The OHL Wire #19

March 2016

ISSUE

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19

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Housing Laws Changes How Do They Aect Senior Residents in NSW?

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The Role of Grandparents in Modern Families and Their Rights in Family Law

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Can Police Enter My Property Without a Search Warrant

LEGAL - WEALTH PROTECTION - INVESTMENT - BUSINESS - LIFESTYLE - SYDNEY

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Tips for Slip and Falls Injuries

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Multiple Property Purchases: Stamp Duty in Australia

Housing Laws Changes How Do They Aect Senior Residents in NSW? The Strata Schemes Development Bill 2015, passed by the NSW Parliament last October, contains a collection of reform provisions covering everything from pets to parking. But it is Section 10, dealing with collective sales and renewals, that has senior residents and their advocates particularly up in arms.

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“Kicking Granny to the curb” stops only slightly short of how some have characterized the provision that changes the consent required for a decision to sell to a developer. The actual provisions of the law, which will go into effect mid-2016, are somewhat more nuanced. They include protections for the rights of senior residents and others at risk, but guarding those rights will take vigilance and a willingness to act when necessary.

Balancing interests of owners and redevelopers An estimated three million people live in strata title apartments, the most common form of apartment ownership in Australia. Under prior NSW law, for a deal to go forward, all of the residents who owned flats in an apartment building were required to agree to the buyout terms. When the changes take effect only 75 per cent will need to agree. Those in the dissenting minority will, in fact, be required to sell, despite their wishes to the contrary.

Fair Trading takes the position that the changes will: • deliver urban renewal; • boost housing supply in the places where people want to live; and • empower lot owners to realise the full potential of their strata building while making decisions in a democratic and transparent way.

A five-step process A five-step process Strata schemes must work through a five-step process to consider a collective sale and renewal proposal.

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Owners must vote to opt into the process. If more than half of the owners do not support the decision no further action may be taken.

The proposal to sell or redevelop a scheme must first be considered by an executive committee and thereafter at a general meeting of all owners.

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If 50 per cent or more of the owners agree to pursue a proposal, then a committee must be elected to investigate and develop the proposal with the assistance of professionals such as valuers, lawyers, and tax experts.

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The strata renewal committee will develop a plan that must address the amount that each lot owner will receive under a collective sale, the costs and liabilities that will be faced by the owners’ corporation and the proposed settlement date and arrangements for moving out of the building.

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The law attempts to protect the interests of lot owners by: • requiring they be paid at least the market value of their lot plus moving costs; • giving the Land and Environment Court the power to reject a renewal plan that is inequitable, offered in bad faith or which does not permit owners due process; and • establishing a free NSW Government advice service for all owners and a free advocacy program to assist those most in need, including the aged and disability pensioners.

The plan must also include a full and frank statement by the proposed purchaser or developer regarding the intended use of the strata parcel.

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Owners will have a minimum of 60 days to consider the plan and seek independent advice. Those in favour of the plan will sign a support notice, which will be given to the secretary of the owners’ corporation. The plan will lapse if it is not supported by 75 per cent of owners within 12 months.

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But is it enough to protect

senior residents?

On paper, there appear to be several layers of protection for the rights of lot owners and more vulnerable senior residents in particular. But the inequality in economic bargaining power between developers and lot owners is undeniable. That is likely the greatest source of unease among those who wait and watch to see how the law will work in practice.

None of the measures designed to ensure a transparent and democratic process, thorough judicial review or effective assistance to those displaced by urban renewal are self-executing. They require diligent monitoring and advocacy. Failing that, Granny actually could find herself on the curb.

If you have questions about how the changes introduced by the Strata Schemes Development Bill 2015 will affect you or your family, please call Owen Hodge Lawyers at 1800 770 780 to schedule a consultation. We look forward to working with you.

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The Role of

Grandparents

in Modern Families and Their Rights in Family

Law

The role of grandparents in modern families is as multifaceted and various as there are families. Increasingly, however, grandparents provide essential childcare assistance and, in some instances, may have to step into the shoes of parents as primary carers.

But what then are their rights?

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Grandparents often must act to safeguard those rights and, depending on the issue, they have several avenues under the law.

Not just the cookie baker anymore Traditionally grandparents, especially grandmothers, have been thought of as an extra source of treats, love, patience and wisdom. Increasingly, however, they are taking over a greater share of routine daily care.

Sadly, grandparents also frequently are finding they must take over the full responsibility of parenting when adult children become ill, disabled or suffer from addiction to drugs or alcohol.

This can have serious economic consequences for grandparents and grandchildren. Most grandparent families are poorer than other families, with a little under two-thirds living on government benefits and pensions. Nearly half are managing without a partner.

As a result, many children living with grandparents are financially disadvantaged. It can be a hard situation for all involved.

Acting to safeguard grandchildren Grandparents may find themselves faced with needing to act to safeguard the emotional, physical or financial welfare of their grandchildren in a number of situations.

This may occur when an existing emotional bond between grandparents and grandchildren is at risk because parents are divorcing or the grandparent has become estranged from one or the other parent.

More urgently, grandparents may be the first to become aware that a grandchild is at risk from abuse, violence or neglect in the home.

Finally, grandparents who have become full-time carers may need to safeguard the children’s financial welfare by seeking financial assistance from the Commonwealth.

Preventing Estrangement The Family Law Act recognizes that the care and company of family members, including grandparents, is a valuable asset for children. Divorce, re-marriage or some other basic rearrangement of the family structure may put that relationship at risk.

Grandparents, however, often find themselves having to tread carefully for fear of deepening alienation.

When one or both parents restrict the child’s access to grandparents, the first and best choice is often mediation. An agreement reached through mediation PAGE 5 7 PAGE

may be incorporated into a court order or a parenting plan. Although the latter is not binding or enforceable in Court, it may be helpful for parents and extended families in managing a changing network of relationships. Nonetheless, when mediation fails, grandparents still have the option of seeking an order permitting time with the children. A Court must determine that this is in the best interests of the child.

Preventing Abuse Grandparents may be the first to suspect children may be subject to abuse, neglect or family violence.

In this situation, they have three possible courses of action. An informal arrangement under which grandparents assume temporary care of the children is often the first step, but in more serious situations, it may be necessary to contact the police, even at risk of antagonizing the parent.

Grandparents also may make an urgent application to the Family Court for a Parenting Order. Finally, if the Department of Family and Community Services (FACS) thinks it is necessary to intervene to protect a child or young person, grandparents may become involved and may be able to have the children placed in their care.

Preventing Poverty Grandparents who have the legal responsibility and at least 35 percent of the day-to-day care of grandchildren may be eligible for financial assistance from the Commonwealth. Options include: • • • • • • • • • •

Family Tax Benefit Parts A and B; Child Care Benefit; Child Care Tax Rebate; Baby Bonus; Maternity Immunisation Allowance; Double Orphan Pension; Carer Allowance; Youth Allowance; Health Care Cards; and Medicare benefits.

The Family Law Act recognizes children have a right to the opportunity for a meaningful relationship with the adults who love and care for them, including grandparents. If you fear losing this bond with grandchildren because of divorce or estrangement, or suspect your grandchildren are in peril from family neglect or violence or simply need assistance in shouldering your newfound role as primary carer, we are here to help. Please call us at 1800 780 770 to schedule a consultation, so we can help you explore your options.

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Can Police Enter My Property Without a Search Warrant?

In New South Wales, the police may enter a home or other premises without a warrant if they believe someone there has suffered a significant physical injury or is in immediate danger of injury or if entry into the premises is necessary to prevent a breach of the peace.

Withholding Consent

If you choose to withhold consent, you must do so in utterly unambiguous terms, saying no more than absolutely necessary. Standing on the doorstep, arms akimbo and replying, “Really? I don’t think so,” may be satisfyingly snarky, but not sufficiently unambiguous.

The police have a great deal of discretion to infer consent.

Instead, state clearly you are not inviting the police officer in and you do not consent to the officer remaining on any part of your property. Be firm, brief and polite. Obey directions to avoid being charged with obstruction. Record the names of any witnesses who see and hear you refuse to allow police to enter your home. Do not answer police questions while they are requesting entry or searching your home.If you withhold consent, the police will decide whether circumstances justify a warrantless search. If they decide to seek a warrant, you should expect them ‘to return in very short order. Use that window of opportunity to summon a solicitor.

With a Search Warrant

With a warrant, the police may search, but only to the extent of the warrant and only for a reasonable period of time. They may not damage a building unless a Supreme Court judge has expressly granted them that power.

Many criminal prosecutions turn on the question of whether law enforcement officials exceeded the limits of a warrant in conducting a search. Authorisation to search a home may not necessarily extend to the yard, acreage, outbuildings, mobile homes, mobile phones, laptops, vehicles or a person’s body. Insist on seeing the warrant and note any details that seem incorrect. The police also must outline the powers given to them under the warrant, including whether they may: • detain anyone present to find out if they have anything sought under the warrant; OVER 60 YEARS OF TRUSTED EXPERIENCES

• remove wall panels, floor panels and ceiling panels while searching for evidence; • take photographs of things that might be evidence; • dig up the yard; • seize items as evidence;

Without a Warrant

Police may also conduct a search without a warrant. But the exceptions tend to be narrowly drawn and interpretation may vary from jurisdiction to jurisdiction.

These circumstances may include: • preventing domestic violence; • apprehending someone who has escaped from prison or from arrest; • arresting someone; • investigating traffic offences; • searching for evidence that may otherwise be hidden or destroyed; • reaching a crime scene; • preventing or controlling disorderly events; or • if there are circumstances in a public place or school likely to give rise to a serious risk to public safety.

Special Emergency Powers

Emergency powers may be authorised by the Commissioner of Police in the event of large-scale public disorder, immediate threat of such disorder or for situations such as global forums or visiting dignitaries.

Under these circumstances, the police may: • cordon off areas and set up roadblocks; • request identification; • search people and vehicles; • seize and detain vehicles and mobile phones; • declare and enforce alcohol-free zones; and • disperse crowds.

The requirement that police obtain a warrant to enter property to conduct a search is part of Australia’s proud common law heritage. However, even this fundamental building block of criminal procedure has its limits. It is a serious matter if you have been subject to a warrantless search or believe law enforcement officials have exceeded the limits of a warrant in conducting a search. Please contact the attorneys at Owen Hodge Lawyers at 1 800 770 780 as soon as possible.

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Tips for Avoiding Slip and Fall Injuries could happen anywhere.

• Wear sensible shoes. When out walking around, it is a good idea to wear shoes with level soles and bottoms that provide a good grip and good traction.

When a slip and fall does occur, victims need to understand their rights and business or property owners need to understand their potential liability. OHL Lawyers can provide assistance after a fall. happens and can provide advice on fall prevention.

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Call today to learn more.

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• Avoid distractions. Talking on the phone is a cognitive distraction that can make it more difficult to pay attention to what is going on around you. Looking down at the phone and texting or reading emails is even more dangerous than talking on the phone as you walk, since when you are looking down you will not see obstacles in your path.

• Cultivate environmental awareness. Never assume the area where you are walking is completely free of obstacles and risks. A spill of slippery material or an unexpected crack in a tile are among the many hazards that

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Slip and falls are the second leading cause of workplace accidents, Employers and owners of both residential and commercial property have legal obligations to make their premises reasonably safe and to prevent falls. This can include improving lighting levels in darkened areas; repairing cracked or loose flooring materials; and avoiding debris and cabling in walkways. While the obligation is clearly on business and property owners to prevent slip and fall injuries, the general public also should be aware of the very real dangers. Here are some tips to reduce the occurrence of a fall:

Purchasing property can result in the assessment of a tax payable on the transfer of land. This tax is called a stamp duty and it is imposed by the state and territory.

The rules for a stamp duty differ depending upon where a property is located. The amount generally is calculated based on the greater of the land's market value or its purchase price inclusive of GST.

transactions is required when the relevant revenue office believes the purchases substantially formed one transaction. Factors that determine whether aggregation will occur include:

• Whether any of the property transactions were conditional based on any other of the When purchasing multiple proper- transactions.

• Whether the same parties are ties, determining the stamp duty involved in multiple transactions owed can become very compli(this is not required). cated. It is important to be aware • Whether any of the parties to the that when several transactions transactions are related to other triggering stamp taxes all are parties involved in any of the related, the transactions can be transactions. aggregated.

• The time period during which the transactions happened. In NSW, When Are Transactions transactions can be aggregated Aggregated? only if they happened within a Under the Duties Act 2001, year of each other.

• Whether the property on which a aggregation of multiple PAGE 7

duty is assessed was used jointly by the transferees and transferors before the transactions took place or will be jointly used after the transaction.

• The process of negotiating the property deals, and whether any discounts were provided in exchange for the transferee acquiring multiple contracts. .

If the transactions are aggregated and the multiple property purchases are treated as one transaction, the stamp tax or transfer duty will be calculated on the total consideration or total value of all the transactions. OHL Lawyers can assist you in determining if multiple related dutiable transactions will be treated as a single transaction and will help you understand the implications for stamp taxes if this occurs.

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What’s On in Sydney Mundane Matters exhibition

Pilot career seminar

IOT: Data security forum

3 March to 15 March Wedge Gallery, Kinokuniya, Level 2 500 George Street, Sydney

9 March, 2 pm - 7:30 pm UTS, Building 10, 235 Jones St, Ultimo NSW 2007, Australia

10 March, 6 pm - 10 pm 194/196-204 Pitt St, Sydney NSW 2000 02 6651 5199

Discover the unseen wonderland inside every fruit and vegetable. Danling Xiao aka Mundane Matters is bringing her wicked creations from Instagram to real life, debuting her solo show at Wedge Gallery, Kinokuniya.

With 50 billion connected devices by 2020, cyber security is a business-wide issue and not just a technology risk – government and business leaders require new thinking about data protection to facilitate the adoption of IoT innovation in Australia.

Learn what is involved to become a commercial pilot. Professional Pilot Training specialises in the personalised education, training and personal development of a small group of aspiring commercial pilots each year.

Garden Design Series

ARTEXPRESS 2016

Earth Hour 2016

10 March, 6.15 pm - 8.15 pm 89 Macquarie St, Sydney NSW 2000 02 9231 8182

16 March to 15 May Art Gallery of NSW 02 9225 1744

19 March, 8.30pm to 9.30pm Sydney CBD. George Street, Sydney 02 8228 6887

From concept to construction, hear from four renowned garden designers about the beautiful spaces they have created, the challenges they have experienced and the trends they have embraced (or not!).

The exhibition encompasses a broad range of approaches and expressive forms, including ceramics, collection of works, documented forms, drawing, graphic design, painting, photomedia, printmaking, sculpture, textiles and fibre, and time-based forms.

In 2016, Earth Hour in Australia will celebrate the places we love that make our outdoor lifestyle and the Aussie way of life so great: our breathtaking beaches, forests, reefs, national parks, snowcapped mountains, rivers and farmland which uniquely distinguish Australia as the lucky country.

The Unsung Trailblazers of Astronomy

Vaniday's Biggest Manicure

Fallen City

24 March, 6 pm - 9:30 pm 6 College Street, Sydney 9320 6225

24 March, 2 pm - 6 pm Martin Place, Sydney 02 92814190

25 March, 6 pm - 7.45 pm China Cultural Centre (Sydney) Level 1, 151 Castlereagh Street, Sydney

The annals of astronomy are littered with the household names that have shaped our understanding of the Universe – Galileo, Kepler, Newton, Herschel, Einstein, Hubble, Hoyle and so on. But many of these scientists relied for their breakthroughs on the work of unsung trailblazers.

Vaniday is hosting the biggest manicure event of all time.Vaniday will be offering free 15-minute manicures at Martin Place on 24 March. Consumers simply have to stop by Martin Place, download the Vaniday app, and sign up for a free nail session.

Fallen City (2013) follows the survivors of the 2008 Sichuan earthquake to embark on a journey in search of hope, meaning and identity. Zeroing in on 3 broken families, the film explores the hearts and minds of ordinary rural Chinese forced to rebuild their lives in an empty world.

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