Property law concerns the rules governing the rights of ownership and interests in real estate and personal property. More often, it involves the sale, purchase and transfer of land; the creation of easements and other interests in land; developing and registering plans of subdivisions; commercial and retail leasing; and occasionally, disputes regarding ownership, boundaries or access.
Conveyancing is the transfer and registration of title in property from one party to another whether that transfer is triggered by the sale or purchase of real estate, a family law property settlement, or disposals / acquisitions between family members, trusts or corporate subsidiaries.
Buying residential property
Buying residential property essentially involves three stages – pre-purchase investigations, exchange of contracts and settlement. The aim during the conveyancing process is to ensure the new owner obtains clear title, is aware of any interests registered over the land (easements or rights of carriageway), is satisfied with its permitted use and the state and condition of any dwellings. This is achieved by conducting various searches and investigations before and after exchange of contracts.
As a legally binding contract is entered into the buyer must ensure that being able to fund the purchase price on the day of settlement is a certainty, either by ensuring the contract made subject to finance, or by having the cash available.
Stamp duty and GST issues should also be considered.
Selling residential property
Selling residential property requires that owners have a legally binding contract for sale, which in Queensland is often prepared by the real estate agent.
Owners warrant that there are no adverse affectations concerning the property which are not disclosed in the Contract for Sale. If the purchaser subsequently finds out that the property is affected by a matter that ought to have been disclosed, for example if the land is on the Contaminated Land Register, the buyer may in some instances have the right to terminate the contract and/ or exercise certain rights under the contract.
The seller is bound to transfer clear title and must be able to do so as at the date of settlement including ensuring that there any mortgage over the property is able to be discharged as at the date of settlement.
Community Title Scheme (or Strata Title) property comprises land in a community title scheme divided into lots and common property. The legal title to the lot, defined by the cubic airspace and interior surfaces of the walls, ceilings and floor (usually the inside of a unit or apartment and its balcony) is held outright by the owner who also holds an interest with other lot owners in common property such as stairways, lifts, gardens and swimming pools.
After purchasing a strata unit, the owner automatically becomes a member of the owners’ corporation, the “Body Corporate” which is responsible for managing the community title scheme which involves arranging adequate insurance, repairs and maintenance, keeping records, and appointing managing agents or building managers.
Buying off the plan
Buying off the plan entails purchasing a property that has not yet been built or land, the plan for which has not yet registered. An off the plan purchase may not settle for two to three years after negotiations.
Contracts are usually lengthy and contain many conditions and variables such as a series of completion dates providing a buffer to allow vendors additional time to finish the project and complete the contract. The contract also allows for variances in design, size and finishes subject to permissible limits.
Once the development is completed and the plan registered, purchasers usually have around two weeks to complete.
An auction occurs when interested purchasers register to bid publicly for a property. The person or entity with the highest bid, subject to a reserve price, becomes the purchaser on the day of the auction and contracts are immediately exchanged and the 10% deposit is payable. The transaction then proceeds through the usual conveyancing steps.
Auctions are regulated by legislation and the agent conducting the auction must maintain specific records and conduct the auction in accordance with the regulations.
Commercial leases set out the rights between a lessor and lessee regarding the occupation and use of a property. Commercial leases classified as ‘retail’ are governed by specific legislation which requires the lessor to provide certain disclosures before the lease is entered. Retail leasing laws also prescribe matters such as minimum lease terms, how rent reviews operate, assignment provisions and mechanisms for resolving disputes.
Leasing disputes usually arise when the parties are unaware of their rights and responsibilities, or the lease provisions are ambiguous.