Professional indemnity (PI) insurance is a must in Australia’s increasingly litigious society. But how many industry professionals really know how their policy works? One Queensland-based principal discovered, to their cost, that they didn’t.
It was a bitter $5,000 pill to swallow.
Or so says Chris Crasto, the principal at Crasto Properties in Robina, Queensland, who wrote to Real Estate Business last year in relation to a personal injury claim that he had received. An excerpt from his letter follows:
“Recently, for the first time in 14 years, we received a personal injury claim from a solicitor on behalf of one of our tenants who slipped on a steep, wet driveway and broke her ankle. She had been living in the property for over 2.5 years and has never mentioned issues with the driveway. Yes, it is steep and the house is over 10 years old, but it is not damaged or in disrepair.
The solicitor, who is a pro bono lawyer, is suing us and the owner of the property for negligence [for failing] to advise the tenant that the driveway could be slippery when wet. Under normal circumstances, I would have assumed that an owner’s public liability insurance should deal with this.
However, the solicitor is taking a blanket approach and the basis is that as we represent the owner, then we are liable.
We passed on the solicitor’s letter to [the insurance company] with whom we have our professional indemnity insurance, and we received an email stating that as a claim had been received, we were up for the $5,000 excess as they would have to defend the claim irrespective of whether there was a case or not or if we were negligent or not.
The challenge I see as a principal is that if every time a pro bono solicitor types up a letter of claim on behalf of a disgruntled or opportunistic claimant, we get slammed with a $5,000 excess.
In our case, my instinct was to send a letter from a solicitor refuting the claims. We were told by our insurers that we were not allowed to communicate with the claimants as that could void our policy.”
It was this letter that prompted Real Estate Business to ask a number of industry professionals what principals (and property managers) need to be aware of when taking out a policy.
Real Estate Institutes call for clarity on procedures in electronic transactions legislation
In brief - Repeal of exemptions will facilitate broad use of e-contracts
All nine Australian Real Estate Institutes have, in a single submission to all nine Australian Attorneys-General, called for the reform of Commonwealth, state and territory electronic transactions legislation to enable contracts for sale of land and other property-related documents to be created via on-line forms (e-contracts) that are safe and simple to understand and use.
Exemptions obstruct development of property industry e-contracts
I co-ordinated this single joint submission together with Tim McKibbin, CEO of the Real Estate Institute of New South Wales. We lodged the submission in November 2015 to all Australian governments.
Specifically, we seek the repeal of electronic transactions provisions (called "exemptions") which are confusing the procedure that should be followed if:
an e-contract needs to be signed by a company
a signature needs to be witnessed
an e-contract relates to a land transaction (South Australia only)
These exemptions are obstructing the development of consumer friendly e-contracts for most property-related transactions, including land sale contracts, sales agency agreements, residential and retail lease agreements and property management agreements.
The exemptions have created uncertainty and confusion as to what procedures should govern property industry e-contract transactions, and have, as a result, seriously delayed the development of property industry e-contracts that a consumer can easily access by computer and are safe and simple to understand and use.
Each attendee will receive a comprehensive workbook which will be an extract from the Property Management Excellence PME manual– the contents are what will be discussed and given in detail as set out below (chapters 9 and 13).
9.1 Inspections, best practice and the law
9.2 Taking of photos
9.2a Looking inside cupboards during inspection
9.3 Reporting to the lessor and system of reporting
9.4 Follow up
9.5 Grounds (reasons) for entry under the Act
9.6 Significant breaches during the tenancy
9.7 If the tenant refuses entry
9.8 General tips for carrying out a routine/general inspection
9.8.1 Tenant not keeping the property clean
9.8.2 Tenant caused damage to the property
9.8.3 High risk situations
9.8.4 Tips on how to complete routine inspections
9.8.5 Times inspections can be carried out or entry can be gained
9.8.6 RTA Fact sheet regarding entry to the rental property
9.9 When a notice is deemed served to a tenant (and lessor/agent)
13.1 Maintenance – an overview
13.2 Emergency maintenance
13.2.1 Procedure for emergency maintenance
13.3 Routine maintenance
13.4 Lessor obligations and maintenance
13.5 Tenants’ rights regarding maintenance
13.5a If a tenant ends the tenancy due to Form 11 or Form 13 and is disputed by the lessor (maintenance)
13.6 Maintenance policy for agencies
13.7 Maintenance policy of the agency for lessors
13.8 Maintenance policy of the agency for tenants
13.9 Appointing contractors and tradespeople
13.10 Maintenance work orders
13.11 Lessor wishing to carry out their own maintenance
13.12 Lessor wishing to use their own contractors for maintenance
13.13 Lessor failing to carry out maintenance – a possible risk
13.14 Preventative maintenance
13.15 Tenant refusing entry to carry out maintenance
13.15.1 Entry for renovations and or improvements to the property
13.16 Email/Letter scripts to communicate maintenance to lessor and tenant
13.17 Rent reductions and maintenance
13.18 Request for funds from the owner to pay for maintenance, renovations, accounts
13.19 Contracting outside the Act
13.20 If a tenant issues a Form 11 that is not agreed upon or in dispute
Please note the Cairns and Townsville event was held in April 2016. The remainder of Queensland will be presented from June to August. One event per area.
Some Australian real estate agents are updating their rental leases to stop tenants from secretly subletting properties on Airbnb.
One lease, seen by the ABC, said the tenant must not use Airbnb without the "written consent" of the landlord in each instance.
Candice Deane, a senior property manager in Melbourne, said this clause gave landlords more protection.
"Security and maintenance are the main issues, and if we approve that tenant, we want that person to be the person in the property," Ms Deane told the ABC.
"We discourage [sub-letting on Airbnb]. We don't motivate it and we don't want it to happen."
Ms Deane said in one case, she discovered a tenant was renting out an apartment on Airbnb while they were away on holidays.
"She was leaving keys in the mailbox for people to come and collect. So quite a few of the other occupants got really concerned about keys being left, who's getting them and what's going to happen to her apartment," Ms Deane said.
"She was also asked to leave."
In another instance, a Melbourne tenant was making thousands of dollars a month by hosting Airbnb guests full time in a leased apartment.
Malcolm Gunning, president of the Real Estate Institute of Australia, said agents had been forced to take more control over sub-letting.
"It's primarily apartments where the biggest impact is, but even [for] a terrace house or home, the owner wants to know how many people are going to live in it because of the impact on the services," he said.
"If a property is really intended for two and you have six, that's three times the impact on the property itself. Water usage, the hydraulics, the sewage system, and just wear and tear in the house."
Airbnb Australia's Brent Thomas said all people had a right to share the home they lived in, regardless of whether they were an owner or renter.
"Home sharing helps everyday Australians earn a little extra money to pay for their biggest expense — the cost of their housing," he told the ABC.
"We ask all hosts to certify they have permission to list their space and remind them to check and follow local rules before they list and throughout the year.
"A tenant who shares a spare room whilst they're living there or the whole home whilst they're away on holidays is actually a good use of their home."
Airbnb has an insurance program called Host Guarantee, which provides protection for up to $1 million for eligible hosts for damages.
Landlord says he'll insert 'Airbnb clause' into next lease
Sydney-based landlord Patrick Morrisey has leased out his rural property in the Byron Bay hinterland for the past few years.
His past two tenants sub-let rooms on Airbnb without his knowledge.
He said he was alarmed when he found out, because it raised liability issues and increased maintenance costs.
"The first time I visited, I saw a sign on the front fence and a new name had gone on the property. So I Googled that and it came up on Airbnb," he said.
"And with the second set of tenants, a friend of mine flicked me the page from the Airbnb site."
He said he set the rent so that local residents could afford to live there, and he did not intend for it to be run as a tourist operation.
"I found it quite distressing because the rent was really set at a price for affordable accommodation for locals, and those people were missing out on those opportunities because my tenant preferred to have tourists coming to stay on a one-nightly basis," Mr Morrisey said.
"I found it to be unfair and it put more risk on me as a landlord because we never had any discussions along those lines and they were doing things without permission."
He said once his current lease ended, he would take on a lease that specifically addressed Airbnb.
People 'should be able to make decisions about their housing'
Ned Cutcher from the Tenants Union of New South Wales believes a renter should be allowed to share their leased property on Airbnb — as long as they bear responsibility for any problems.
"It's the kind of decision a rational adult person should be able to make about their housing," Mr Cutcher said.
"The idea that because your household is established with a residential tenancy agreement rather than a mortgage, that you should somehow be restricted in the decisions that you can make is something that I struggle with."
Mr Cutcher said hosting an Airbnb guest was no different to a renter choosing to bring in a flatmate or sub-letting the property while on holidays.
"In Australia we have this idea that property equals wealth. And I think that it's fair enough that some tenants would want to try and tap into that a little bit as well," Mr Cutcher said.
"I don't see any kind of moral problem with a tenant seeking to profit from their interest in a property in the same way as anyone else would."
However, Mr Cutcher said he drew the line at tenants who leased a property to run as a full-time Airbnb without the knowledge of the owner.
"The idea that you're sharing available space while you're away is one thing. But if you've actually adopted a business model to extract the most value out of a property by letting it out on Airbnb, I do think that's a problem," he said.
Airbnb and Stayz – what is the impact on bodies corporate? - 12 May 2016
In recent years, there has been a vast increase in the use of online letting services, such as Airbnb and Stayz, which allow property owners to rent out their property for short term letting through websites that can be accessed worldwide.
The legislative framework has been slow to catch up to the changing nature of temporary accommodation and the “sharing economy” and bodies corporate have limited options to regulate behaviour within their schemes. An options paper released by the Commercial and Property Law Research Centre of the Queensland University of Technology (QUT) and recommendations made by The Grattan Institute offer some hope of changes being made to body corporate laws that will grant bodies corporate wider powers to control transient tenants in short term rentals. Read the full article here
From Real Estate Excellence - Stacey Holt
The property management industry and investors may be alarmed about the recent VCAT (Victorian tenancy tribunal) decision regarding AirBnB and rental property. The case sourced from www.austli.edu.au is below.
Real Estate Excellence have received a number of enquires from members in recent months over this concerning possible trend; particularly in the Sunshine Coast area of Queensland. Section 238 of the RTRA Act is the relevant section that applies to Queensland rental property. Real Estate Excellence will be conducting further enquiries into this matter and will advise members of Real Estate Excellence via the member update service of advice and follow up information regarding this concerning issue.
One of the main concerns is in the event of personal injury of a 'guest' who is using the premises as a 'hotel' as is suggested.