Property Law

Property law captures a wide range of transactions and related matters such as the transfer and creation of legal and equitable interests in land (sales, purchases, mortgages, caveats and easements), commercial and retail leasing, land subdivisions and development and strata titling.

Property law is one of our key practice areas and we have been providing sound practical legal advice, guidance and assistance for many years to a range of clients (individual and corporate) whether purchasing a first home, investing in real estate or undertaking a small to significant development project.

What is conveyancing?

Conveyancing is the legal process of transferring legal title in real estate from one party to another, whether it be residential (metropolitan and rural), industrial or commercial property including a house, duplex, villa, townhouse, vacant land or strata unit / flat / apartment. A conveyancing transaction is often one of the largest and significant financial transactions a person will make, yet the legal process typically moves very quickly providing no room for error.

Signing a contract to buy or sell property creates binding obligations between the parties – the penalties for default on a contract can be significant so it is important to understand the legal obligations and implications before entering into such arrangements. This involves conducting due diligence before purchasing, preparing a compliant contract before selling and being aware of your legal obligations as a seller and as a buyer, and understanding the terms and conditions of the contract generally and the process.

Assisting purchasers / buyers

When purchasing residential property, buyers should know exactly what they are purchasing and must receive good clear title to the property. Due diligence involves a series of investigations to ensure that the property is used for its intended purpose, there are no adverse affectations, the implications of any easements or other restrictions are known and understood, and that all structures have been built with local council approval and comply with local planning regulations.

Assisting vendors / sellers

Before offering residential property for sale, a written contract must be prepared. The contract must contain the terms and conditions, certain disclosure documents such as a title search, plan of the land, drainage diagram, local council planning or zoning certificate, land tax certificate. Vendors must warrant that there are no adverse affectations concerning the land, unless disclosed in the contract, and that all structures comply with building and zoning regulations.

Getting a mortgage

Most people will rely on a loan and borrow from a bank or building society to help finance the purchase of a property.

A mortgage is essentially a ‘statutory charge’ in favour of a lender over property owned or held in the borrower’s name. The mortgage secures the repayment of the money loaned or borrowed and is registered on the title to the property. The loan contract gives the lender the right to sell the property in the event of a default by the borrower.

Commercial and retail leasing

A commercial lease governs the relationship between a landlord (lessor) and tenant (lessee) regarding the lessee’s right to occupy and use premises (such as office space, shop front, café, restaurant) owned by the lessor. Commercial leases can be the subject of protracted negotiations and legal disputes which often occur due to inadequate communication, poorly drafted, ambiguous or non-existent lease agreements, or the failure of a party to understand the terms. Legal guidance and direction when entering a leasing arrangement will assist in minimising protracted negotiations and legal disputes.

Easements

An easement is a right to use land belonging to someone else in a certain way. The easement may be a private easement, where a strip of land give neighboring landowners access (such as pathways for example driveways or foot paths) to their property, or a public easement, where strips of land is required for the maintenance of sewerage or electricity services or gas services.

Upon purchase of a strata unit, the owner automatically becomes a member of the owners’ corporation which is responsible for managing the strata scheme. This includes arranging building insurance, repairs and maintenance to common property, keeping records (such as accounting and occurrence), and appointing managing agents or building managers.

Strata Title Property

Strata title property comprise of land in a development which is divided into lots and common property. Legal title to a lot (unit), defined by the cubic airspace and interior surfaces of the walls, ceilings and floor, is held and owned outright by an owner who also holds an interest with other lot owners in common property such as hallways, stairways, lifts, gardens and swimming pools.

Subdivisions

A subdivision involves the partition of usually sizeable land into smaller parcels, ranging from the division of a single lot into two, to the creation of numerous lots in a large residential or strata development. Once subdivided, a title is created for each new portion of land which can be separately sold and transferred.

Land subdivision is governed by legislations, regulations, planning schemes and policies administered by local councils and other government bodies. Subdivision developments are complex, and it is important to understand the overlap of the relevant laws, and the processes required to achieve the proposed objectives and minimise costly mistakes.

Working with building professionals and an experienced property lawyer to check off due diligence matters, liaise with relevant authorities, and to prepare and explain titling and legal concepts is invaluable throughout this process.

Option Agreements

An option deed is an agreement negotiated between landowners and property developers to buy / sell a certain property within a specified time and on agreed terms and conditions. These agreements can include a range of terms and conditions to accommodate the parties’ respective circumstances.

Buying under an option agreement may enable a developer to secure a price for land for future development and sale while a purchaser’s finance is organised and due diligence commenced, before committing to the purchase and once purchased enable an extension in stamp duty payment because of typically lengthy settlement period An option arrangement provides a landowner control over the timing of the sale, provides a developer time to construct the buildings and provides a purchaser time to finalise finance and carry out due diligence.

Legal matters concerning property can be complex and require knowledge and understanding of the process and procedures, rules and regulations affecting ownership rights, developments, subdivisions and many other issues concerning what is often, our most valuable monetary asset.

Our team has significant expertise across all aspects of property law having represented vendors (including property developers) and purchasers on the conveyance of residential, commercial and industrial properties, ranging from small scale to large complex, multi-use developments.

If you need any assistance contact one of our lawyers at [email protected] or call 02 8249 1996 for a no-obligation general discussion and once retained for expert legal advice.