Property law provides the foundation to resolve property disputes and for wealth to be acquired through the transfer of valuable objects. While this sounds simple in theory, property law is quite a complex field. Some property rules are truly arcane to a modern mind, yet they are at the heart of many everyday arrangements. Outside of a conveyancing transaction, property law can affect numerous people throughout all walks of life.
Family property transfers
Sometimes legal interests in property are transferred outside of typical buy/sell arrangements. Examples include transfers pursuant to a family law property settlement or the transmission of a deceased owner’s interest in property to a surviving joint tenant or beneficiary. Interests in property may also be transferred into a trust for asset protection or as part of an estate plan.
Transferring real estate can trigger a duty liability and can have significant legal, financial and taxation implications. These should be discussed with your accountant and lawyer and carefully considered before putting your plans into action. We can advise on the legal implications of your proposed transfer, and work with your accountant to structure your arrangements to achieve their objectives and to access any eligible duty concessions.
Understanding “interests” in property
Various interests in land can have a significant impact on its value and use. If you are buying, selling, or developing land, it is helpful to understand the effect of some of the common types of interests registered on a property’s title. In some cases, certain interests, such as a mortgage, will need to be removed for an incoming purchaser to obtain clear title to the property. In other cases, interests will need to be considered in your overall plans for a property and may even need to be created, modified, or extinguished (if possible) when developing land.
Mortgages
Most people rely on a loan to help finance the purchase of a property. A mortgage is essentially a “charge” in favour of a lender over property held in the borrower’s name. The mortgage secures the repayment of the money loaned and is registered on the title of the property.
Easements
An easement is a right to use property belonging to someone else in a certain way. The easement may be a private easement, such as a strip of land giving the owners or occupiers of neighbouring land access to their property, or a public easement, like an easement for the maintenance of sewerage or electricity services.
Restrictive covenants
A restrictive covenant is an agreement concerning land that limits or prevents the use of that land in a specific way to the benefit of other land, usually to protect its value or enjoyment. An example is a covenant created in a subdivision that specifies dwellings can only be built with certain materials such as brick veneer. The intention is to protect house values by maintaining “standards” within the neighbourhood. The benefit and burden of a restrictive covenant typically bind subsequent owners of that land.
Caveats
A person with an interest in land that may not be registered or recognised in a formal sense may need to lodge a caveat to protect that interest.
A caveat is a statutory injunction preventing registration of further dealings over a property without first notifying the person who lodges the caveat (the caveator). The caveat itself does not formalise or prove the interest claimed but warns of the existence of that claim. Once registered, the caveat shows on the title to the property and alerts others wishing to deal with the land.
To register a caveat, you must have a genuine interest that attaches to the property. Legislation and case law determine what a caveatable interest is, and your lawyer will be able to advise on this point. The wrongful lodgement of a caveat may leave you liable for any loss incurred by the landowner including legal costs to have the caveat removed.
How can we help with your property matter?
We specialise in property law and cover the full spectrum of legal issues and matters arising with respect to property. Our services are reliable, tailored, and personalised; delivered by qualified, reputable experts in the field. We can assist with:
- General property law advice including ownership interests
- Family and interrelated property transfers
- Stratum, strata, or community scheme advice
- Preparing and advising on easements, covenants and restrictions on use including development related easements
- Advice on compliance with by-laws, creation of new by-laws and amendments to existing by-laws
- Agreements for lease and development leasing
- Preparing and negotiating management agreements for building managers and strata managers / amendments to management statements
- Preparing licence agreements
- Preparing and lodging caveats
- Powers of Attorney
If you need assistance, email [email protected] or call 02 8999 1080 for expert conveyancing and property law advice.