Conveyancing & Property Law
Although Conveyancing appears to be a routine legal process, it can be fraught with complications some human and some legal. For example the sourcing and obtaining approval of finance at a competitive rate of interest and terms.
Another example is where an Owner cannot move out in time and you as buyer have a removalist truck loaded and arriving at the house you have just bought but the owner’s Lawyer has just phoned your Lawyer to ask for more time to move out.
The risks are high when it comes to a property transaction and you find yourself unable to complete or otherwise in default as either buyer or seller. The legal consequences can be significant such as loss of deposit or a damages claim against the Owner. When you enter a binding contract to buy or sell property there are strict time deadlines and requirements to be met. With the assistance of a Lawyer, the process can become smoother and you will probably find the process relatively straightforward. Nevertheless, it is important to obtain early legal advice, read all the necessary property reports and carry out any additional due diligence (e.g. for a buyer obtaining and reading the Building Report, Pest Report and/ or Strata Report) to ensure your rights are protected and that there are no hidden surprises.
John Comino is an Accredited Property Specialist by the Law Society of New South Wales with over 48 years experience being well equipped to provide expert advice and assist you in a very wide range of conveyancing and property transactions.
Buying and selling property
If you are buying, the principle of caveat emptor (buyer beware) generally applies. This means you must do your research before contracts are exchanged so you know exactly what you are getting.
While the contract discloses certain information the Owner is required by Law to provide about the property you propose purchasing, there are matters that may not be obvious from the contract and/or a physical inspection of the property. Additional investigations, like Pest and Building Inspection Reports and Strata Reports, can help identify potential issues so you can make an informed decision before proceeding with your purchase. Likewise, there are a number of searches available that may disclose certain interests affecting the land that may adversely impact its use and enjoyment. Our role is to review and explain the contract terms and any cooling-off rights and guide you through the entire process step by step.
If you are selling, you have specific obligations as a vendor to comply with State Laws requiring disclosure of key matters concerning your property such as the title documents, Council Zoning, Water Board drainage services, Land tax liability/ Clearance. You will need a written contract for sale prepared with certain disclosure material attached before an Agent can even start marketing the property to potential buyers. We can prepare your contract, explain your rights and responsibilities as a vendor, help you with any special conditions to properly protect you, and liaise with your agent and, thereafter, with the buyer’s Lawyer.
We are PEXA certified and fully conversant with the electronic online system of conveyancing, which visually tracks the progress of each stage of your matter, facilitates the online lodgement of documents and provides fast access to sales funds.
Buying property in a strata scheme
Many off the plan purchases are for units in a strata scheme or mixed-use development (meaning residential and commercial in the same building). An important feature of strata living is that essentially an owner is a member of a small to large community.depending on the size of the Strata Building which can range from as little as 2-3 units to well over 100 units.
Property in a strata scheme is divided into lots and common property. The legal title of a lot in a strata scheme is held outright by the owner, who also has a shared interest in the common property with other owners in the same strata scheme. The common property may include stairways, lifts, corridors, community gardens, swimming pool and a gymnasium / wellness centre.
When you buy into a strata scheme you become part of the owners’ corporation which (through a committee) manages the common property and establishes an administrative fund for regular outgoings and maintenance, and a capital works fund for long-term or larger works. Your contribution to these funds, and the value of your vote at meetings, is determined by the proportion of the unit entitlement of your lot in relation to all the units combined. The functioning of the owner’s corporation plays an important role in the enjoyment and daily operations of the strata scheme you buy into.
As a member of the owners’ corporation, a lot owner is bound by By-Laws which set rules that regulate things like carrying out renovations, noise, parking, the keeping of animals and even where you hang your washing. By-Laws can be restrictive and must be carefully reviewed by prospective purchasers to ensure they are suitable and not unreasonably restrictive on the enjoyment of your unit.
Commercial and Retail Leasing
Many businesses need to occupy physical space to carry out their operations, whether this is a retail shop, commercial office, or a storage space to house excess stock. A commercial lease is a serious financial undertaking, and should be read carefully as the terms of a lease may restrict how you run your business. In our experience the phrase “forewarned is forearmed” is applicable as you are entering into a contract to pay rent and sometimes additional outgoings such as a share of rates and water/services usages. You should never sign a commercial lease without having it reviewed by your lawyer who can identify areas where the lease may be too restrictive or punitive and may be able to negotiate fairer terms with the lessor. You will want to ensure that:
- the premises is suitable for your business
- relevant approvals/licences are in place or can be obtained
- there are no planned road or footpath Works which may involve Council programs disrupting customer and trades access to your premises
- the commercial provisions (the term, rent and rent increases, renewal options, fit-out provisions, etc.) are suitable for your plans
- your legal rights are protected and there are provisions to address a range of contingencies or unforeseen events
Similarly, if you own commercial premises that you rent out, you will need a carefully drafted lease agreement with terms and conditions to ensure your investment is protected. If the premises is defined as “retail”, your arrangements will be regulated under the New South Wales Retail Leases Act which applies and requires you to meet specific disclosure obligations.
A well-drafted commercial lease with clear terms puts the parties on the same page at the beginning of the relationship and helps avoid leasing disputes down the track. We can assist with drafting, reviewing, and negotiating the terms of a proposed lease agreement as well as lease renewals, transfers, assignments, and sub-letting.
If you need assistance on these or other areas of Property Law, such as Land Subdivisions & Consolidations; dealing with Local Councils in Planning and Development Applications; Strata Disputes & Neighbour disputes, you can contact John Comino or George Caramanlis or call 02 9386 5888 for expert legal advice.