Property law covers a range of matters in addition to a standard conveyancing transaction. Ownership interests, subdivisions, easements and encroachment issues all form part of a broad and complex area of law affecting homeowners, developers and investors.
Property ownership interests and rights
The manner in which a legal interest in property is held can impact other areas of law such as succession and estate planning, and is an important consideration when disputes arise.
Property held between co-owners as joint tenants is held as a whole – the interests cannot be apportioned into specific shares and the joint tenancy is subject to survivorship provisions. When one co-owner dies, his or her share automatically passes to the remaining owner/s. It cannot be left to anybody else, even if the deceased owner’s Will provides otherwise.
Property held as tenants in common can specify the individual shares held by each owner which need not be equal and may be transferred, sold or left to a beneficiary in a Will.
Property disputes are usually triggered by changing circumstances – a relationship or business breakdown, financial stress or the death of a co-owner. It is important to obtain professional advice regarding ownership interests when purchasing property with a co-owner, or when disputes regarding legal interests arise.
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.
Amalgamations and boundary realignments
The simple amalgamation of land involves merging two or more lots containing common boundaries and held by the same owner, into one.
A boundary realignment or adjustment is the rearrangement of the legal boundaries between two lots without creating a new lot. A realignment can be undertaken to reflect negotiations between landowners to remedy encroachment issues.
An easement is a right to use property belonging to someone else. The easement is usually registered over the title of the properties affected by it (the land benefitting from, and the land burdened by, the easement).
An easement may be a private easement, such as a strip of land giving neighboring landowners access to their property; or a public easement, such as an easement for the maintenance of sewerage or electricity services.
Easements can restrict the use and future development of a property and affect its value. The proper investigation of the nature and effect of an easement forms part of the due diligence process.
Large property developments usually require the creation of new easements and / or the variation / removal of existing easements. Changes to existing easements must be negotiated with the relevant landowners and identified on the proposed plan of subdivision and accompanying legal documentation.
An encroachment occurs when a building or fixture from a property intrudes onto adjoining land. Encroachment issues may be simple to fix, such as a few overhanging tree branches.
More complex encroachments such as 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 however, with the assistance of a property lawyer, can be negotiated and legally resolved.
An option deed is an agreement to buy / sell a certain property within a specified time and on specified terms and conditions. They are often negotiated between landowners and property developers.
Buying under an option agreement enables developers to secure a price for land for future development while they arrange finance and carry out due diligence, before committing to the purchase. An option arrangement provides a landowner control over the timing of the sale. The deed can include a range of conditions to accommodate the parties’ respective circumstances.
Legal matters concerning property can be complex and require an understanding of the rules and regulations affecting ownership rights, developments, subdivisions and many other issues concerning what is often, our most valuable monetary asset.
If you need any assistance contact one of our lawyers at [email protected] or call 07 4927 9477 for a no-obligation discussion and for expert legal advice.