Property Law

Property law concerns the rules governing the rights of ownership and interests in real estate and personal property. In addition to the transfer of land, property law encompasses land development and subdivision, the creation of strata schemes, retirement village leases, residential tenancies and occasionally, disputes regarding ownership, boundaries or access.

Retirement village leases

A retirement village is typically a community-style development offering accommodation and services to retirees and the older population. Retirement villages range in the level of care and services they provide and there are various legal structures through which an interest in a retirement village may be held. Some arrangements provide for outright purchase of a dwelling; others provide for licensing or long-term leasing, with the occupier’s interest protected through registration.

Retirement villages are governed by legislation specific to each state / territory. Regulations set out the legal relationship between operators and residents who must be provided certain disclosure information before entering into an agreement. Details include fees and charges, the type of accommodation and services available, rules regarding matters such as car parking, visitors and the keeping of pets, exit fees and processes for re-sale. These details are designed to assist prospective residents to compare villages and services and to understand their financial obligations. Agreements should be reviewed and explained to prospective occupants and their families by a lawyer.

Property development and subdivisions

Subdivision involves the partition of a parcel of land into smaller lots. Once land is subdivided, a ‘title’ is created for each portion which can be separately sold and transferred. A typical subdivision may include the partition of a single lot into two, the creation of several lots in a new estate, or the development of a strata complex.

A proposed subdivision must comply with local planning laws and be consistent with planning objectives and policies. Developments must address environmental and other matters such as access to new lots, the provision of open space or other facilities, and the capacity for existing services and infrastructure to support the proposed project.

Subdivisions involve complex technical and legal processes. Original plans may need to be reworked a number of times during the approval process and before a project gets off the ground. A property lawyer can assist by investigating zoning and planning schemes, carrying out due diligence, working with building professionals and negotiating with state authorities to prepare and explain legal titling documents.

Strata titling and body corporate set up

A strata (or community title) scheme comprises a number of units in a residential or mixed development, and common property such as stairways, lifts and gardens. Units are held individually by their owners who also have a shared interest in the common property with other owners.

All lot owners are members of a body corporate which is the legal entity responsible for managing the strata scheme. Members are elected to form a committee to manage the scheme.

The functions of strata management include arranging insurances, repairs and maintenance for the common areas, maintaining financial and other records, and appointing managing agents or building managers.

Bodies corporate may enter into various legal and service agreements and must make decisions within the scope of the governing laws and regulations. They may also need to bring or defend legal action and in such cases, should obtain legal advice.

Residential tenancies agreements

A residential tenancy agreement sets out the rights and responsibilities of a landlord and tenant regarding the occupation of a residential dwelling. Legislation in each jurisdiction regulates the relationship between landlords and tenants and aims to balance the rights between both parties. These laws are administered by the various state government bodies which have in place processes for resolving disputes.

Essentially, a residential tenancy agreement provides a tenant with a right to occupy the property without unreasonable interruption by the landlord, provided the essential terms of the agreement are met. The tenant must pay the rent and maintain the property. The landlord must ensure the property is habitable, safe and secure and can only enter the premises for specific events such as permitted inspections or emergencies.

The demand for residential accommodation continues to grow and it is important that investors and tenants understand their respective rights and obligations in a competitive rental market, and that arrangements are recorded in a complying agreement.

If you need any assistance contact one of our lawyers at reception@oconnorharris.com.au or call 02 6247 6077 for a no-obligation discussion and for expert legal advice.