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."

Body Corporates in Queensland can't prevent AirBNB in their buildings

This recent decision confirms previous decisions that a bylaw in a Queensland strata titled scheme that prevents short term rentals, such as AirBNB, is invalid.  Not a great result for apartment residents.
See  Macleay Tower & Villas [2017] QBCCMCmr 12 (17 January 2017)
 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QBCCMCmr/2017/12.html

Brisbane Skyline Changes

This is a good article from the Brisbane Times:  Brisbane's Skyline to Be Transformed in 2022

It has interactive photos with sliders that show the likely changes.

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!

Valuer says Brisbane will get worse

Independent property valuers Herron Todd White say that the Brisbane apartment market is about to enter a decline.  It looks like values will go down.  We have not had a boom in Brisbane since 2007.  Who said property prices double every ten years?  If you bought in 2007, you may still be underwater!

The report says:
"Brisbane property has been a heartbreaker over the past few years, offering so much promise, but failing to live up to the hype – and anyone hoping 2017 would prove to be “The Year of the Brissie” will probably be disappointed again.

The hoodoo continues to be employment-fuelled interstate migration and, truth be told, we can’t see anything on the economic horizon to suggest southern buyers will start heading here in droves.

That’s not to say we should be ignored - on the contrary, Brisbane is one of the country’s most forgiving capital city markets. There are very few disappointed long-term buyers in our sunshine- state’s big city, provided they stuck with the fundamentals and bought the right property in the right position at the right price. With this historic performance as a foundation, there are opportunities to get into Brisbane and hold tight that will leave you feeling very satis ed with your decision come a market cycle or two.

Herron Todd White Brisbane has always been keen on well located second hand units as a strategy for those trying to get a foot on the market. They usually offer an affordable option in a great location, and while capital gains aren’t always mind blowing, good tenant demand ensures you can continue to service the mortgage without too much stress. There is, however, a very real oversupply risk looming for investor units in our city as new stock struggles to find demand. This is having a negative flow on to our traditionally solid second-hand unit market. If you buy investor-grade unit stock in particular – new or old – please tread with caution in 2017."

Student "Apartments"

There is a social media advertising campaign underway for Atira Student Living in South Brisbane.  The rooms are extremely small:

• 16 sqm for a studio
• 21 sqm for a twin studio
• 33 sqm for a 2 bedroom apartment
• 55 sqm for a 3 bedroom apartment.

A typical apartment bedroom (4m x 3m) is 12 sqm.  A typical hotel room is about 33 sqm.  A small two bedroom apartment in a low quality complex is about 75 sqm.   There are many two bedroom apartments in Brisbane that are 110 sqm and larger.  These Atria rooms are small.  And they are charging more than $460 per week for a studio.  (A furnished one bedroom that is 72 sqm in a good location is about $550.)

Students are best advised to look at regular apartments on realestate.com.au and compare against student apartments before renting.

Brisbane Still Going Backwards

According to RP Data CoreLogic, Brisbane apartments did badly in 2016.  See report here.

Brisbane apartment prices (to 31 January 2017):

January 2017 - down 0.1%

Quarter - up 0.2%

Year on Year - down 2.7% 
Median price based on settled sales of Brisbane apartments over the quarter - $380,000

The report says:

Mr Lawless cites the large number of high-rise units currently under construction as another factor that may slow overall housing market performance. He said, “Dwelling approvals have already peaked across the high rise sector, as have construction commencements. However, the unit supply pipeline remains at unprecedented levels with a large proportion of these high rise units located within the inner city regions.”
“As these units flow through to settlement, the risk of buyers receiving a finance shock is becoming heightened.”
”Metadata flowing across CoreLogic valuation platforms is showing more than 40% of off-the-plan settlement valuations are coming in under contract price across the Melbourne, Brisbane and Perth unit sectors. While the large majority of these ‘under valuations’ are not showing a significant gap between the contract price and settlement valuation, more significant differences can be seen in some projects and precincts. Buyers who receive a valuation lower than the original contract price will generally require a larger than expected deposit in order to meet the loan to valuation ratio required by the lender.” 

Solicitor Assaults Neighbour - Then Sells House

Last year, it was reported that controversial Brisbane solicitor, Robert Hynes, assaulted his neighbour, who happens to be a barrister.  The Hynes family house is now for sale.  The house, in 18 Ormond Street, in Ascot, Brisbane, is in Hynes' wife's name.  She purchased the house in 2009 for $2M.  Hynes Lawyers went through a restructure in 2013, and not everyone was happy.  Restructured and now Hynes Legal, this firm is well known for its aggressive body corporate and management rights practice.

The advertorial in the AFR and The Domain, without some of this detail, is below.

Brisbane City Apartment Sales

Recent sales in November and December 2016:

Parklands

Apt 3104 - 2 bed, 1 bath, 1 car - $590,000

Apt 3036 - 3 bed, 2 bath, 1 car - $650,000

Charlotte Towers

Apt 1207 - 2 bed, 2 bath, 1 car - $460,000

Apt 1502 - 2 bed, 2 bath, 1 car - $490,000

Apt 1704 - 1 bed, 1 bath, 0 car - $322,500

Apt 602 - 2 bed, 2 bath, 1 car - $510,000

Riparian

Apt 4301 - 3 bed, 3 bath, 2 car - $2,562,000

Admiralty Towers One

Apt 135 - 2 bed, 2 bath, 1 car - $615,000

Apt 21 - 2 bed, 2 bath, 1 car - $720,000

Admiralty Towers Two

Apt 29 - 3 bed, 2 bath, 2 car - $1,059,000

Meriton Infinity

Apt 2907 - 1 bed, 1 bath, 1 car - $420,000

Apt 5006 - 2 bed, 2 bath, 1 car - $600,000

Apt 5406 - 2 bed, 2 bath, 1 car - $580,000

Riverplace

Apt 109 - 1 bed, 1 bath, 1 car - $516,800

Festival Towers

Apt 2905 - 1 bed, 1 bath, 1 car - $390,000

Aurora

Apt 248 - 2 bed, 1 bath, 1 car - $400,000

Capital gains were best for direct riverfront buildings and worst for the large apartment towers built by Devine (Charlotte Towers and Festival Towers and Aurora).  The Devine developers now run Metro.

Recent Southbank Sales in Brisbane

Arbour on Grey
180 Grey St
3 bed, 2 bath, 2 car, 191 sqm, sold for $1,165,000
2 bed, 2 bath, 1 car, 106 sqm, sold for $740,000
174 Grey St
3 bed, 2 bath, 2 car, 186 sqm, sold for $1,487,500
3 bed? 128 sqm - sold for $820,000
172 Grey St
3 bed, 2 bath, 2 car, 155 sqm, sold for $1,010,000

Saville
161 Grey St
2 bed, 2 bath, 2 car, 119 sqm, sold for $920,000

Galleria
15 Tribune St
2 bed, 2 bath, 1 car, 120 sqm, sold for $570,000

Saville Southbank

Howard Smith Wharves

Under the Storey Bridge are some old wharves.  I remember in the late 1980s parking my car on the wharves in this area.  There are now plans to redevelop the land, to build a small hotel and exhibition area, plus restaurants and cafes.  See http://howardsmithwharves.com

If completed, this will add value to the nearby apartments, Riverplace, the Admiralty buildings, and others nearby.

Construction was supposed to have started at the end of last year.

Is it better to rent or buy?

Here is a comparison of two similar apartments in a Brisbane inner suburb, in the same complex, with each apartment being side by side.  These are good apartments, two bedrooms, two bathrooms, each 119 sqm total size, in a complex with a pool and gym.  Both were sold for similar prices.

Apartment A - owner occupant
Price - $465,000 plus stamp duty $7,500 approx.
Repairs and improvements before moving in - approx $8,000
Monthly costs
Loan repayment - $2,500 a month
Rates - $107 a month
Water - $98 a month
Body Corp - $375 a month
Insurance - $20 a month
Total - $3,100 a month

Apartment B - rental
Price -$450,000 plus stamp duty $14,100 approx.
Rent per month - $2,210 per month

Thus, the renter is $890 a month or $10,680 a year better off, and had no capital outlays, and does not have to pay for repairs and improvements (usually another $100 a month on average).  The renter can easily move to another location if work needs to take the renter there.

Another way to look at this is that the weekly rent should be $715 a week to cover all costs that are included in the rent.  But the rent is only $510 a week.  The landlord is subsiding the tenant to the tune of $200 a week.

Brisbane Apartments -- What happens next?

Most predictions for the Brisbane apartment market for 2017 are that prices will fall, and that there is going to be an oversupply or glut of apartments.  Well, maybe.

I think there may be a glut of certain kinds of apartments in certain areas.  For example, there are a large number of apartments under construction in Bowen Hills and Newstead.  Many of these apartments are small apartments in large buildings.  Some of the buildings are not in great locations or have poor aspects.  I am not sure who will want to live in these apartments.

But I don't think the news is all grim.  My reasons for saying this:

1.   In certain areas, there is no a glut of apartments.  Or even where a number of new buildings are under construction or have just been completed, the area has many facilities and a good location.  For example, South Brisbane, Indooroopilly and Toowong have new apartment buildings, but these are excellent areas, and can probably hold up to the new stock entering the market.

2.   Existing apartments that are 10 to 20 years only are good value.  Many are large apartments and are located in the better areas, and have good views.  Compared with newer apartments, which are smaller, the older apartments look very price competitive.

3.  There is a shortage of large apartments.  As baby boomers look to downsize, and wealthy families move from Asia to Brisbane, they are looking for apartments that are more than 120 sqm in size.  There are very few apartments in Brisbane that are spacious and luxurious.

4.  Compared with Sydney, or the freestanding house market in Brisbane, prices for apartments have been relatively flat for the past 2 to 4 years.

5.  Rents have decreased for some apartment types, but I think that rents will not keep decreasing.  I suspect that this time next year, we may start to see rent increases for certain apartments.

6.  Not all apartment buildings that have been announced or that are being sold off-the-plan will actually be built.  The potential oversupply is less than anticipated.  (That being said, there are a lot of apartments under construction, and there will be an oversupply.)

One example to consider.  Sunland is building Abian on the corner of Albert Street and Alice Street in Brisbane city.  The apartments were sold off the plan about 2 years ago (it has sold out) and settlement is likely to take place in June and July this year.  It has a great location, overlooking the Botanical Gardens, and will not be built out other than on the rear side.  It is on a corner block.  It is tall, but there are only about 150 apartments in the building.  Most are large.  The quality of the build and finishings are reported to be super.  There are resales available, and it is said that these kinds of prices are being achieved:

• Two bedroom, 69 sqm - from $680,000
• Two bedroom, 103 sqm internal- from $1,150,000
• Two bedroom and study, about 135 sqm internal - from $1,175,000
• Three bedroom and study, 150 sqm internal - from $1,700,000
• Three bedroom and media room, 200 sqm internal - from $2,700,000

This does not suggest to me that there is oversupply of this kind of apartment in this location.  (Or do these high prices tell us that a crash is coming?)

On Wednesday, the AFR had an article that said:  "... This year, that courage may well pay off for investors in established apartments.  In Melbourne, Brisbane and Adelaide, owners of these older style 1930s to 1970s built apartments saw little or no return last year and would have enviously watched houses perform substantially better.  This divergence in performance has been due to an oversupply of new units suppressing the entire apartment sector.  But with a slew of recent ABS data showing the apartment building boom is fading, we may well see the first signs of a recovery in older style unit prices and a vindication for remaining faithful to these assets in hard times."

Is now the time to buy established Brisbane apartments?

Admiralty Towers One Sales

Some recent sales from Admiralty Towers One, which is located at 35 Howard Street in Brisbane.  This is a direct riverfront building, although not all apartments have river views.  Some apartments have spectatular views.  The apartments are larger than most apartments being built today, with some one bedrooms about 70 sqm and some 2 bedrooms more than 130 sqm.

Apt 21 - 2 bed, 2 bath, 1 car - $720,000

Apt 56  - 2 bed, 2 bath, 1 car - $710,000

A[t 49 -  2 bed, 2 bath, 1 car - $692,000

Apt 135 - 2 bed, 2 bath, 1 car - $615,000

Apt 121 - 2 bed, 2 bath, 1 car - $575,000

Apt 88  - 1 bed, 1 bath, 1 car - $415,000

Short term letting and Airbnb

It appears that in Queensland, it is difficult, if not impossible, to prevent lot owners in a strata titled building from renting their apartments via short term rental services such as Airbnb.

A recent decision of Lynkim Lodge [2016] QBCCMCmr 419 (14 September 2016) supports this.  See decision here.

However, most residential buildings prohibit the use of lots for commercial or business purposes.  When does renting an apartment on Airbnb stop being a residential purpose and become a commercial purpose?

In NSW, there is an action group trying to protect residents of apartment buildings from the dangers of short term rentals.  See NeighboursNotStrangers.  See also here.  They report that apartments in buildings with high short term rentals will drop in value and that there are higher body corporate costs.

Big Discounts to Lure Chinese

On page 3 of the Australian Financial Review on 15 December 2016 is a story titled "Big discounts to lure Chinese unit buyers."  It says that property developers are discretely offering discounts on new apartments in Brisbane and elsewhere to Chinese buyers, in a sign that lending restrictions and oversupply are beginning to affect prices.

Price discounts of up to 7% are being offered on Chinese property website fang.com.

An example is given of discounts on apartments in the Brisbane One complex near South Bank.  For a two bedroom apartment of 86 sqm, there is a $40,000 discount, so that the price is now $675,000.  To me, that discounted price seems to be over-priced!

"The market has slowed down a lot over the past six months and recently the only deals that are moving are those with big incentives."

A real estate agent reported that a number of his clients in Shanghai had been unable to obtain finance and therefore could not settle, and so lost their deposit.

Air Space and Common Property

A recent High Court decision supports a decision by a body corporate that did not allow an owner of an apartment in Noosa to join two balconies.  Doing so would appropriate air space which is common property.  The law in Queensland requires such an appropriation of common property to be approved by a vote of all owners without dissent.  If the body corporate in a vote denies that approval, and such a decision is unreasonable, then it can be overturned.  Here, the High Court said it was not unreasonable to deny an application by an owner to appropriate common property air space.

See High Court decision and this good article.

In contrast, see this recent decision where a body corporate's denial was found to be unreasonable.

Brisbane Rental Yields

The resale market for apartments in Brisbane at present is slow.  There are bargains if you are buying, and it is taking a long time to sell if you are a seller, and often the seller is disappointed with the sales price. 

At present, for apartments in Brisbane that are being sold resale (that is, not by the developer off the plan), the sales prices are decreasing.  Rents are also decreasing, as there is an oversupply.  This is a generalisation, and does not apply to all apartment types or all areas.

I have recently studied the Indooroopilly area.  The gross rental yields are good.  For reasonable quality 2 bedroom apartments, prices have dropped about 10 to 15%.  So apartment that were selling for $485K to $530K last year are now selling in the range of $425K to $500K, with most sales being about $450K to $465K.  Some vendors are selling for more than $100,000 less than what they paid.  The rents for these apartments have dropped from a range of $520 to $560 a week to $480 to $510 a week.  New developments with smaller but modern apartments are doing promotions such as 4 weeks free rent.  On an apartment that I own in Indooroopilly, I am getting a gross yield of 5.7% , where the lease was signed last week.  

Small city apartments are struggling, esp those that are rented in short term rental pools.  I have seen one apartment building in an Accor rental pool where net returns (after rates and body corporates etc) on large one bedroom furnished apartments have dropped from $13,000 a year to less than $5,000 a year. 

Declining Apartment Market in Brisbane

The September HTW Month-in-Review report suggests that for Brisbane, it is time to selling apartments and buy houses.  I have noticed that prices for apartments being resold are soft.  An above average apartment that was sold off the plan in 2007 for $550,000 is lucky to sell today for $470,000.

See attached from HTW (click on image to enlarge)

Brisbane Apartment Prices Up Slightly: RP Data CoreLogic report for May 2016

Brisbane apartment prices (to 31 May 2016):

May 2016 - up 1.3%

Quarter - up 0.8%

Year to Date - up 2.3%
Year on Year - up 2.4%  (Sydney is up 15%, Melbourne up 8%)
Median price based on settled sales of Brisbane apartments over the quarter - $385,000

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!

Brisbane apartment oversupply?

Will there be an oversupply of apartments in Brisbane?  In certain geographic areas, and for certain styles of apartments, I think that the answer will be yes.  Some clear reasons for oversupply include:

• extremely high level of construction of high rise apartments in some areas, many with a large number of small apartments
• low population growth
• apartments targeted at investors, not owner occupiers, so a more limited market segment of buyers and renters
• apartments being constructed in second and third tier areas.

However, I don't think that all the apartments currently "in progress" will actually be built.  This includes apartment projects that have good pre-sales and where "construction has started".  This is because:

• some developers are unable to obtain the level of finance needed to commence the project
• construction costs have increased dramatically, especially for union built projects, and so the project is no longer viable, even if the project is sold out
• simply because the site has been cleared, and some work has started, does not mean the that project is underway -- it may never be built.
• the number and percentage of presales in a development is often overstated by the developer in advertising and market surveys, and so the developer will not in fact be able to obtain finance at all.

So I think that the level of oversupply may be overstated.  There will still be oversupply, just not as bad as some people are predicting.

There are other risks in the high-rise apartment market:

• off-the-plan buyers may have trouble settling, because valuations may be lower than contract price, because banks are not lending to offshore buyers, and because banks are requiring a higher cash contribution.
• rents are likely to fall, which means that valuations will fall
• some projects are overpriced, and it is likely that after settlement sales prices will be less than  the contract price
• some constructions companies are in financial difficulties, and so are cutting corners -- the end product many be different, and lower quality, to what is expected by the buyer
• many buildings are being built close to other buildings, impacting light, view and ventilation
• foreign buyers may evaporate.

The question in my mind is whether this will impact the high quality buildings in good locations that have large apartments with good aspect?

HTW view on Brisbane apartment market

There has been a lot of talk about our inner city unit market with an oversupply situation that’s graduated from 'looming' to 'inevitable'. This sector is a huge concern. There are still heaps of projects that are yet to come online or are in the planning phase. They are also predominantly investor driven and this could be a recipe for a lot of heartache – particularly as a large percentage of buyers are interstate and international investors. Add to this the tighter restrictions on lending to foreign investors and you can see where it might all be heading. As we’ve been saying for some time – in terms of inner city units, the best per formers are, and will continue to be, those projects designed with owner-occupiers in mind.

If you’re wondering how tenant demand is tracking, we can con rm current data shows vacancy rates for houses at 2.5% and units at 3.2% (unit vacancy increased by 0.3% year-on-year). The combined  vacancy rate for all property types is 2.7%. The general rule is any result below 2% demonstrates an under supply of rentals, 2% to 3% seems balance, and over 3% represents oversupply. From the numbers above, it’s easy to recognise where the weak sector is in the market.

See June Month in Review