Conveyancing & Property Law

This article provides a summary overview of the main provisions of the Retail Leases Act (NSW) 1994 as they apply to commercial retail tenants and landlords.

Claiming your piece of the ‘Australian Dream’ is becoming harder and, with more at stake than ever, buyers should be aware that it will not be always easy nor problem free. Your best defence in keeping the dream from becoming a nightmare is to simply arm yourself with the best possible information and advice.

Deciding how to settle a dispute - Choosing a process - Commencing litigation - Pre-trial procedures - Discontinuance or withdrawal - Enforcement of judgments - Costs of Litigation - Time limits - Lawyers

If you are purchasing a property, as part of acting on a conveyance your lawyer will make enquiries from the vendor about the title to the property. These are called “Requisitions on Title”.

The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice.

Each lot owner in a strata plan is required to pay levies (usually due quarterly) which make up the administrative fund and sinking fund of the strata scheme.

The NSW property market has been given a boost in the 2010 State Budget with incentives for those building their own home.

The Home Building Amendment Bill 2008 ("the Bill") received Royal Assent on the 28th November, 2008. The Bill has amended the Home Building Act 1989 ("the Act") to make further provision for the suspension of building licenses, the taking of disciplinary action and the requirements for home warranty insurance.

The NSW government has increased the first home owners grant for those buying new dwellings by $3,000, in the mini-budget released on 11 November 2008, in a surprise move aimed at stimulating the ailing housing market. The economic sweetener takes the grant to $24,000, including recent increases from the federal government.

It doesn’t take a degree in economics to realise that housing prices in Australia is rather expensive. How about that for a classic bit of understatement! As the dream of home ownership becomes ever more distant for an increasing number of Australians, maybe there’s another alternative available? Has anyone out there heard of the term ‘adverse possession’? No? Curious as to what it is? Well, you should be, because adverse possession is actually a very interesting law.

An Act to amend the Real Property Act 1900 and the Real Property Regulation 2008 in order to abolish the Torrens Assurance Levy ad valorem tax was introduced into the NSW parliament on 9 May, 2011. It was assented to on 24 May 2011.

The Retirement Villages Amendment Bill 2008 passed through Parliament on the 10th December, 2008 and will amend the existing Retirement Villages Act 1999 which regulates the retirement village industry in New South Wales.

This article considers the process of compulsory land acquisition. In some other jurisdictions (eg the United States) this is known as the concept of "eminent domain". Essentially, compulsory acquisition is the process by which a government body acquires land for the benefit of the public. This acquisition may be by voluntary agreement with the owner or through a compulsory acquisition.

It’s only logical that people who are either married, in serious long term relationships, or are just looking for an investment opportunity, will consider pooling their resources together in the purchasing of property. At common law, co-ownership of land can either be achieved either as a tenancy in common or via a joint tenancy. Depending on the status of the joint ownership of the land, different rights and duties will arise in relation to each category of property co-ownership.

Environmental protection is a somewhat nebulous concept in property law. Generally speaking, the term refers to the enforcement activities of the Environmental Protection Agency in each of Australia's states and territories (or, in the case of Queensland, the Department of Environment and Resource Management). The scope of these laws is wide and not restricted to land owners. However, this article outlines a few general points that can help you in determining when environmental laws and regulations could apply to your situation.

Under the NSW Coastal Protection Act, which makes provisions for the use and occupation of the coastal region, the NSW government provides for the protection, preservation and sustainable use of coastal regions. On 21st October 2010, an Amendment Act was passed through parliament, amending several pieces of legislation pertaining to the coastal environment. This amendment affects the Coastal Protection Act, the Local Government Act 1993, and the Environmental Planning and Assessment Act 1979. The primary intent of the amendment is to improve arrangements for dealing with coastal erosion. Recent weather events, escalating storm activity and flooding, and rising and changing sea levels have made it essential that the effects of erosion on the coastal strip and associated regions be addressed. This framework legislation does not outline specific solutions for individual areas, but rather provides a structure for management of a range of issues.

The recent New South Wales Court of Appeal decision in Sabah Yazgi v Permanent Custodians Limited [2007] NSWCA 240 considered what was secured by a mortgage when the signature of one of the parties was forged.

The rules governing home units are becoming increasingly more complex.

Possession under property law is a fundamental concept, and for the most part if we have a particular good, or land under our control, we would generally consider the property ours. However, what happens if there are multiple claims to property? How does the law deal with competing claims to possession? Possession is considered as such an essential property right, that a person who is found to be wrongly interfering with another person’s right to possession, will be committing a breach of duty under the law. The most common torts in regards to interference with possession are trespass, conversion and detinue. Each tort has different elements, and this article will give readers a brief overview of how a breach may occur in regards to the various torts.

It is unfortunately not uncommon for people to find the home they want, have an offer accepted, and then before contracts are actually exchanged, another buyer sneaks in ahead of them.

Any home-owner is going to find themselves dealing with numbers of different types of insurance policies, and for many this is a jungle. Let us have a look at the different types of insurances which may be important to home owners.

Strata title is a New South Wales invention, which was instigated by major property developers in 1960. The building of unit blocks was becoming popular, but there was then no means of giving buyers a Torrens title deed as they would have received if they had bought a free-standing home.

In recent newsletters we have had a look at leasing or renting residences and retail premises. The other type of properties often leased are commercial or industrial premises, and typical of these will be office premises, industrial units and workshops of various kinds.

The vast majority of shops, whether they be in a large suburban shopping centre or in a suburb, are owned by the operator, and in many cases the premises are leased from the land-owner. The Retail Tenancies Act provides a code dealing with leases of retail premises, and is primarily designed to protect tenants.

With a population which is aging, but is also mobile, more and more of us are giving Powers of Attorney, usually to partners or family. The usual Power of Attorney gives the attorney the power "to do on my behalf anything I may lawfully authorize an attorney to do". It also says, "This power of attorney is subject to the following conditions and limitations", and commonly the word "nil" appears there.

On March 13 2008 JP Morgan and Fujitsu Consulting released a new report entitled “The JP Morgan/Fujitsu Australian Mortgage Industry Report for March”. The report is based on the results of telephone interviews with 26,000 Australian households, and follows decisions by the major banks to increase their standard variable home loan rates by more than the 25 basis point increase of the Reserve Bank on March 4.

One of the sad signs of the effect the Global Financial Crisis is having on Australia is the increasing number of people suffering "mortgage stress", and of mortgage foreclosures. In this Newsletter we shall have a look at mortgages, how they work and what you can do if you are facing difficulties.

The Department of Planning has released an exposure draft of the Concurrences and Referrals State Environmental Planning Policy (SEPP), which will further streamline the processing of development applications and give councils given greater decision-making autonomy.

First time home buyers in NSW will soon feel the pinch of tighter stamp duty concessions, with the introduction of new measures by the State Treasury in the 2011-2012 Budget.

Federal Small Business Minister, Craig Emerson, says a review by the NSW Government that could result in the removal of unnecessary occupational licences would make the State more attractive to qualified people from interstate.

The state's recent planning laws have come under scrutiny, sparking calls by the Local Government and Shires Associations of NSW (LGSA) for an Upper House Inquiry.

The importance of Local Environmental Plans (LEPs) has become evident over the last decade, with increased development, population shifts, changing weather patterns and extreme weather events. LEPs provide shape and guidance for overseeing the way land is used in the State and for determining decisions made with regard to the estimated $20b worth of local development in the State’s annual budget. LEPs set down zoning and development controls and afford communities a way to look at and discuss future planning and environmental directions.

In New South Wales, planning and development activities are carried out under the Environmental Planning and Assessment Act 1979 (NSW). The legislation creates a complex system of state, regional and local planning.

One of the enduring dreams for Australians is property ownership, and therefore, it is of little surprise that property interests in land are so fiercely guarded. The array of proprietary interests can be mindboggling, and can include tenancy, sub-tenancy, mortgages or fee simple, just to name a few of the different proprietary interests that exist. Due to the myriad property interests in land which are available – and coupled with how jealously people guard their interests – it is perhaps of little surprise that disputes in relation to competing interests in land will arise. It is not uncommon for numerous valid interests in land to be held simultaneously by different parties, therefore, how are disputes resolved in such circumstances? If there are a number of valid interests in land: Who would the law consider as having the better interest?

In Australia, most of the laws that govern property boundaries are determined by state legislation and vary from state to state. Fencing regulations often vary between local, shire and regional councils. Housing estates or residential communities may also have specific regulations about fencing. For up-to-date information, it is advisable to contact your local council or a solicitor in the state where the property is located.

Australia has a robust and comprehensive system of property registration. This system also dictates that extent of property ownership, such that a person obtains their title to land (meaning that they own it) through registration, rather than having to register their ownership as an extra step (much like you can own an unregistered car). This article will focus on the Torrens title system, although aspects of this discussion apply equally to strata title in large developed communities. In addition, the position of land not under the Torrens title system is considered.

Unless you are planning to undertake minor and internal changes to your house, there is always a question of whether you need to seek legal approvals for renovations. For the purposes of this article, we’ll assume that you are planning a major overhaul of an investment property and that your plans involve changes to the exterior of the house, and structural changes as well as extensions. In addition, you will need to hire contractors and some potentially noisy machinery could also be involved.

In New South Wales there are three main types of leases:- residential leases, retail leases and commercial leases. In this newsletter we shall look at residential leases, which are governed by the Residential Tenancies Act.

Many Australian visitors will probably be all too aware that property prices in the country are rather expensive, and the dreams of home ownership may be out of reach for some. As a consequence, renting has become a viable alternative for those who are unable to afford buying property, and furthermore, it’s conceivable that some landlords and tenants may not have a complete awareness of their rights and obligations.

NSW Planning Minister Frank Sartor has announced three bills were tabled in the State Parliament on 15 May, as part of reforms to create an efficient and streamlined planning system.

An Act to amend the Building and Construction Security of Payment Act 1999 was assented to in November 2010. It fine tunes the way in which the problem of progress payments with regard to construction work under contract was addressed, and takes a further step towards ensuring that progress payments will be held by the principal contractor.

If you are a Senior who owns property in New South Wales or is thinking of purchasing a property in New South Wales you need to be aware of the new legislation passed through Parliament exempting you from the payment of stamp duty in certain circumstances.

It’s challenging enough for anyone to share a rental property with a stranger without also having to consider the legal ramifications of living in a shared household. However with that being said, having an understanding of the type of tenant you are is essential due to the fact that if a problem does arise with your housemate, the rights and remedies available will be dependent on whether you are a boarder, lodger, sub-tenant or co-tenant.

Most people who sign a residential lease will easily understand what they’re signing up to, as well as the associated rights and obligations. Commercial leases are no different in that the terms of the lease must easily understood and that all of the essential elements of the agreement must be outlined in the lease. If you’re about to sign a commercial lease, there are fundamental conditions in a commercial leasing agreement that should always be evident in order to ensure that you are protected in the event that an agreement has gone awry.

When you are renting a residential premise, it is important that you are aware of the legal requirements for evicting a tenant under the Residential Tenancies Act 1987 and Residential Tenancies Regulation 2006 ("the Act").

One area which can cause confusion are matters to do with fixtures, land and chattels – which can become an issue in regards to what is included in the conveyance. Some people may assume that all property included in a sale of land should be obvious, but disputes can arise in some instances when a person is trying to establish whether a piece of property is a fixture or a chattel.

Consumers in Australia enjoy a number of safeguards from false or misleading representations made in the sale of goods and services from vendors with the protections also extending to the sale or grant of an interest in land. The purchasing of land is obviously a major financial undertaking so it only makes sense that laws exist preventing a person from making false or misleading representations when selling or granting land under the provisions of the Australian Consumer Law (the ACL).

Property and land in Australia are prized commodities worth a significant amount of money, and when we’re talking about some of the sums involved, it’s natural for protections to be in place to ensure that the sale, or grant of an interest in land preventing a person from engaging in false or misleading representations are in place, and such protections can be found under the provisions of the Australian Consumer Law (the ACL).

Development applications in New South Wales are set to be overhauled with the introduction of the New South Wales Housing Code commencing on the 27th February, 2009 ("the Housing Code"). The Housing Code has been introduced within the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the SEPP") and provides for new detached houses and additions to be approved within ten days.

On 21 August 2008 the Housing Industry Association (HIA), Australia’s largest building industry association, released the most comprehensive report card available on the NSW residential sector. The report predicts a shortage of 18,000 dwellings across NSW in 2008-2009 alone, and also that fewer than 30,000 homes will be built in NSW for the third year in a row. A spokesman for the HIA said that the housing sector has become so undersupplied that illegal rent auctions were likely to escalate.

Disputes between neighbours concerning trees causing damage or blocking ocean views are all too common. But now neighbours have something else to fight about: hedges!

The Productivity Commission has just released its report, “The Market for Retail Tenancy Leases in Australia”. The Commission’s inquiry stemmed from issues arising from the growing concerns of small businesses that elements of the market for retail leases were being distorted, resulting in the exploitation of tenants.

If your home was built or renovated before the mid-1980s, the most likely scenario is that you are dealing with some asbestos in the building material. Asbestos was commonly used in cement sheeting (fibro), drainage and flue pipes, roofing, guttering and flexible building boards, and in brakes, clutches and gaskets.

Conveyancing is a legal term for legal transactions involving real estate. It can involve buying and selling, financing, leasing and other areas such as subdividing and the creation of easements and covenants. Australia has one of the highest percentages of home ownership in the world, so many of us will be involved in a conveyance during our lives.

As a valuable commodity, title to land and the protections it confers via the Torrens system is extremely important. However, what about unregistered interests in land, more often referred to as caveats? What effect do caveats have on the land?

In days of the GFC, we hear a lot about interest rates, mortgagee sales and the like, so what exactly is a mortgage? A mortgage is a document which secures a loan against property and is usually registered with the Land Titles Office.

When we talk about property we usually use the word in a general sense - meaning anything someone owns. Often we use the word when talking about real estate - "We have a property in Queensland", or referring to a rural farm.

It’s probably safe to suggest that the key property rights include possession, ownership, and title is often indistinguishable and most people would never think of differentiating between the terms. For example, possession and ownership connotes the same thing in everyday usage, however, it is when we view the different property concepts through legalese tinted glasses, is when distinctions will arise between possession, ownership, and title.

Our own Australian Torrens land title system is remarkably straight forward. You can look at your title deed, known as a Certificate of Title, and see who the owner is. Also listed on the deed are "Notifications" matters which affect the title, and the most common of these are mortgages, leases, easements and covenants.

If we’re lucky, a neighbour can become a close friend and will be someone we can depend upon to pick up our mail when we’re on holidays. On the other hand, neighbours can also become difficult to deal with on the odd occasion but will still be manageable for the most part. However, on the rare occasion some people might have to deal with a neighbour that is an absolute terror and if such a situation arises; are there any laws that can assist with a person who has to deal with a neighbour who is an absolute nightmare?

Regarding rental properties, perhaps the two most contentious issues facing tenants will be the right of the landlord to enter into the property for inspection, and their right of re-entry in the event of non-payment of rent. There’s obviously two competing interests at issue here, being: the landlord’s right to protect their property interest; and the tenant’s right to privacy and enjoyment of the property. Due to the fact that the issue of re-entry by a landlord to either inspect the property, or non-payment of rent may be a touchy area, there are numerous covenants implied by legislation that deal with such issues that this piece will attempt to cover.

The University of New South Wales, through the City Futures policy research centre, recently completed a survey of 1,550 strata owners, managers and peak body representatives focusing on strata titled developments, with the results released in a study titled, Governing the Compact City. Some of the more interesting findings from the Report found that 51 percent of owners in strata titled developments have had a dispute with a neighbour; 39 percent had some issue with strata management relating to repairs and who should pay – and if we take into further account that approximately 3 million Australians currently live in strata developments, some of the conclusions of the Report highlights some of the challenges associated with strata property, and in particular, a lack of understanding of the general duties of everyone residing in strata-titled developments.

Many budding entrepreneurs planning to launch a business from home may not be aware that strict requirements exist regarding the types of commercial activities permitted in a private residence and these obligations are generally set-out in council rules and regulations, as well as State and Territory legislation. Matters that can be covered can relate to zoning and development, pollution, health and safety, noise, energy use, parking and any other laws related to environmental impact.