Property Law

We can assist you with all property matters

Our team have developed significant expertise with commercial property and residential leasing, buying and selling, property structures, subdivisions, disputes and building agreements.

Selling or Purchasing a Property

We can assist with the buying and selling of your family home, investment property, orchard, farm or commercial property.

Barry Rodgers and Dinnel Bailey-Gordon have considerable expertise in property law.

Purchasing a Property

We can provide you with advice on the agreement prior to signing and explain to you how the process works. Once you have signed your agreement, leave it with us and we will work through the conditions with you.
We can help you complete your due diligence investigation and advise you on the title, LIM and other reports and any issues that arise.

If you are looking to buy a house and land package then your purchase process can be more complicated as you will have a build contract as well. We will review your builder's contract to ensure you fully understand your obligations and that it meets your needs.

Selling a Property

We can assist you with the sale of your property by reviewing your agreement with your agent and any proposed sale agreement. It is helpful to discuss the agreement with you prior to signing so that you are aware of your obligations as vendor. If you are planning a private sale then we can assist you by drafting an agreement and assisting with the negotiations.

Buying a Unit Title Property

Buying a unit title is different to buying a freehold title property, a unit title is generally used for apartment titles or groups of properties on one piece of land where there are shared facilities ("common property"). The common property could simply be a drive way or could be as extensive as Gym facilities, lifts, and swimming pools.

A unit title is a social living arrangement. In purchasing a unit title you have to accept that there may be restrictions on what you can do to your unit and within the development. Other owners in the development are also subject to those rules and that should make for better living for all.

Before you buy a unit title property you need to ensure you have reviewed the Body Corporate rules and other documentation thoroughly and understand how the development works.

1. Pre-Contract Disclosure Statement

You will obtain a pre-contract disclosure statement prior to entering into an agreement to purchase a unit title property. That disclosure statement will contain useful information about the nature of the unit title and specific information about the unit title you are buying.

2. The Body Corporate

If you purchase a unit title property you will automatically become a member of the Body Corporate. The Body Corporate owns the common property and regulates the unit owners. The Body Corporate will have rules as to how you can use your unit and common property.

3. Levies

You will have to pay levies for the annual cost of the development, including insurance, repair and maintenance, management, leasehold costs if any and all matters relating to common property. You should find out what the levies will be before proceeding with your purchase and the levies should be included in the pre-contract disclosure statement.

It is important to note that you may also be levied for the cost of any future repairs or maintenance. Therefore, it is prudent to check with the Body Corporate regarding any expected costs for repairs and maintenance going forward and if any funds are held in reserve. There may be repair and maintenance costs for the development as a whole. The building is your investment and the state of it, including the Body Corporate governance, will affect the value of your unit.

What you should review before buying a unit title

1. We will review the title and survey plan for the development to determine what common property is and what is your exclusive area, together with any other matters on the title that will affect your use of the unit.
2. You should request and review the Body Corporate minutes for the previous two to three years and the Body Corporate’s financial reports and budgets.
3. If the unit title is on leasehold land you will need to review the lease document.
4. Always check the Body Corporate Rules to ensure your use will comply with them.
5. Insurance, including any special conditions.
6. Obtain a copy of the Body Corporate's long term maintenance plan to identify any potential large repair costs in the future.
7. Review how the Body Corporate is managed. Are regular meetings held and is it managed in accordance with the Act? We can assist you with this.
8. Is the Property Manager charging a reasonable fee or is it exorbitant?
9. Does the property have an earthquake rating?

Cross-Lease Property

Under a cross-lease title arrangement each flat owner holds a share in the total property. All flat owners then lease back to themselves their respective flat. Accordingly, a cross-lease title comprises a title for the share in the total property, a leasehold title, and lease and a flats plan.

Your lease and the flats plan need to correspond and ensure that they provide you with exclusive use of your specific area and identify areas which are marked for common use.

Generally costs relating to common use areas are divided equally between the owners.

The biggest issue with cross-leases is ensuring that the flats plan reflects the outline of the actual flat on the ground. Any difference between the actual flat and the plan of the flat could amount to a defect in title. In particular, if the vendor has built an additional room or garage, the flats plan should be amended to reflect that.

You will not redevelop or change the existing profile without the consent of your cross-lease neighbours.

A cross-lease has specific terms for your use and you should discuss those with us before you agree to buy. 

Property Development & Subdivision

We have extensive experience working with developers but also small property owners to complete their subdivisions and the on-selling of the lots. We liaise with your surveyor to ensure the project runs smoothly.

Finance

We work with all major banks to ensure that your finance and any refinancing works for you. We will assist you with:

1. Mortgages

Most mortgages are all obligations, which means that the mortgage secures any money owed to the bank. This will include prior loans, credit cards and future loans.

The Bank has far reaching powers, can demand repayment of any money owing to it from any accounts you have with the bank. You have obligations as the property owner to protect the bank’s investment and keep the property in good repair. You must not use the property as security to someone else. You must pay all outgoings on the property including rates and keep the property insured at all times for its full replacement value. The insurance policy for your property must note the bank as mortgagee.

If you default in your payments to the bank or you fail to comply with any terms of the mortgage the bank may sell the property.

Contact us to discuss any issues you have with your mortgage to ensure you understand your obligations.

2. Guarantees

The best advice is that you should never give a guarantee. In practice, however a bank will often decline to make commercial facilities available unless a guarantee is given. If the bank calls upon you as guarantor, then you must pay. You are a principal debtor and the bank does not have to call upon the debtor to pay first or to realise any securities given by the debtor. A guarantee is comprehensive and includes provisions which take away your normal rights.

The guarantee, once given continues to bind you until the debtor's obligations to the bank are completely repaid and the bank is satisfied that it will not have to repay any of the moneys it has received. You cannot get out of the guarantee without the bank's consent.

Generally, a guarantee is unlimited and covers all the obligations of the debtor to the bank. If, for example, the debtor has guaranteed the liability of someone else or has a joint loan from the bank with someone else, then you as guarantee will also guarantee those other entities and loans.

The guarantee will entitle the bank to use any securities it holds from you to recover money owing from the debtor. For instance, as noted above, if the bank holds a mortgage over your home the bank will be entitled to exercise rights of sale over your home for defaults of the debtor.

Refinancing

If you are refinancing from one bank to another then talk to us. Then simply let your banker know that you want Simply Law to undertake the refinance and provide your banker with our details.

Your banker will then send the documents through to us with your details and we will action the refinance promptly.  

Trusts

Any person considering setting up a Trust should seek specialist legal advice.

A properly established family trust can achieve a number of purposes including:

• Protecting the long term interests of yourself, your spouse and your children;
• Removing assets from the scope of family protection or testamentary promise actions after your death;
• Protecting your assets against claims by future creditors;
• Protecting your assets against relationship property claims including interests of your children against claims by their partner or spouse.

A Trust is a separate entity and is established by a Trust Deed. It is important to appoint effective trustees from the start as the trustees control the assets of the trust and usually determine which beneficiaries benefit from the trust.

The beneficiaries can be whomever you wish and may include yourself, your spouse, your children and your grandchildren and such other people or organisations as you choose.

We will work with your accountant to ensure that you set up your Trust to best serve your requirements.

Trustees

As mentioned above the appointment of trustees is an important decision and the obligations of a trustee to carry out their duties is a highly responsible position.

The law imposes a number of duties on a trustee when they are carrying out their role to ensure that they are working almost exclusively for the benefit of the beneficiaries. A trustee must take an ongoing interest in the Trust affairs and be more than a rubber stamper of decisions. Therefore, it is important that the trustees of the Trust ensure that the ongoing management of the Trust is carried out seriously and in accordance with the law. We can assist you with this.

Enduring Powers of Attorney

There are two types of enduring powers of attorney:

1. Personal care and welfare

Appoints one person as your attorney to make decisions about your personal care and welfare on your behalf if you lose mental capacity. These decisions might include agreement to medical treatment or admission to residential care or the choice of a residential home. You can only appoint one person to be your attorney but you can appoint one or more successor attorneys to act if the authority of the previous attorney lapses.

2. Property

A property enduring power of attorney appoints an attorney (or attorneys) to manage and make decisions about your property. This might include how to invest your assets, what to spend your money on, and decisions about your house. If you wish you can give your attorney authority to manage your property affairs while you still have capacity (for example if you go overseas) and to continue to act if you become mentally incapable.

You should think carefully about who you want as your attorney and how you would want them to manage your affairs. If you become mentally incapable it will be to your advantage, as well as that of the person who has to look after your affairs, to have that person properly designated as your attorney. 

Wills and Estate Administration

It is important to have a Will to ensure your property is left to whom you want. If you die without a Will you die "intestate" and your property will be administered according to the rules of intestacy. We can assist you to ensure that you have an up to date Will. Important events, for example, Marriage (or dissolution of marriage) will impact on your existing Will. Please contact us about the cost of a Will as it is probably less than you expect.

Estate Administration for Executors and Trustees can be a complex area and as an Executor and Trustee there are many obligations. We can assist you with these aswell.