultation process and should not present much of a surprise. However, these reforms are numerous and complex, many were passed in a different form to what was originally proposed and most have transitional provisions, the combined effect being that stakeholders in the property industry are still working on implementation of many of these reforms.

Agents in particular will have substantial compliance costs associated with these changes, including those relating to updating systems and training staff.

 

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.

 

As seen in the Real Estate Journal, August 2014 Issue pg. 21

Prepared by David Bannerman and Mark Pollinger

18 August 2014

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For more information on this topic or any legal enquiries please contact your Strata Team.

 

 

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