Buying residential property
When purchasing property, buyers need to know exactly what they are getting. Due diligence involves a series of investigations to ensure that the property may be used for its intended purpose, the implications of any easements or other restrictions on the property are understood, and that the structures are sound and compliant.
A purchaser who fails to complete a contract after exchange risks significant penalties. Your lawyer will recommend the relevant searches and reports to protect your interests and guide you through the entire conveyancing process.
Selling residential property
Before offering residential property for sale, a written contract must be in place with certain disclosure documents attached, such as a title search, plan of the land, drainage diagram and local council planning certificate. If these requirements are not met a purchaser may have the right to rescind (cancel) the contract.
Vendors may also need to disclose other information in the contract and a lawyer can advise how such issues need to be dealt with.
Buying a unit
Owning a strata title property means that you will hold title to an individual lot as well as sharing the use of common areas such as stairways, lifts and gardens.
After completing the purchase of a strata property, the individual lot owner becomes a member of the owners’ corporation which is responsible for managing the strata scheme. This involves the financial management of the scheme and arranging insurance, repairs and maintenance to common property. Additional ongoing financial obligations must be factored into the purchase, and these may be significant, particularly where major repairs and maintenance to common property are required.
Strata schemes also have by-laws which regulate matters such as carrying out renovations to your unit, noise, parking and the keeping of animals. All should be investigated before entering a contract.
A sale/purchase transaction for rural land may include several ‘parcels’ making up the entire property. Details of each title should be included in the contract. The transaction will need to consider matters such as water licences, access, irrigation rights and pump approvals.
If the sale incorporates a farming enterprise, then the business aspects of the transaction must be considered. In addition to the dwelling and fixtures, the contract may include livestock, crops, plant and equipment. Details will need to be included in an inventory, with the contract setting out the process for transferring these items.
In some cases, it is beneficial for clients involved in rural business transactions to allow us to work with their financial professionals so that price apportionment, stamp duty and tax issues can be addressed. The transaction should be structured to provide the best possible financial outcome.
A retirement village is typically a community-style development offering accommodation options to retirees, generally aged over 55 years. There are different types, and the legal arrangements vary considerably. Some contracts provide for outright ownership whereas others are loan-licence or leasing arrangements.
Retirement village operators must provide prospective residents with a disclosure statement before entering a contract. The contract governs the rights and responsibilities of the resident and retirement village, and sets out details of occupancy rights, use of common facilities, the services included which may be assisted living, the fee structure including ongoing contributions for management and maintenance, and relevant exit fees.
Commercial and retail leases
A commercial lease governs the relationship between a lessor and lessee regarding the lessee’s right to occupy premises and carry out its business operations.
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 lessor must also comply with specific disclosure obligations.
Commercial lease disputes often arise because of poorly drafted, ambiguous or non-existent lease agreements, and/or the failure of the parties to understand the terms of the lease. Each party should obtain independent legal advice to ensure a proposed lease contains fair and compliant terms.
Property development and subdivisions
Property development generally involves the improvement of land for profit. Whether your project involves the subdivision of one lot into two, or multiple lots for development, there are many legal and financial matters to consider.
Property development is governed by legislation, regulations, planning schemes and policies administered by local councils and other government bodies. 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 other professionals to check off due diligence matters, liaise with relevant authorities, and to prepare and explain titling and legal concepts is invaluable throughout this process.
Investing in property through your Self-managed superannuation fund (SMSF)
Over recent years, legislation has been introduced allowing SMSFs to borrow funds to purchase certain ‘acquirable assets’ provided the borrowing arrangements are in a prescribed form and satisfy strict requirements. An SMSF can only borrow funds to purchase an investment property through a limited recourse borrowing arrangement.
Buying a property through a SMSF may be a viable investment strategy. However, the decision to set up a SMSF for the purchase of property carries some financial risk and must form part of the overall investment strategy. If you are considering using your SMSF to purchase property, it is important to obtain financial and legal advice to ensure your proposed purchase does not breach the sole purpose test and that other pitfalls, such as excessive duty liabilities, are avoided.
Whether you are a vendor, purchaser, investor or developer our experienced property team can guide you through the complex world of conveyancing and property law to minimise risk and protect your rights.