Property Law

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.

Residential conveyancing

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.

Purchasers

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.

Vendors

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 and receive their deposit back.

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.

If you need any assistance contact one of our lawyers at law@etheringtons.com.au or call 02 9963 9800 for a no-obligation discussion and for expert legal advice.

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