Property Transactions
When we think about property law, a conveyancing transaction for the sale and purchase of land usually comes to mind. From a real estate perspective, property law covers a range of matters, such as:
- ownership interests and family transfers
- creating or dealing with registered interests like easements and caveats
- loan agreements and mortgages over property
- commercial and retail leasing arrangements
- planning, subdivision, and the development of land
- disputes between property co-owners
All fall under a broad and complex area of law affecting homeowners, neighbours, developers, investors, and the general community. We can assist in all these areas.
Property ownership interests
The way that legal interests are held in property between co-owners can be an important consideration when it comes to asset protection and estate planning.
When you hold property as “joint tenants”, the interests are held as a whole and cannot be separately apportioned. Joint tenancy is subject to the rules of survivorship. If a co-owner dies, their share automatically passes to the remaining owner/s and cannot be gifted to anybody else.
Whereas with property held as “tenants in common” owners 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.
Complications and disputes concerning property can be triggered by changing circumstances – a relationship breakdown, financial stress, or the death of a co-owner. If you are buying or own property with another party, it is important to understand the legal implications of how your interest is held. Depending on your circumstances, it may be beneficial to change your ownership interests and we can help you to do this.
Transferring shares and interests in property
Legal interests in property may be transferred in the absence of a standard buy/sell arrangement. This can happen pursuant to a family law property settlement or court orders. Shares or interests in property may also be transferred as a gift or to pass a deceased property owner’s interest to a surviving joint tenant or beneficiary.
The idea of transferring a share in property may seem simple, however transferring real estate may have taxation implications and/or trigger transfer duty liabilities. It is important to understand the legal and financial effects of a proposed transfer and to ensure the transaction is properly structured to achieve its objectives and the correct documents used to access any eligible duty concessions.
Registered interests in property
The registration of an interest on a property’s title provides vital information about the land, particularly for a proposed purchaser or developer. Some of these interests will need to be removed before a transfer is completed, and some will “run with the land”, meaning they will bind future owners.
Mortgages
Most of us rely on a loan from a financial institution to fund 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 is registered on the title and secures repayment of the money loaned. If the property is sold, a new owner will require that the mortgage be removed (which will need to be arranged between the existing owner and their bank).
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 required to be crossed to access neighbouring property, or a public easement, like an easement for the maintenance of sewerage or electricity services. Easements can affect the value, use and future development of land.
Restrictive covenants
A restrictive covenant is an agreement concerning land that limits or prevents the use of that land in a specific way, while benefiting other land, usually to protect its value or enjoyment. An example is a covenant created in a subdivision that specifies dwellings may only be built with certain materials and to a specific size. The purpose here is to protect house values by maintaining a predetermined quality within the estate. The benefit and burden of a restrictive covenant typically bind subsequent owners of that land.
Property development
Property development generally involves the improvement of land for profit. The stakes are high and 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 authorities. It is important to understand the overlap of these planning and development laws and the relevant processes that apply in your area and for your project.
Collaborating with experienced professionals when embarking on a property development is invaluable to check off due diligence matters, explain legal concepts, minimise risk, and create the best structures to help achieve your objectives.
If you need assistance, contact [email protected] or call (08) 8232 8446 for professional Australia wide conveyancing and property services.