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PROPERTY LAW

WHAT WE DO

  • Conveyancing
  • Covenants and easements
  • Leases
  • Property dispute resolution
  • Property development
  • Joint venture operations
  • Licences
  • Negotiation

We intervene on three levels. The first is explanation to the satisfaction of our clients of the commitment proposed. The second is then to negotiate and review before our clients commit. Finally, we do all things necessary, including dealing with parties such as banks and administration, to ensure the successful accomplishment of what our clients committed to achieve, within their budget.

IN BRIEF

Contract for sale or purchase of real estate:

There are a number of fundamentals to checked out when buying or selling. These include:

  1. Ensure that what you are buying or selling is correctly described in the contract. The description of the property and the owner on the front page must correspond to that in the title search in the contract itself.
  2. Check out the date for completion. This is usually 42 days (6 weeks) from the date of the contract, but may be varied by agreement.
  3. Is the property sold with or without a tenant? If with a tenant, then the lease agreement must be included in the contract, even if it has expired and the tenant is now only a tenant from month to month.
  4. Check out the inclusions, because anything not listed is not included in the sale and must be removed before completion of the contract.
  5. Is the deposit payable 10% or is it less (5%)? Will a deposit bond be acceptable instead of payment of deposit?
  6. Is the sale subject to GST, and if so, has it been included?
  7. If the property is subject to land tax, has provision been made to apportion this?
  8. If the property is strata title, check that the current managing agent is shown.
  9. It is always a good idea to arrange for a building inspection for a house and inspection of strata records for strata title to discover any potential problems and possible future expenses.
  10. Special conditions are usually inserted to vary the standard terms of contract. The vendor needs to ensure protection by these special conditions, and the purchaser needs to ensure that these special conditions are not too harsh.
  11. Contracts must include title search, zoning certificate, drainage diagram and sewer reference map. These should be up to date and replaced if they are dated, otherwise they will indicate that the property has been on the market for some time, and so appears difficult to sell.

Commercial leases:

It is important to distinguish between leases for commercial space such as offices, warehouses and factories on the one side and retail premises on the other. This is because leases for retail premises are covered by the Retail Leases Act with stricter requirements, and importantly that a lessor is not to charge the lessee for the lessor’s legal costs in drafting the lease.

Common factors are:

  1. The title needs to be checked to ensure that the lessor has the capacity to lease.
  2. Similarly, for correct description of the property to be leased and the lessor to be verified.
  3. In negotiating terms of the lease, lessors prefer rent holidays, being a number of months rent free, rather than a reduction in rent. This is because one of the key factors in fixing a value of a property is its rental return. If the rent is reduced, then the value of a property for sale or mortgage will likely be reduced. This will not happen if the lessor and lessee agree on a rent holiday instead, so giving the equivalent of a reduced rent.
  4. The lease itself requires careful drafting and checking to ensure that it reflects the terms negotiated including,
    • term of the lease;
    • option for the lessee to renew,
    • rent,
    • rent holidays,
    • rent reviews,
    • contributions by the lessee to outgoings,
    • any demolition clause allowing for termination before end of term,
    • determination of market rent,
    • process for dispute resolution, and
    • permitted use.