Other Property Law
Ownership interests in property
The way in which a legal interest is held in property is an important consideration.
A joint tenancy is subject to survivorship provisions – when one owner dies, the other automatically inherits the deceased person’s share which cannot be left to anybody else, even by contrary terms in a Will. While joint tenancies are generally appropriate for domestic partners, this may not always be the case. Joint tenancies may also apply to more than two property owners, in which case the property passes jointly to any remaining owners after the death of one of the joint tenants.
Property held as tenants in common can specify the individual shares held by each owner (for example 50/50 or 30/70). In such cases a co-owner can transfer, sell or leave his or her share to a beneficiary by Will.
It is important to obtain legal advice regarding property co-ownership to prevent unintended outcomes in estate planning and protect interests should future disputes arise triggered by matters such as financial stress or breakdowns in personal or business relationships.
Mortgages
Most people rely on a loan from a lending institution to help finance the purchase of a property. A mortgage is essentially a ‘statutory 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 to the property. The loan contract gives the lender the right to sell the property in the event of a default.
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 neighbouring landowners access to their 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 and should be fully investigated during a property transaction.
Encroachments
An encroachment occurs when a building or fixture from a property intrudes onto adjoining land. Encroachment issues may be simple to fix, such as a few overhanging tree branches.
More complex encroachments such as structures that have been incorrectly built over a boundary can affect the use, enjoyment and value of a person’s property. These issues can result in disputes between landowners however, with the assistance of a property lawyer, can be negotiated and legally resolved.
Strata Title Property
Strata title property comprises land in a development divided into lots and common property. Legal title to an individual unit is held outright by an owner who also holds an interest with other lot owners in common property such as stairways, lifts, gardens and swimming pools.
After purchasing a strata unit, the owner automatically becomes a member of the owners’ corporation which is responsible for managing the strata scheme. This includes arranging insurance, repairs and maintenance, keeping records, and appointing managing agents or building managers.
Commercial and retail leasing
A commercial lease governs the relationship between a landlord and tenant regarding the lessee’s right to occupy the landlord’s premises.
In Queensland, retail leases are governed by the Retail Shop Leases Act 1994 (Qld) which aims to enhance consumer protection for lessees. It sets out minimum terms for lease agreements and promotes transparency and fairness in the retail leasing industry. Subject to some exclusions, the Act applies to premises located in a retail shopping centre and / or that are used wholly or predominantly for conducting a retail business. Under the Act, the failure of a lessor to provide a disclosure statement that sets out important information for the lessee, may be grounds for the lessee to terminate a lease.
Commercial leases can be the subject of legal disputes which often occur due to poorly drafted, ambiguous or non-existent lease agreements, or the failure of the parties to understand the terms. Legal guidance when entering a leasing arrangement assists to minimise these disputes.
Retirement Living
Retirement villages provide an opportunity for older residents to live in low-maintenance accommodation in a secure community with access to services and facilities. Operators must provide certain information with the proposed contract to potential residents. This information is designed to assist residents to compare villages and services and understand their financial obligations under the proposed arrangements.
Information that must be provided includes details on fees and charges, mandatory funds, the type of accommodation and services available, exit fees and processes for re-sale and dispute resolution.
The residence contract sets out the legal rights and responsibilities of the resident and the retirement village and should be carefully reviewed.
Property law can be complex and generally involves significant assets. We offer advice and assistance regarding:
- Property ownership interests
- Mortgages, guarantor advice and legal certificates
- Auction contracts and off-the-plan purchases
- Commercial sales and purchases
- Commercial and retail leasing
- Retirement village purchases, leases and service contracts
- Building contracts and owner-builder issues
- Subdivisions and developments
- Easements and covenants
- Encroachment issues
- Co-ownership property dispute resolution and litigation, if required
- Powers of Attorney
- Family transfers
- Strata / body corporate matters including representation at QCAT or Court
If you need any assistance contact one of our lawyers at [email protected] or call 07 3733 1541 for a no-obligation discussion and for expert legal advice.