Real Estate Law Assignment: RES421 Civil Law Analysis

This assignment addresses various aspects of civil law relevant to real estate, covering key legislations and their implications. Task 1 analyzes the Consumer Guarantees Act 1993, Health and Safety at Work Act 2015, Human Rights Act 1993, Privacy Act 1993, and Secret Commissions Act 1910, along with their breaches. Task 2 examines the responsibilities and breaches of landlords and tenants under the Residential Tenancies Act 1986. Task 3 offers advice on fencing obligations under the Fencing Act 1978 and Building Amendments Act 2016, including the legal requirements for spa pools, and the importance of disclosure obligations under the Real Estate Agency Act 2008. The assignment includes practical examples and scenarios to illustrate the application of these laws, providing a comprehensive overview of real estate law principles.

Assignment -3
Civil Law
2019
Student
1/1/2019

Assignment- 3
Table of Contents
Task 1.........................................................................................................................................2
Task 2.........................................................................................................................................4
Task 3.........................................................................................................................................6
Bibliography...............................................................................................................................9
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Task 1
a)Legislations :
i. Consumer Guarantees Act 1993- The act lays essential guidelines as per which while
delivering any of the services to the customer which can be renting or selling a home,
there has to be reasonable care and skill which must be present and the property
rendered must meet the desired purpose. In terms of real estate there are certain
aspects of the act in terms of goods and services:
 Goods must be of acceptable quality
 Services has to be performed under reasonable care and skills
 Must be suitable for usual purposes
 Services must be accomplished within time frame
 Must carry a reasonable price for quality and type and not exceeding market
cost
For example: If a customer seeks a place for dental clinic and specifies the desired
location as market area but breaching the requirement, agent sells a property in
outskirts.
ii. Health and Safety at Work Act 2015- Under this act the salesperson as well as the
property managers must stay informed and cautious about steps to be taken to reduce
hazard or risk at the property. As per the act one has to act reasonably practical in
eliminating, isolating and minimizing the risk. And as stated under section 22, the cost
of such elimination or managing the risk must be proportionate to risk as a whole.
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For example, if one is driving clients and the customers in one’s car the vehicle is one
of the parts of workplace and hence one has to ensure its safety, good condition,
registration and warranty.
iii. Human Rights Act 1993- The act aims at minimising or retard the discrimination in
the society. In terms of real estate , following must be taken care of during :
 Business and employment practices
 In Goods and Service
 In land, housing and accommodation
Any kind of discrimination under such categories in terms of age, sex, religion or ethnicity
will be barred. Also, a mere participating in such sort of discrimination must be avoided.
For example, if a client or property owner denies to trade or rent a property to another
because of the religion from which latter comes from, such case will be clear violation of the
act.
iv. Privacy Act 1993- The act looks into protecting any kind of private information of an
individual as one’s right. Any organisation or person who holds such information
about the other must handle with it carefully and in the rightful manner. In real estate
practice, three principles are laid:
 Such private information must be obtained sincerely and fairly with
knowledge of the concerned person.
 Personal information must be bought in use on fair grounds, keeping it up to
date and making it accessible to all in concern with it.
 Such information is not to be passed to others without consent of the person to
whom such information belongs to.
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v. Secret Commissions Act 1910- The act aims at minimising activities related to bribery
and corruption. There might be less instances of bribery but an agency might be
offered a reward for specific work .
For example when an agent refers a customer to a lender without disclosing that such
agent will be paid; it is an act of breach of the act on part of the agent.
However, in cases of gifts, which are secret commission and an agent has no
knowledge about it while performing the act, does not fall under such violation.
b) Breach of the acts:
Privacy Act 1993 breach- If any of the individuals are found to be breaching such act and
violating right to privacy of another, the individual whose rights are breached can move to the
court bringing legal actions against such person breaching the norms. In most cases court
issue injunction orders where by the offender cannot continue doing whatever one did while
performing the breach. Heavy penalties can also be imposed on such individuals for the
breach.
Health and Safety Act 2015- Breach of such act on part of an individual may lead to
substantial penalties. In case of workers breaching the act and acting reckless to the law,
might be subjected to a fine up to $ 300,000 or five years in prison. Workers failing to obey
the instructions related to safety and risk management can be fined up to $50,000.
Task 2
I. Landowner breaching the act: Falling under Section 2 of the Residential Tenancies
Act, 1986 the term “landlord” is used for the owner of the property. There are certain
duties of the landlord in the tenancy relations. And referring to that a landlord is
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responsible for keeping the premises in a decent condition including performing any
repairs and as a requirement of the act landlord must ensure installation of smoke
alarms within 3 meters of every bedroom. Thus, Mrs Krazinsky is liable for the
misplaced fire alarm and cannot blame the tenants for the same. The act guides the
landlord to allow reasonable enjoyment of the premises to the tenants but such
enjoyment shall not bring hindrance in peace and comfort of other tenants is also a
matter in which landlord has a say. Thus Mrs Krazinsky cannot raise objection over
the fact as to who all were and were not invited for the party by the tenants. However,
if such party bought disturbance to other tenants, she holds a right to object and
instruct. Lastly, the landlord is debarred under the act for entering the rented premises
without notifying the tenants in advance thus, Mrs Krazinsky un-notified entry is
barred under the act and thus she is liable for breach.
II. Tenants breaching the act- As per the act, it is prime responsibility of the tenants to
keep the premises clean and tidy. Also making changes in the premises without
permission of the landlord is restricted under the act. Even if smoke alarms are
malfunctioning the tenants are not authorised to temper with the same rather promptly
advise the landlord for such malfunctioning. The tenants are expected under the act
not to disturb other tenants of the landlord. And lastly take the responsibility of the
actions of visitors coming to the premises. In given case, Sai and his flatmates are
responsible for breaching all mentioned mandates of the act.
III. However, if the tenant and/or the landlord are not in the position to resolve issues
verbally and via mutual negotiation, the party always have a way out via issuing
notice to the other.
IV. .For example if Sai and his flatmates fail to perform their part in spite of verbal
discussions, Mrs Krazinsky has right to issue a 14 days’ notice from the date of issue
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including the delivery time .And via that she can explain that Sai and flatmates have
breached the essential mandates of tenancy and can state precisely what must be done.
The same remedy resides with tenants too and can exercise their right to issue notice
to the landlord.
V. In cases where the issues are still not resolved after the notices the other party who
served the notice can approach to Tenancy Tribunal for ending the tenancy where by
such termination notice must be given in writing.
Task 3
a) Dear Jan and Davre,
On your request I visited the property and noted certain observations in terms of
fencing. Certain portions of the house do require new fencing as the old fencing is
either in poor condition or does not serve the purpose for various reasons. Hence it is
advisable to replace the fencing in order to make it serve its purpose and also boost
the value of the property.
I. In this process, it is advisable to obtain financial contribution from the
neighbours. In order to do so, under the Fencing Act 1978, owners need to
provide a notice to the neighbours before starting the work, specifying details
like which part will be fenced, the type of fencing required, who will be
building the fence, materials which will be used, estimated cost for the same
and finally the date to start the work. In return to such notice, the neighbours
have 21 days to respond by either object or making a cross notice in writing. If
at all the two parties do not agree, the owners can start a mediation or
arbitration process, beginning a legal matter.
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II. Legal requirement for fencing spa pool-In cases where a property owner needs
to fence a spa pool, one has to comply with fencing mandates under Building
Amendments Act 2016.More over such fences need to be more precise in
nature as defined under the act. The property owner may convince the
neighbour to pay half the price of such adequate fence but cannot be insisted.
III. In terms of legal requirement for fencing the pool, section 162A Building Act
2004 promotes such fencing in safety directions and section 162A-168 of the
act lays the rules for the same. Before getting fencing done, owners might
have to seek building consent prior to starting such installation. And it is the
responsibility of owners, tenants to ensure right fencing of the pool. Until the
pool is not fenced rightly, the owner must empty the pool and breach of any
such compliance will attract a fine up to $5000.
Hope this clarifies much of it all.
Thank You!
b)Email to Jan and Dave:
Subject: Importance of disclosure obligation under Real Estate Agency act 2008
Dear Jan and Dave,
This is to brief you about the importance of disclosure obligation in terms of legal boundaries
of your property. Under the Real Estate Agency Act 2008, the person selling such property if
fails to disclose any fencing agreements or covenants related to such fencing or any other
fencing issues then such seller will risk oneself to legal obligation. In failure to such
disclosure, the person who deserves to be informed about such information can claim against
the seller or the agency involved for any damages as deemed fit. This can also extend to
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cancelation of the contract. In addition to this, a complaint can also be registered with the
Real Estate Authority (REA) for breach of RE Agents rule 2012 or under section 72
involving unsatisfactory conduct or section 73 involving misconduct. To the extremeness, the
licensee can be censured with chances of being fined or suspended too.
Therefore it is strictly advised to adhere to the norms of such disclosure obligations under the
act and is advised to maintain documents which states regarding any such covenants
regarding the fencing.
Thank You
Best Regards
Real Estate Agency
Bibliography
Residential Tenancy Act 1986
Fencing Act 1978
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