In addition to the sale, purchase and transfer of land, property law covers various other matters such as subdivision and development, leasing of retail and commercial premises, advice on strata issues and the resolution of disputes over ownership interests, fencing, access and encroachments.
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 a seemingly minor oversight can result in major legal issues for a buyer or seller.
When purchasing residential property, buyers need to know exactly what they are buying and must obtain clear title on completion. Due diligence involves a series of investigations to ensure that registered encumbrances are noted and removed by settlement, that the property can be used for its intended purpose, the implications of easements or other restrictions are understood, and that structures have been built with approval and comply with local planning regulations.
Purchasing a unit in a strata development requires additional considerations – the owner of a unit in a strata scheme holds title to the individual lot as well as a shared interest in the common property (i.e. stairways, lifts and gardens). This results in the shared responsibility for upkeep of the common property and additional financial obligations which should be noted in an owners’ corporation certificate. By-laws, regulating matters such as the carrying out of renovations, noise, parking and the keeping of animals should also be carefully considered.
In Victoria, vendors must provide a section 32 statement to a purchaser before a contract is signed. The section 32 statement provides vendor disclosures and prescribed information about the property including:
- details of any registered and unregistered mortgages, charges, covenants or easements affecting the land;
- rates and charges applicable to the property;
- the availability of services;
- zoning and planning information;
- details of any orders or notices (i.e. Heritage nominations and contamination notices) or Government proposals affecting the land;
- details of building permits issued in the past seven years with particulars of home owner warranty insurance;
- declarations such as whether the property is in a bushfire-prone area.
Commercial and retail leasing
A commercial lease governs the relationship between a landlord (lessor) and tenant (lessee) with respect to a lessee’s right to occupy the lessor’s premises. 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). The terms should be appropriately balanced between the parties.
Retail leases are commercial leases that are regulated by specific legislation – a retail lease 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 deemed unreasonable for a lessee. The legislation also imposes specific disclosure obligations upon a lessor.
Commercial leases are frequently the subject of legal disputes which can occur when the parties are unsure of their obligations, or the lease agreement is poorly drafted, ambiguous or non-existent. Obtaining appropriate legal advice when entering a lease can help minimise costly and inconvenient disputes.
Lodging a caveat
Occasionally, an individual or company may wish to protect certain legal interests in land that are not formally recognised. A caveat is a statutory injunction preventing the registration of a dealing over property without first notifying the person who lodges the caveat (the caveator).
Only ‘legal’ interests in land are caveatable and the wrongful lodgement of a caveat can leave a person or company liable for any loss suffered by the landowner including the legal costs to have the caveat removed.
Property disputes can be complex and may concern a range of issues. Disputes between co-owners are often triggered by changing circumstances – a relationship or business breakdown, financial stress or the death of a co-owner. Co-owners may claim that interests held are disproportionate to the respective contributions made or disagree on the use, development or proposed sale of a property. To effectively deal with these matters requires an intricate understanding of property law as well as knowledge of other areas of law such as family law, trusts and succession law.
Disputes between neighbours generally involve encroachment and / or fencing issues which should be carefully managed and negotiated to achieve a resolution that is fair and workable.
Property law is complex and attempting to navigate a conveyancing transaction or dispute without legal advice can be costly and exhausting. It is always advisable to obtain the guidance of an experienced property lawyer.