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Property Law

Property law concerns the rules governing the rights of ownership and interests in real estate and personal property. Conveyancing, planning law, subdivisions, and boundary disputes all form part of a broad area of law affecting homeowners, developers and investors. We have assisted many clients in this complex and sometimes multifaceted area – from buying a first home to advising on large-scale mixed-use developments.

We can assist with:

  • Buying or selling residential property
  • Buying or selling rural property
  • Buying or selling commercial property
  • Auction sales and purchases
  • Off-the-plan purchases and sales
  • Titling issues and the creation and release of easements and covenants
  • Mortgages, loan agreements and liens over property
  • Property development and subdivisions
  • Put and call option deeds
  • Property co-ownership disputes

Conveyancing

Conveyancing is the process of transferring the legal title of property from one party to another. A property transaction usually involves one of the biggest financial decisions an individual makes in life, so it is important to be guided by professionals.

We manage the entire legal process required for your property transaction including reviewing and negotiating contract terms, flagging potential issues, liaising with lenders and agents, organising searches and enquiries, and arranging settlement. There is a lot to do in a short timeframe and overlooking just one step can have devastating financial and legal consequences.

Buying a residential property

Before seriously investigating the property market you will need to ensure you have finance in place so you can move forward when it comes to making an offer. Be sure to read any offer of finance and loan documentation thoroughly, so you are aware of the fees and charges, and your rights under the loan contract and any mortgage registered over the property you buy. You are entitled to legal advice and are under no obligation to sign anything on the spot.

Pre-purchase inspections

Once you have found a property you like, you will need to arrange a pre-purchase building inspection report and perhaps a pest inspection report. These are written reports about the condition of the property and can flag potential costly problems. You may be able to use this information to negotiate a reduction in the purchase price. If you are not sure who to trust to do this inspection, talk to your lawyer.

Making an offer

If you are happy to proceed after finding a suitable property, you can make an offer. You may be asked to pay a small sum as an initial deposit, but this is fully refundable if you do not end up signing the contract. It does not mean that the property is yours yet either, as the agent can take other offers.

Signing the contract

If your offer is accepted by the seller, you should take the contract provided to your lawyer or conveyancer to discuss your circumstances. There may be several things that can be negotiated in your favour, and you need to be absolutely clear on your rights and responsibilities before signing.

When you do sign the contract you will need to pay the deposit, up to 10% of the purchase price. The deposit usually held with the real estate agent and is released to the seller after the property is settled. If you do not have cash available for the deposit, your lawyer or conveyancer can advise about getting a deposit guarantee in lieu of cash.

Settlement

After the contract has become binding, your lawyer or conveyancer has a number of tasks to perform including:

  • arranging payment of stamp duty
  • liaising with the lender about the mortgage
  • checking with various government authorities to see if they have a vested interest in the property
  • checking to see if there are any outstanding debts to local council
  • calculating adjustments for council, water and strata rates
  • making final checks on the title

Traditionally, settlement of your purchase involved your lawyer meeting with the seller’s lawyer or conveyancer and any lenders. The funds were handed over in exchange for the title to the property and keys. With the introduction of electronic conveyancing, most settlements now take place on-line using an electronic platform.

Selling a residential property

The contract

Once you’ve made the decision to sell your property, you will need to have the Contract for Sale of Land prepared. The contract includes not only the legal terms and conditions of sale but will specify what items are included or excluded, and any other special requirements you might have, like a longer or shorter settlement period than usual, or perhaps that the contract be conditional upon another contract for you to buy your next property. Various conditions may be included in the contract, so it is important to discuss your circumstances with your lawyer.

You also need to know your disclosure responsibilities, as failing to disclose certain things can lead to serious issues.

The deposit

Once a purchaser is found and the contract has been signed and is legally binding, a deposit is generally payable by the purchaser and held in the selling agent’s or solicitor’s trust account.

Settlement

Settlement occurs when the balance of the purchase price is paid in exchange for the title deeds and keys to the property. Settlement is scheduled in accordance with the contract and is usually around 30 days after signing contracts. During this timeframe, your lawyer will liaise with your bank regarding the release of any mortgage held on the property.

Before settlement the purchase price is adjusted to reflect the council rates, water rates and strata fees that need to be shared between the parties. Any other adjustments are made in accordance with the contract.

Once settlement takes place, the real estate agent is authorised to release the deposit to you, less their fees.

Property development – subdivisions

A subdivision involves the partition of 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 legislation, 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.

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

We have a deep understanding of property law and conveyancing and have assisted many clients achieve their property goals with sound advice and guidance.

If you need any assistance, contact one of our lawyers at [email protected] or call 07 4992 3600 for expert legal advice.