atkinson vinden lawyers law talk · efficiency disclosure obligation did not commence until 1...
TRANSCRIPT
Keeping you in touch with the law
IN THIS ISSUE:
Property Law
Obligations of Landlords
and Vendors of Commercial
Buildings.
Family Law
Problems with Couples
Living Separately Under the
one Roof.
Guarantees
Technical Issues Where
Bank Enforces Guarantee.
W
The introduction of the Building Energy Efficiency Disclosure Act 2010 What does this mean for Landlords and Vendors of commercial buildings?
Welcome to this edition of Law Talk, the Client Newsletter of Atkinson Vinden.
In this edition, we provide a summary for landlords and vendors of commercial buildings in relation to the new Building Energy Efficiency laws. These new provisions will have wide ranging implications.
Annabel Murray of our Family Law team highlights the problems which can occur where separated couples attempt to live together in the former matrimonial home.
Finally, we provide a brief summary of the issues which can arise when a bank seeks to enforce guarantee documents.
We trust that the information in Law Talk is of value and relevance to you.
Warm regards.
Continued on page 2
L a w Ta l kAtkinson Vinden Lawyers
T The National Strategy on Energy Efficiency
was an initiative of the federal, state
and territory governments as part of a broad
package of measures to encourage building
energy efficiency. The program is managed
by the Australian Government Department of
Climate Change and Energy Efficiency.
The initiative has led to the enactment of the
Building Energy Efficiency Disclosure Act 2010
(the Act). Accordingly, from 1 November 2010
most vendors or landlords of office space of
2,000 square metres or more will be required
to obtain an up to date energy efficiency rating.
The Act provides for a transition period
for the first year of the program where a
valid National Australian Built Environment
Rating System (NABERS) Energy base or whole
building rating can be disclosed.
On and from 1 November 2011, a full
Building Energy Efficiency Certificate (BEEC)
will need to be disclosed. BEEC’s are valid for
12 months, must be publicly accessible on the
online Building Energy Efficiency Register and
includes:
n a NABERS Energy star rating for the building;
n an assessment of tenancy lighting in the area
of the building that is being sold or leased;
and
n general energy efficiency
guidance.
The NABERS Energy star
rating must also be included
in any advertisement for the
sale, lease or sublease of the
office space.
Exceptions and ExemptionsThe main categories of exceptions to and
exemptions from the obligation to disclose an
up to date energy efficiency rating at the point
of sale, lease or sublease are:
n exceptions to the program for certain offices
and circumstances, which are set out in the
Act and Regulations,
n exemptions from the program that may be
granted by the Secretary of the Department
of Climate Change and Energy Efficiency
in certain circumstances. These types of
exemptions require an application to be
made to the Secretary; and
n exemptions from the information gathering
provisions in the Act.
ExceptionsIn certain circumstances, buildings and office
Sheena Joshi
space that would otherwise be considered disclosure affected
under the legislation, will not be required to comply with
the disclosure obligations. Currently this exception is only
available to buildings: -
n that are either new or subject to major refurbishment and
a certificate of occupancy has either not been issued or
issued less than 2 years prior;
n that are subject to strata title; or
n that has total office space comprising less than 75 per cent
of the building by net lettable area (or gross lettable area if
net lettable area is unavailable).
In addition, the following transactions do not give rise to
a disclosure obligation, even if the relevant office space is a
disclosure affected building: -
n the sale of a building through the sale of shares or units or
the sale of a partial interest in a building, or
n leases and subleases of 12 months or less (including any
option to extend). For example, a six month lease with an
option to extend for another six months would not trigger
a disclosure requirement. However, a six month lease
with an option to extend for 12 months would trigger a
disclosure requirement.
ExemptionsAn exemption from a disclosure
obligation may be sought in the following circumstances: -n where a building or area is used
for police or security operations; or
n cases where an energy efficiency rating cannot be assigned because of the characteristics of the office. This class covers disclosure affected offices for which a NABERS Energy base building or whole building rating assessment is not possible. For example, where there is insufficient data due to extensive vacancies over an extended period, it may not be possible to rate the building according to the NABERS rules. However, this will be a matter of professional judgement for a NABERS Accredited Assessor.
Exemptions from information gathering provisionsThe Act sets out information gathering provisions that
enable accredited assessors to obtain information and gain access to a building or tenancy to conduct an assessment.
Generally, owners and tenants must comply with an information gathering notice issued by an accredited Assessor. However, under certain exceptional circumstances, owners and tenants can apply for an exemption from these requirements.
Transition periodUnder the Act there will be a transition period for the first
twelve months of the program.The Act commenced in July 2010, but the energy
efficiency disclosure obligation did not commence until 1 November 2010.
From 1 November 2010 to 31 October 2011, a NABERS base or whole building rating can be disclosed instead of a full BEEC. This applies whether the office is a building or an area of a building.
In order to meet the Act requirements, the NABERS Energy rating must: -n be obtained either before or during the transition period;n be a base building or whole building rating;n be current; and n be publicly accessible on the Commercial Building
Disclosure program website. From 1 November 2011, a full BEEC will need to be
disclosed and must be publicly accessible on the Building Energy Efficiency Register.
ConclusionOwners of office buildings should obtain an energy
efficiency rating as soon as possible to avoid delays in sales or leasing.
Owners may also wish to consider whether any upgrade works or changes to building operations should be carried out to improve the building’s energy efficiency.
Should you require any further information on the above please contact Sheena Joshi on (02) 9411 4466.
Property Law Continued
Family Law
We have noticed an increase in separated couples living together in the former matrimonial home either
because one party refuses to move out or because neither party can afford to move until the property settlement has been completed. Separation under the one roof is challenging and can be a source of ongoing conflict with relatively limited legal solutions.
Take the example of Nick and Anna. Nick and Anna had
ongoing difficulties in their marriage which culminated when
Nick came home drunk from work and made threats against
Anna when she told him not to wake their sleeping children.
Nick’s behaviour was threatening and Anna contacted the
police who took out an interim, or temporary, Apprehended
Violence Order against him. Consequently Nick was
restrained from being
in the home if he had
consumed alcohol
within the previous
12 hours or if he was
consuming alcohol.
Anna sought our legal
advice about whether
she could legally force
Nick to move out of
the home altogether
given that they were
now separated.
The Courts,
and the Police,
when issuing
A p p r e h e n d e d
Violence Orders
(AVOs) are generally reluctant to order a person to leave
their home unless there is good reason to do so. Under the law
a person is entitled to remain living in their family home even if
the property is not registered in that person’s name.
The Police can issue a wide range of interim AVOs which
include limiting when a person can approach the other party
or enter the home. They can issue a broader AVO to prevent
any contact with the other party or an order that the offending
party leave the premises and not return for the duration of the
order. If the police do not take out the AVO, then an individual
can also apply for a private AVO through the Local Court.
Once the interim AVO has been made, then the matter
is listed before a Magistrate at the Local Court. A police
prosecutor acts on the protected person’s behalf. In this case,
Nick agreed to having a final AVO made preventing him from
approaching Anna and the children if he had consumed alcohol
within 12 hours. The Magistrate agreed to
make the order on these terms. For Anna
however it meant that Nick, provided he
was not drinking alcohol, could remain in
the home. She wanted him to move out
however she agreed to the making of the
limited AVO.
The Family Law Act provides two other
mechanisms by which a person may seek an Order restraining
the other person from entering or remaining in a place of
residence. These orders are frequently referred to as “sole
occupancy orders”. Section 68B of the Family Law Act enables
the Court in parenting proceedings to make an Order
restraining a person from
entering or remaining in a place
of residence, employment or
education of the child. In
those circumstances the Court
would need to be satisfied
that the making of an Order
is necessary to protect either
the child and/or other
persons living with the
child or having responsibility
for that child including the
other parent. Consequently
there is case law in which
a father was verbally hostile
and abusive towards the
mother in the presence of
the children. While the father
was not physically violent, the
mother successfully obtained an Order under Section 68B.
However, to obtain this order, parenting proceedings need to
be commenced in either the Federal Magistrates Court or the
Family Court of Australia.
In Anna’s case, the children did not witness any outbursts by
Nick towards Anna and, while their marriage had ended, the
parties remained relatively amicable and were working together
towards selling their property without litigation so that they
could afford to live separately and apart. Consequently this
Section 68B would not assist Anna.
The second sole occupancy order that can be made is
pursuant to section 114B of the Family Law Act. Again the
Courts will exercise great caution before ousting a person from
their home in deciding whether or not to make the order. The
Court must be satisfied that there are compelling reasons for
ordering a person not to return to their home, such as family
W
Can I get my Ex to Move out of the House on the Breakdown of our Relationship?
Annabel Murray
Guarantees
I In 2010 an important case of Macquarie Bank v Thomas was determined by the Courts. A property
development failed and the bank issued proceedings against
the guarantors. Creatively one of the guarantors sought to
argue that, although he had signed the guarantee, there was
inadequate “consideration” for his guarantee as he did not
receive a benefit from providing the guarantee. However, the
Judge concluded that there was adequate consideration in
that the terms of the guarantee itself left no room for doubt
that the guarantee was provided in consideration for the
provision of the loan by the lender to the borrower. In the
guarantee documentation the guarantor also acknowledged
incurring obligations for valuable consideration received from
the lender.
Accordingly the technical defence raised by the guarantor
failed.
Please photocopy the form below and fax it to 02 9412 3657 G1 - 11
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Family Law Continued
violence. The Court will take into account the circumstances
of the particular case and consider whether or not it would
be reasonable, sensible or practicable to expect that person
to remain in the home longer. Consequently the Court would
need to take into account which party could afford to obtain
alternate accommodation, the practicality of obtaining that
accommodation and the benefits in making such an Order.
It is important to note that if a Sole Occupancy Order was
made, it does not confer on the remaining party any extra
entitlement to the property nor confer any assumption of
ownership of it. In Anna’s case it would be very unlikely that
the Court would make an Order preventing Nick from living in
the home.
In these circumstances Anna adopted a practical approach
and we put together a property settlement offer for her and
Nick which after negotiations was agreed upon. The parties
sold their property and used the net sale proceeds towards
setting up their own separate accommodation.
For any questions regarding Family Law generally, call
Annabel Murray on (02) 9411 4466.