In addition to the sale and purchase of land, property law covers many other matters such as subdivision and development, leasing of retail, commercial and industrial premises, and the resolution of disagreements over ownership interests, access, encroachments and strata matters.
Conveyancing is the process of transferring a legal interest in property from one person or entity to another. Although several steps are involved, the conveyancing process generally moves quickly and what may seem like a simple oversight could result in significant consequences for a buyer or seller.
When purchasing residential property, buyers should know exactly what they are purchasing and must receive clear title to the property. Due diligence involves a series of investigations to ensure that the property may be used for its intended purpose, there are no adverse affectations, the implications of any easements or other restrictions registered on the property are understood, and that any structures have been built with approval and comply with local planning regulations.
A purchaser who fails to complete a contract after exchange risks significant penalties including loss of 10% of the property’s purchase price. Ensuring that finance has been approved, due diligence is carried out and the obligations under the contract can be met is essential to protect a buyer’s interests.
Before offering residential property for sale, a written contract must be prepared in accordance with the relevant jurisdiction’s legislation. The contract must contain certain disclosure documents such as a title search, plan of the land, drainage diagram and local council planning certificate.
Vendors must provide certain warranties including that there are no adverse affectations concerning the land, and that any structures comply with relevant building and zoning regulations. Failure to provide the correct disclosure and warranties in a contract may allow a buyer to rescind (cancel) the purchase.
Every rural property is unique – whether a large acreage with a farming enterprise, a hobby farm or an expanse of untapped potential.
The contract for sale and purchase of rural land may include several ‘parcels’ making up the entire property. Details of each title are contained in the contract showing the relevant lots and plans which should be clearly identifiable.
Our property team will ensure the correct titles and plans are included in the contract and will explain the impact of any easements and other interests in the land.
Water is crucial to a farming enterprise and the transaction will need to include details of water licences, access, irrigation rights and pump approvals. Water rights usually form part of the sale but are held separately to the title of the land and are transferred through the relevant Government authorities.
If the sale incorporates a farming enterprise, then the business aspects of the transaction must be considered. In addition to the dwelling and fixtures, the contract may include livestock, crops, plant and equipment. Details will need to be included in an inventory, with the contract setting out the process for transferring these items.
The sale of a going concern may involve the transfer of incidental agreements such as equipment leases, service and supply agreements. Consideration to transferring employees may also be necessary.
We encourage clients involved in rural business transactions to allow us to work with their financial advisor so that price apportionment, stamp duty and tax issues can be addressed. The transaction should be structured to provide the best possible financial outcome.
Home Units and Strata Properties
Purchasing a unit requires additional considerations. Owning a strata title property means that you will hold title to an individual lot as well as sharing the use and responsibility for common areas such as stairways, lifts and gardens.
After completion, a strata lot owner becomes a member of the owners’ corporation which is responsible for managing the strata scheme. This encompasses matters such as financial management, arranging insurance and repairs and maintenance to common property. Additional ongoing financial obligations must be factored into the purchase – these may be significant, particularly where repairs and maintenance to common property are required.
Strata properties also have by-laws which regulate matters such as carrying out renovations, noise, parking and the keeping of animals. These matters should be fully investigated before purchasing.
A retirement village is typically a community-style development offering accommodation options to retirees, generally aged over 55 years. There are many different types, and the legal arrangements vary considerably. Some arrangements provide for outright ownership whereas others are loan-licence or leasing arrangements.
Retirement village operators must provide prospective residents with a disclosure statement before entering into a contract. The contract governs the rights and responsibilities of the resident and retirement village, and sets out details of occupancy rights, use of common facilities, the services included which may be assisted living or aged care, the fee structure including ongoing contributions for management and maintenance, and relevant exit fees.
Commercial and retail leasing
A commercial lease governs the relationship between a landlord (lessor) and tenant (lessee) regarding the lessee’s right to occupy premises owned by the lessor. Commercial leases are frequently the subject of legal disputes which often occur due to poorly drafted, ambiguous or non-existent lease agreements, and / or the failure of a party to understand the terms of the lease.
A leasing arrangement is a valuable commodity for both the lessor (whose investment in the commercial premises must be adequately protected) and the lessee (who relies on reasonable terms and security of location to operate a business). Ironically however, the importance of scrutinising lease terms to ensure they balance the rights and responsibilities of both parties is often overlooked.
Retail leases are commercial leases regulated by specific legislation which typically applies to premises within shopping centres or that are used wholly or predominantly for conducting a retail business. Retail leasing legislation aims to enhance consumer protection by stipulating minimum terms and conditions and limiting certain provisions that are deemed unreasonable for a lessee. The legislation also imposes certain disclosure obligations upon a lessor.
Lessors and lessees should obtain appropriate advice to ensure their negotiations are properly reflected in a lease agreement, and the provisions comply with any relevant legislation.