Trade Marks and Building Names

The Federal Court recently decided in favour of the onsite manager against an offsite real estate agent in relation to use by the offsite agent of a trademark used by the onsite manager.  The trademark was the same as the building name, but this did not allow the offset real estate agent to use the building name as a trademark.

See

Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd 

[2017] FCAFC 56

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0056

"243    In our view, the underlying principle reflected in the reasoning quoted above applies to the circumstances of the present case. Apartment owners enjoy the right to describe the location of their apartment by reference to the words “Harbour Lights” and they enjoy the right to let their apartment so described at that place.  Neither they, nor any third parties, enjoy the right to provide the registered services from the building or from any other place by reference to the words “Harbour Lights” based on any notion of invoking, in good faith, the use of the words on the footing that, because the complex is called “Harbour Lights”, the words form part of the common heritage in the nature of a town, suburb or municipality. 

244    The words are, of course, the name of a particular building complex configured in the way earlier described and thus the words necessarily identify (like all names attached to a particular building) a place on the planet as distinct from other places but that does not mean that the words thus become part of the “common heritage” giving rise to a “likelihood” that other traders would want to make honest use of the words in connection with similar services as an expression of the exercise of a “common right of the public”. The primary judge correctly concluded that the trade mark is inherently adapted to distinguish the designated services of the owner from the services of others."

Western Suburbs Brisbane Apartments

A real estate agent has issued a interesting report regarding sales of houses and apartments in the Western suburbs of Brisbane (Indooroopilly, Taringa, Toowong, St Lucia.)  The report is available here.

According to this report, the 2016 market was worse than in 2013, 2014 and 2015, based on number of sales and also on total sales prices.

For example, in Indooroopilly, in 2015 a total of $130M in apartments were sold.  In 2016, this dropped to $60M.  In Toowong, $117M in 2015, dropped to $82M in 2016.

It seems that 2016 was a good time to buy but not a good time to sell?

The report lists the top 10 apartment sales in each suburb.  With a number of new buildings reaching completion in 2017, I suspect that the top sales in 2017 will be concentrated in a few of these new buildings.  For example, Aspect Property Group's Centra in Toowong has a number of apartments above $900,000 that settled in January 2017.  All of these sales will be higher than the top Toowong apartment sale for 2016, which was $862,500.

When looking a new buildings, keep in mind this report --  you may be paying top dollar!

Brisbane real estate agents say "sell now!"

I receive many newsletters and emails from real estate agents in Brisbane, especially those who specialise in Brisbane apartment resales.  All are advising that now is the time to sell, not the time to buy.  Some examples:

Position Property, Brad Munro:, Autumn 2016 newsletter

• "There is no denying that there are concerns over just how many apartments are being built across Brisbane."
• "The concern I have is that many of these developments are being sold anywhere from 80% to 100% to inventors.  Many of these buildings have 200-300 or more apartments -- there needs to be a lot of tenants to fill them all."
• "Rental prices will decrease which then affects the investment return for the investor.  Even now, with only a limited number of these developments being finished, the rental prices are down from what the investor was promised.  I believe there is more pain to come."
• "There are fewer buyers in the market."
• "I am really concerned as to what the next 3 years has in store."
• "I have no doubt that selling in the next 6 months is going to achieve a better result than waiting until next year."

Tessa Residential CBD Market Overview

• "We anticipate a stable and consistent market place in 2016..."
• Oversupply "is a reality throughout suburbs such as Newstead, Bowen Hills, South Brisbane and West End and as a result is having an impact on the rental market with rents across the City starting to soften."
• "We believe 2016 will represent the optimum time for sellers who are considering cashing in on the improved market, which has continued to grow since June 2013."

So sell now if you are thinking of selling in the next 3 years, but don't buy now -- wait till next year!

Ray White Agent's View of Brisbane apartment market

From an email from a Brisbane Ray White agent:

"The concerns for property owners for the next 12-18 months is that with around 23,000 new apartments under construction around the CBD & fringe, is that it will have a volcano effect and force property prices and rent down due to the over supply. 

We are seeing this happen at the moment in Surfers Paradise with 9/10 owners are losing money on their property. Sydney and Melbourne have already seen this happen. We are recommending it's crucial to have a think what your property plans are for the next few years. 

If you are having any thoughts of selling, don't hesitate to get in touch before it's too late. This new stock coming to the Brisbane market is not far away. 

Good news is! The market is strong at the moment."

Rent Without An Agent

If you engage a real estate agent to look after your property rental, the costs can be rather high compared with the service actually received.  Typically, the cost is a weeks rent to find a tenant, plus GST, and then 8.8% to collect the rent and do the ongoing management.  On rent of $550 a week, assuming that you have a tenant change once a year, the cost is over $3,000 a year.

If you live near your rental property, and don't mind learning how to legally comply with rental laws (the RTA website has good information), then Rent My Estate is a good service for landlords.  It helps manage the realestate.com.au advertising process, and is expanding into other programs for landlords (such as recording rents received).  Readers of this blog will receive a $20 discount via this link shared by a reader - thanks John.  The savings year on year could be substantial, if you are prepared to put in the time yourself to do things properly.  There is also a good blog on that site.

Lawsuit over carpark

A long running lawsuit about a car parking space reached conclusion recently, with a decision from the Queensland Court of Appeals.
See Hadgelias Holdings and Waight v Seirlis & Ors [2014] QCA 177
A person purchased an expensive apartment, and was told that there were 3 car parks, but in fact, there were only 2 carparks plus a storage space.  Damages were awarded in favour of the purchaser.

An interesting calculation quoted in the judgment, where it was stated that the value of the apartment at the time was falling at a rate of $45,000 month, independent of the car park issue:

"Using apartment 4404 as a basis for valuing the Seirlis apartment in April 2010, he deducted the following amounts from its January 2010 sale price of $2.65 million: $135,000, to represent the three months which had elapsed to April 2010; $50,000 for its superior fit-out; $60,000 for its additional two floors in height; and $100,000 as the estimated value of the third car space. That brought him to a figure of $2.305 million for the value of Mrs Seirlis’ apartment. From the sale price of apartment 4804 in October 2009, $2.9 million, he deducted $270,000 to represent the passage of six months, $180,000 to reflect the six floor difference, $50,000 for its superior fit out and $50,000 for the value of its storage facility. That gave a value for Mrs Seirlis’ apartment of $2.35 million as at the date of
contract."

Lazy Agents

I always find it surprising that some agents work really hard, and others just fumble around.  I have been in the market to buy recently, and it is amazing how many agents just don't return calls or emails, and don't follow up.  I feel sorry for their sellers.

Time to Buy or Sell in Brisbane?

A Brisbane real estate agent, Brad Munro from Position Property, has released a newsletter that states that the Brisbane market is booming.  He specialises in inner ring apartments.  He states "From 6th January of this year, we have seen the market explode!"  Brad then goes on to say that 5000 new apartments located within a 5km radius of the Brisbane CBD are expected to be completed in the next two years, and so there may be an oversupply of apartments, and more sellers than buyers.  Then, he concludes:  "Overall, the long term outlook for the property market in Brisbane looks good, however if you were looking at selling your property over the next 2 or 3 years, the next 3 to 4 months is, in my opinion, the best time to be doing this.  The less competition (other properties for sale) you have, the better the sale price will be, without question."

What this means to me is that now is not a good time to be buying, but wait a little while, and you may do better.

Or another view is that agents always tell property owners that now is the time to sell.

Bees Nees - A real estate agent's view of the Brisbane property market

"After a number of years of buyers being firmly in control, here's two telltales for us that we have a market on a new, more balanced playing field:

Buyers are calling us back. We know we're real estate salespeople and shouldn't be surprised when some people don't want to talk to us! But it's been a little lonely in recent years... Now the calls are returned, buyers keen to hear what 'freshies' we might have coming up for them.

The second reason? In the past fortnight I've had 3 real estate agents contact me chasing investments for themselves. Like a Charleville grazier can smell the coming rains, these agents get a sense when the market's on the turn.

It's not all one-sided. Despite the competition we've still seen some price sensitivity from buyers. They're well-informed and most are not yet rushed to pay over the odds. They recognise there's a shortage of listings across many inner city markets and prices, but many are still okay to bide their time. There's more balance but it's too early to say it's a sellers market.

With that said, if you've been holding off selling I haven't seen a market as good as this since 2004.  Many are hoping it will continue 'gaining momentum' and those 'green shoots' will sprout into price growth to make Jack’s beanstalk look tiny."

From Bees Nees.

It seems that houses are selling much faster than apartments in Brisbane at present.

Selling Your Apartment

When reading a recent story in The Times (from London) titled "How to avoid house-sale hell", about a lady who went through a series of real estate agents, and taking 18 months to sell her London house in a rising market, it reminded me of many stories I have heard about bad real estate agents in Brisbane.

Some common complaints about Brisbane agents:

• Not returning phone calls and emails.  (This always amazes me.  As as cash buyer, I often have trouble having agents return my emails when I am wanting to buy an apartment that they have listed for sale.)
• Pushing expensive advertising packages on the seller.
• Pushing auction sales on the seller.  For most properties, an auction is the less desirable way for the seller to sell a property, often leading to higher sales costs and a lower sales price.
• Using a "front man" who sells the agency's services, but who is never seen again.  Young inexperienced sales agents then do the open house and deal with the buyers and sellers.
• Having an agent give a misleading impression as to how long it will take to sell the property.
• Listing the property at too high a price.
• Conditioning the seller, with unreasonably low (and sometimes fake) initial offers.

Many sellers are often surprised at how few people come to inspect, and that those who do are often completely disinterested.

Are Auctions A Good Way to Sell Property?

From a recent RP Data submission to the Queensland Government:

We conducted some analysis of auction sales in each of these two States for the period 1 October 2012 to 30 September 2013 in order to ascertain whether or not there were any material differences in terms of outcomes between the states. For each of the auction sales in the respective states during that period, we compared the sale price with RP Data’s estimate of the subject property’s market value at the sale date, derived from our automated valuation model (“AVM ”) and utilising only those AVM estimates we deemed reliable. The percentages in the table below demonstrate, by relevant price band, the extent to which the sales price exceeds our estimate of market value. For example, for all properties sold for less than $500,000 in Queensland during this period, only 14.9% of homes were sold for a price we consider to be higher than the estimated market value of the property at that time, with the remaining 85.1% of properties sold at or below our estimated market value.

Rent My Estate

For landlords who do not like real estate agents, a new service -- Rent My Estate -- allows landlords to list on real-estate.com.au.  It provides a good interface for landlords to create and manage online advertisements.

Where the rent is about $650 a week, an agent will typically charge more than $4,000 a year for property management services.  Most agents, in my opinion, do a poor job on the rental side.  So if you have the time and skills, and live near your rental property, you can save a substantial amount and get a better result using Rent My Estate.

Rental Returns

I have conducted a review across about 20 apartment rental properties in Brisbane and S.E. Queensland, comparing the 12/13 FY with the previous financial year.  The analysis is done before depreciation and tax is taken into account.  Some of my conclusions, from this limited review:

• rent increases in the past year have been minimal, and I suspect below inflation
• vacancy periods between tenants have increased slightly
• body corporate fees have increased dramatically, and well more than rents and inflation
• council charges and water rates are slightly higher
• long term rental properties do much better than vacation or short term rental properties
• net returns, before interest, have decreased compared to the previous financial year (mostly due to body corporate increases being more than rent increases)
• fees and charges from rental agents are high, especially when considering the work done and value received -- self managed properties do better than agent managed properties for this reason,  even if the rent received is slightly below market rent
• if interest rates had not decreased, then the overall picture would not have been rosy.  
• because of decreases in interest rates, the overall cash position (not taking into account depreciation and tax) improved in the 12/13 FY compared with the previous financial year.

Bad real estate agents

I heard another story about real estate agents ripping off a client.  It is worth considering this story, especially if you are thinking of selling, as it is not uncommon.  The agent, who is well regarded, advised the seller of a potential sales price, lets say $900,000.  The agent then sold an advertising and promotional package to the seller, at a cost of more than $20,000.  The agent recommended an auction.  The highest bid at the auction was about $700,000.  The agent then bullied the seller to sell at that price.  The seller refused, and the property did not sell.  It is still on the market.  The agent over-estimated the sales price to get the listing, and made a good profit from the advertising package.  The seller is unhappy, as she would never have tried to sell the property if it was only worth $700,000.

Take care when an agent recommends an auction and an expensive advertising package.

Ask the agent to provide you with a CMA (Competitive Market Analysis) to justify the agent's view of the selling price, and get that in writing.  Study it careful.  And take care!

Recent quote from Warren Buffett:  "It is a lot easier to buy than to sell."

Real Estate Rort

The Courier Mail recently had a story regarding a real estate rort that is said to be ruining the lives of thousands.  An extract:

"Using cold calls, home visits and high-pressure seminars, marketing agents ramp up fear of an impoverished retirement to push gullible mum and dad investors into buying investment real estate.

They promise a low weekly cost to negatively gear properties, high rents and the certainty of strong capital growth in suburbs well outside of the Brisbane CBD.

But many of the units and townhouses' capital growth has been largely absent, with most buyers only learning the sad truth if they go to list the property for re-sale.

Investors have also found their weekly costs are higher than expected, putting pressure on household budgets. Rents are often far less than predicted and supposed waiting lists of tenants never materialise...."

Two bed sale in Charlotte Towers - a record!?

A real estate agent is promoting a recent sale in Charlotte Towers:

"RECORD SALE OF THE YEAR! Being the only two bed, two bath apartment available in Charlotte Towers. This one went fast! Selling in less than a week, the high demand and professional approach allowed for another Record sale of $530,500 in this ever popular building.."  See here.

I guess it is only 8 weeks into the year, so it is probably not hard to get a records sale for the year in that period.

Agents Touching Up For Sale Photos

An article in a Fairfax publication about agents editing and manipulating photographs in real estate listings.  See Article.  So take care when looking at listings online.  The property may not look as good in real life.  Maybe such agents should be called Unreal Estate Agents?

Resiprofile - matching buyers and sellers

Here is an interesting website, that aims to cut out the middleman (e.g. real estate agents):  See Resiprofile.  I have many examples of real estate agents not returning my calls or emails when I want to buy.  So I move on.  I wonder if the seller knows how hopeless their real estate agent may be.  It is always good to do a "mystery shopper" experiment on your real estate agent.

Agents to Vendors: Get Real

An article in the Weekend AFR:  Agents tell vendors to get real.

"Because prices haven't improved, only about 20% of sales are actually achieving what the vendor wants.  ... a lot of homeowners are still discounting to sell."  Click on image below to get full size story.

Unrealistic List Prices and Lowball Offers

A nice article:  "Lowball offers for property not uncommon in current soft market and hard for vendors to swallow".  I am often surprised by the list price for an apartment.  For example, I have seen some apartments recently where the list price is $100,000 more than the sales price of a similar apartment a few floors away that recently.

Extract:

"Many vendors (irrespective of the value of the home) can be fixated on achieving a particular price for one reason or another. Owners of premium properties are no different and can sometimes be stuck on an unrealistic price. Quite often when sales agents call to inform me of silent listings, the first thing I ask is how the price has been determined. Very often they openly admit that it has been hard to set the price and ultimately it has been dictated by the vendors. In these instances, it can take time to condition the vendors to accept a significantly lower price than they originally hoped for."