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There has been much discussion surrounding WA’s new Aboriginal Cultural Heritage Act 2021 (WA) (Act) which came into effect on 1 July 2023. Confusion and uncertainty arising from the new Act – meant to “clean up” previous heritage laws from the 1970’s – has resulted in calls for over-arching reform at a federal level to override the Act. In the meantime, the new Act subsists. A cause for concern? Perhaps not Landowners must remember that for more than 50 years it has been illegal to undertake activities that may harm Aboriginal cultural heritage, without approval. Critically, where there is NO Aboriginal cultural heritage present, there is NO requirement for approval. Further, substantial exemptions exist, including for activities on properties less than 1100sq metres. Even for low level activities (with no or minimal ground disturbance) if harm can be minimised, approvals are not required. And for farmers, “like-for-like activities” (such as building fences or planting crops on existing farms) are also exempt. The new system The new Act is meant to provide a legal framework to modernise Native Title laws through the introduction of a permit-based system that categorises activities, introduces practical exemptions and sets tiered approvals that align with the level of disturbance and risk of harm to Aboriginal cultural heritage. When approval is required There is only a need for approval where Aboriginal cultural heritage is present in the area, and it is not possible to avoid impact or harm. If present, your activity may require a permit, or may require consultation or an agreement with the local Aboriginal people.  A free “ACHIS” search is available via the Department of Planning, Lands & Heritage. What type of approval do I need The type of approval needed is based on the level of your activity, the scale of disturbance and the potential to impact Aboriginal cultural heritage. A tiered system is in place to help identify what you need to do and what type of approval may be required. Some activities are exempt. · Exempt – activities do not require approval · Tier 1 – activities do not require approval · Tier 2 – activities require a permit · Tier 3 – activities require a management plan Exempt – minor activity (no approval) A range of activities undertaken by landowners, farmers, the community and industry are exempt from requiring approval under the Act. Some exemptions include: · Residential development on land less than 1100sqm. · Installing and maintaining residential water, gas, electricity and other services. · Installing a patio, pergola, verandah, deck, pool or deck on residential properties. · Undertaking “like-for-like" activities eg: farmers working on established paddocks. · Maintaining existing firebreaks or additional firebreaks in the event of an emergency. · Ploughing, running livestock, replacing a fence or seeding an existing paddock. · Recreational activities on public waters and in public places. · All activities, including existing mining activities, approved under the prior act. Tier 1 – low amount of activity (no approval) Where there is no or only a minimal level of ground disturbance but where there is a risk of harm to Aboriginal cultural heritage, the activity may proceed subject to a requirement to undertake all reasonable steps possible to avoid or minimise harm to Aboriginal cultural heritage. Tier 1 activity would include installing a fence in a way that does not involve clearing is a Tier 1 activity and does not need approval. Tier 2 – medium activity (permit required) For activities involving low-level ground disturbance, the Act establishes a permit system based around due diligence and application to the Aboriginal Cultural Heritage Council. Tier 2 activities include erecting or installing a stock watering point or a yard, amalgamating lots or constructing villa style housing. A nominal $100 administrative fee applies for a permit. Tier 3 – high level of activity (management plan required) Activities that involve moderate to high level ground disturbance will require an Aboriginal Cultural Heritage Management Plan to be negotiated with the relevant Aboriginal parties. Tier 3 activities include digging a new mine site, deep excavation or land clearing, subdivisions or major construction projects. A scalable system of fixed and variable application fees applies for moderate to high ground disturbing activities. Due Diligence Assessment Before commencing any application, a Due Diligence Assessment is required in order to assess the risk of harm to Aboriginal cultural heritage. This will enable a proponent to determine how to proceed in relation to an activity. The Assessment will reveal if the activity is in a “Protected Area”, whether the activity should be carried out in an alternative location or using an alternative method, and what sorts of authorisations may be required. Do you have questions? · Is Aboriginal Cultural Heritage present on my land? · How do I undertake Due Diligence? · Does my activity require approval? · How do I determine whether my activity is exempt? · How long does it take to obtain a permit? · What are the fees for a permit or management plan?

After more than a decade since the last review of WA tenancy laws, major amendments are being made to the Residential Tenancy Act 1987 (WA) (RTA). A lot has changed during this time. The supply of housing has not kept up with demand. Labour and material constraints have resulted in delays in new home builds. Low vacancy rates combined with soaring rent increases have created tough market conditions for tenants. For owners, climbing interest rates and regulatory changes have caused them to leave the rental market. Tenants are seeking security of tenure. Overview of reforms The reforms to the RTA are made with a view to strike a balance between protecting an owner’s investment property whilst providing stability for tenants. The amendments will be implemented in phases. The most significant phase 1 reforms will: · prohibit “rent bidding” in WA · reduce the frequency of rent increases to once every 12 months · allow tenants to make minor modifications to rental properties · allow tenants to keep pets at rental properties · streamline the release of security bonds at the end of a tenancy · refer certain disputes to the Commissioner for Consumer Protection Prohibition of “rent bidding” Rent bidding is where prospective tenants offer an amount over and above the advertised price for a rental property, with the aim of being selected as the preferred tenant. Amendments to the RTA will see the practice curtailed, with properties being advertised for a fixed amount. Similarly, agents must not solicit or otherwise invite an offer of rent higher than the advertised amount. Whether the changes will also apply to private landlords or unsolicited offers from a prospective tenant remains to be seen. Limiting rent increases Presently, the RTA allows for rent increases to occur at six monthly intervals (if tenants are given at least 60 days’ notice and in the case of a fixed term tenancy, where the agreement specifies the amount of the increase or a method of calculation). However, proposed amendments provide for the frequency of rent increases to be reduced to once every 12 months (although, there would not appear to be a cap on how big those increases could be). This would bring WA in line with the approach taken in other jurisdictions. Keeping of pets For tenants who want to keep pets, the RTA presently requires permission from landlords (who can refuse a request without explanation). Tenants have no further recourse if the request is refused. Where permission to keep a pet is granted, lessors have the right to seek a pet bond (if the pet can carry parasites that can affect humans). Proposed amendments allow for tenants, in most cases, to keep pets at rental properties where they first seek permission. Landlords will only be able to refuse with the consent of the Commissioner for Consumer Protection and only when it is reasonable to do so. Landlords can, however, negotiate reasonable conditions for keeping a pet on the property. Minor modifications Under the current RTA, landlords can either prohibit a tenant from making alterations or affixing fixtures to rental properties, alternatively, allow modifications with consent. Proposed changes will allow tenants to have greater freedom to make minor modifications (eg: hanging hooks or pictures on a wall) without having to seek the consent of landlords. However, tenants should be aware that they may be required to restore the premises to its original condition at the end of the tenancy. Under the changes, tenants would also be entitled to make other (as prescribed by regulations) modifications with landlord consent. If consent is withheld, landlords must obtain an order from the Commissioner for Consumer Protection confirming that it would be unreasonable to make the modifications. Security Bond Bond disputes contribute significantly to the Magistrates Court’s caseload (affecting timeliness of other residential tenancy matters). Presently, the Bond Administrator may only dispose of a bond if the parties have agreed the amount or there are court orders providing the amount. The implementation of a more effective process for disposal will allow a tenant or landlord to apply either unilaterally or via joint agreement to the Bond Administrator for release of the security bond. The Bond Administrator will then seek the views of all other interested parties before release. In the absence of a response, or if the parties agree to the original claim, the Bond Administrator would dispose of the bond. If the claim is disputed, then dispute resolution would be undertaken between the parties. Dispute resolution Presently, residential tenancy disputes are heard exclusively by the Magistrates Court. Concerns have been raised about the length of time taken for some matters to be resolved, the absence of written reasons for decisions (creating the perception of limited transparency and consistency of decision making) and the stress and inconvenience of attending court hearings. Proposed changes will see some disputes (over bond payments, pets and minor modifications) referred instead to the Commissioner for Consumer Protection for determination. The remainder of residential tenancy disputes would continue to be heard in the Magistrates Court. The aim of this shift is to provide an accessible system that is fast, fair, cost effective and, where possible, maintains constructive relationships between parties. “Without grounds” terminations At this time, it does not appear that changes will be made to the “without grounds” termination provisions in the RTA. The current provisions of 60 days’ notice for periodic leases and 30 days’ notice for fixed leases, at this stage, remains. When are changes coming? Following the publication of the Decision Regulatory Impact Statement by the Department of Mines, Industry and Safety (providing recommendations in relation to amendments to the RTA following stakeholder consultation), the process for drafting phase 1 changes has now commenced. When the legislation will be enacted, however, remains to be seen.

Duplicate Titles have been a feature of the Titles Register since its inception in 1875. Where there is one issued, a Duplicate Title is a paper version of the corresponding original Certificate of Title, with some differences and limitations. Limitations Many people may not be aware that Duplicate Titles have a number of limitations. For example, caveats, memorials, notifications and property (seizure and sale) orders have never appeared on Duplicate Titles such that they do not give a true indication of the encumbrances on a parcel of land. Removal One of the key changes brought about by the Transfer of Land Amendment Act 2022 (amending the Transfer of Land Act 1893) is the removal of “paper” Duplicate Titles from the land conveyancing process in Western Australia. Why? Interestingly, Duplicate Titles have been optional since 1996. WA has been transitioning to this point for a long time. Finally removing Duplicate Titles will clarify and simplify conveyancing in a way that does not detract from the integrity and security of the WA land Register. The change also aligns WA with ongoing advancements in electronic conveyancing around Australia. What to do with your existing Duplicate Certificates Duplicate Titles that existed before Monday, 7 August 2023 are automatically rendered invalid. They DO NOT need to be returned to Landgate or destroyed. Practically, what does this mean? From Monday, 7 August 2023, anyone with a Duplicate Title need NOT take any action. There is NO change to the way registered proprietors, encumbrances and other interests in land are recorded and searched on Certificates of Titles in the land titles Register. Land transaction documents which have been lodged with Landgate, but which remain unregistered by close of business on Friday, 4 August 2023 will not be able to create or issue Duplicate Titles. In the meantime Until Monday, 7 August 2023, registration requirements continue to apply for all documents lodged until the changes take effect. However, with Duplicate Titles no longer having any legal effect on and after Monday, 7 August 2023, Landgate recommends NOT lodging applications to replace lost Duplicate Titles or Applications to issue Duplicate Titles leading up to August UNLESS required for a land transaction or settlement taking place on or before Friday, 4 August 2023. Keepsake? Landowners can retain Duplicate Titles as a historical keepsake if they wish.

So you have entered into a contract for sale of land (Contract) in Western Australia. Congratulations! But what next? This article sets out some of the matters to consider when buying and selling land in Western Australia. Appoint a settlement agent or lawyer In Western Australia, only a licenced settlement agent or lawyer can act for you in your conveyance of land. The main difference between employing a settlement agent as opposed to a lawyer is that a lawyer is able to give you legal advice, whereas a settlement agent cannot. For a buyer, we suggest appointing a settlement agent or lawyer as soon as possible after entering into the Contract. For a seller, you could wait until the Contract is unconditional, but there is no harm in appointing a settlement agent or lawyer immediately after entering into the Contract. Pay the Deposit If you are the buyer, don’t forget to pay the deposit as required by the Contract. For example, the Contract may require that the deposit is due to be paid to the seller’s real estate agent within 5 days after the contract date (being the date on which the last party to sign the Contract, signs it). Contact your bank If you are buying the property with the help of a bank or if the seller has a property which is encumbered by a mortgage, we suggest contacting your bank as soon as possible to let them know about the purchase or sale. If you are the buyer and the offer is subject to finance approval, we suggest contacting your bank as soon as the property is under contract. Your bank will usually ask that you complete a loan application form or similar to kickstart the finance process. If your application is approved, your bank should provide you with a letter of approval. If your application is not approved, you bank should provide you with a letter of non-approval. In both cases, you should provide the letter of approval or non-approval to your settlement agent or lawyer. If you are the seller, then after the Contract becomes unconditional (which might be immediately after entering into the Contract or later if the Contract is subject to finance) then usually you would need to complete a discharge authority form and lodge it with your bank. Transfer duty Transfer duty is imposed upon agreements to transfer land in Western Australia. It is the buyer’s obligation to lodge the dutiable instrument (usually the Contract) with RevenueWA and then once assessed for duty, it is the buyer’s liability to pay the duty. Your settlement agent or lawyer should guide you in relation to transfer duty lodgement and payment. Don’t forget to include transfer duty when calculating how much you will need at settlement, eg if the purchase price is $450,000 then transfer duty (at the time of this article) is an additional $15,390.00 unless you are a first home buyer, in which case transfer duty could be reduced to $3,838.00 (being the first home owner rate of duty). If you are a foreign buyer, then you may need to pay an amount additional to the transfer duty. Try our Settlement Costs Calculator here to estimate the amount of transfer duty payable. First home owner grant (FHOG) If you are a first home owner, you may qualify for the FHOG (currently $10,000) if you are purchasing or building a new home. If you receive the FHOG you may also be eligible for the first home owner rate of duty (see the above example first home owner rate of transfer duty). Foreign resident capital gains withholding clearance certificate If you are an Australia resident and you sell property for $750,000 or more, then you may need to obtain a Foreign resident capital gains withholding clearance certificate from the ATO. Failure to obtain a clearance certificate may mean that the buyer is required to withhold a portion of the purchase price (currently 12.5%) and pay it the ATO. You can apply for a clearance certificate from the ATO by using this link. We suggest that the seller seek a clearance certificate as soon as possible to allow for ATO processing times. Festive season With the festive season upon us, please allow for additional processing times (as some organisations close over the Christmas – New Year period) and the statutory holidays when calculating contract deadlines. If you have any questions in relation to buying or selling land in Western Australia, please contact us here.

Lessees have an interest in the land leased pursuant to the lease. But is that leasehold interest guaranteed? Well, the answer is maybe. This article discusses what happens to unprotected leases, when you should protect a lease and how to protect a lease. Primewest In Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd as trustee for Golden Asset Pty Ltd [2012] WASC 443 (Primewest) it was held that an unregistered lease for a term which exceeds five years is destroyed upon the transfer of the freehold property to a third party. Primewest considered section 68 of the Transfer of Land Act 1893 (WA) refers to the paramountcy of the estate of the registered proprietor, ie the registered proprietor holds the land free from prior unregistered interests. There is an exception in section 68(1A) for leases. The exception is for: “any prior unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession”; and “such lease or agreement is registered or protected by caveat”. For example, if a lease term is 4 years long and the lessee is in actual occupation, then it will be protected by section 68(1A). Alternatively, if the lease term is 7 years long and is registered or protected by caveat, then the lease will be protected. However, if the same lease is neither registered nor protected by caveat, then as contemplated in Primewest, the lease will be destroyed upon the transfer of the freehold property to a third party. How to protect your leasehold interest? If a lease is registerable, then our recommendation is to always seek to register leases. Registration of a lease will require the consent of all relevant interest holders and will therefore validate the lessee’s leasehold interest. However, if registration is not possible, then a lessee is free to register its leasehold interest on the title by way of caveat. Even if the term of the lease triggers the protection under 68(1A), a lessee may nonetheless choose to register a lessee caveat to put the world on notice of its interest in the property. How to lodge a lessee caveat? Landgate provides forms for the lodgment of caveats and provided the form is correctly completed, supported by the relevant evidence of the caveatable interest (being the lease for a lessee caveat) other required supporting documentation and lodgment fee, Landgate will register the caveat. In saying that, a successfully lodged caveat does not mean that the caveat is free of defect. For example, the caveatable interest could be incorrectly described leaving the caveat defective and the caveator unprotected. Accordingly, care must be taken when preparing a lessee caveat in order to ensure that the leasehold interest is adequately protected. Please contact us for assistance in lodging a lessee's caveat. Contact us.