Property Law

Property law concerns the rules governing the rights of ownership and interests in real estate and personal property. In addition to the transfer of land, property law encompasses land development and subdivision, the creation of strata schemes, retirement village leases, residential tenancies and occasionally, disputes regarding ownership, boundaries or access.

Ownership interests in property

The way in which a legal interest is held in property is an important consideration.

A joint tenancy is subject to survivorship provisions – when one joint owner dies, the other automatically inherits the deceased person’s share which cannot be left to anybody else, even by contrary terms in a Will. While joint tenancies are generally appropriate for domestic partners, this may not always be the case.

Property held as tenants in common can specify the individual shares held by each owner (for example 50/50 or 30/70). In such cases a co-owner can transfer, sell or leave his or her share to a beneficiary.

It is important to obtain legal advice regarding property co-ownership to prevent unintended outcomes in estate planning and protect interests should future disputes arise triggered by matters such as financial stress or breakdowns in personal or business relationships.

Property development and subdivisions

Subdivision involves the partition of a parcel of land into smaller lots. Once land is subdivided, a ‘title’ is created for each portion which can be separately sold and transferred. A typical subdivision may include the partition of a single lot into two, the creation of several lots in a new estate, or the development of a large strata complex.

A proposed subdivision must comply with local planning laws and be consistent with regional and state planning objectives and policies. Developments must address environmental and other matters such as access to new lots, the provision of open space or other facilities, and the capacity for existing services and infrastructure to support the proposed project.

Subdivisions involve complex technical and legal processes, and plans may need to be reworked a number of times before approval is granted and the project can begin. A property lawyer can assist by investigating zoning and planning schemes, carrying out due diligence and protecting the interests of the developer or landowner, working with building professionals and negotiating with state authorities.

Easements

An easement is a right to use property belonging to someone else in a certain way. The easement may be a private easement, such as a strip of land giving neighbouring landowners access to their property, or a public easement, like an easement for the maintenance of sewerage or electricity services. Easements can affect the value, use and future development of land and should be fully investigated during a property transaction.

Encroachments

An encroachment occurs when a building or fixture from a property intrudes onto adjoining land. While a few hanging tree branches may be easy to fix, significant encroachments like structures that have been incorrectly built over a boundary can affect the use, enjoyment and value of a person’s property. These issues can result in disputes between landowners which can be negotiated and resolved with the assistance of a property lawyer.

Community Title Property

Community title property comprises land in a development divided into lots and common property. Legal title to an individual unit is held outright by an owner who also holds an interest with other lot owners in common property such as stairways, lifts, gardens and swimming pools.

After purchasing a community title unit, the owner automatically becomes a member of the owners’ corporation which is responsible for managing the strata scheme.

The functions of community title management include arranging insurances, repairs and maintenance for the common areas, maintaining financial and other records, and appointing managing agents or building managers.

Bodies corporate may enter into various legal and service agreements and must make decisions within the scope of the governing laws and regulations. They may also need to bring or defend legal action and in such cases, should obtain legal advice.

When purchasing a community title property, buyers should be aware of the relevant levies and potential ongoing financial obligations which may be significant, particularly where repairs and maintenance to common property are required. Community title properties also have by-laws which regulate matters such as carrying out renovations, noise, parking and the keeping of animals.

Commercial and retail leasing

A commercial lease governs the relationship between a landlord and tenant regarding the lessee’s right to occupy the landlord’s premises.

In Queensland, retail leases are governed by the Retail Shop Leases Act 1994 (Qld) which sets out minimum terms for lease agreements, disclosure obligations and generally promotes transparency and fairness in the retail leasing industry. Typically, and subject to certain exclusions, the Act applies to premises located in a retail shopping centre and / or that are used wholly or predominantly for conducting a retail business. Failure of a lessor to provide the relevant disclosure material which sets out important information for the lessee, may be grounds for the lessee to terminate a lease.

Commercial lease disputes usually occur because of poorly drafted, ambiguous, or non-existent lease agreements, or when the parties do not properly understand their rights and obligations. Legal guidance when entering a leasing arrangement assists to minimise these disputes.

Retirement Living

A retirement village is typically a community-style development offering accommodation and services to retirees and the older generation. Retirement villages range in the level of care and services they provide and there are various legal structures through which an interest in a retirement village may be held. Some arrangements provide for outright purchase of a dwelling; others provide for licensing or long-term leasing.

Retirement villages are governed by legislation and regulations specific to each state / territory. These laws set out the legal relationship between operators and residents.

When expressing interest in residing in a retirement village, proposed residents must be given a ‘Public Information Document’ and residence contract with details including fees and charges, the type of accommodation and services available, rules regarding matters such as car parking, visitors and the keeping of pets, exit fees and processes for re-sale. These details are designed to assist prospective residents to compare villages and services and to understand their financial obligations.

Our conveyancing and property law experience is extensive, having worked with numerous individuals, small businesses and corporate clients assisting them across a broad range of property law matters.

If you need any assistance contact one of our lawyers at hello@castlegatelaw.com.au or call 07 5480 6200 for a no-obligation discussion and for expert legal advice.