Property Law & Strata

The new measures which have an impact irrespective of whether you are buying property or selling property will be in place for sales contracts entered into on or after 1 July 2016 and will affect any sales of Australian real estate assets where the market value is equal to or greater than $2 million.

If you act for the purchaser additional steps to consider will include:

1.Enquiring whether the vendor has a clearance certificate.

2.If the vendor does not have a clearance certificate then 10 per cent of the sale price will need to be remitted to the ATO before or on settlement for the capital gains tax withholding (WHT). [...]  READ MORE →

What is an Off the Plan sale?

In simple terms, this is where a developer wishes to sell a portion of land (usually called a ‘lot’) to a purchaser before the land has been sub-divided.

A typical example is where a developer takes a large piece of land that they want to build houses or units on and sells those dwellings before the dwellings are fully built and before the pieces of land are sub-divided into individual lots.

Sunset Dates

Normally, an off the plan contract has a sunset date by which the developer must register the required plan of sub-division failing which either party has the right to end the contract (and the purchaser receives a refund of their deposit). [...]  READ MORE →

This Ruling refers to Section 10AA – Land Tax Management Act 1956. This section exempts land that is being used for primary production and explains the essential characteristics of the land classified as primary producing land. For land to be exempt, the land must be classified as “rural land” and the primary purpose of the land must be primary production.

The land must lie in a “rural residential”, “non-urban” area, but if this is not satisfied the land must satisfy other commercial tests which essentially include the land’s ability to make a profit on a continuous basis. This Ruling clarifies that primary production uses of all and individual parcels of land and unused and different factors determine this, which includes the area of land to which the use extends and generation of profit and capital investment. The mere intention of using land for primary production is not enough, however, undertaking preparatory work may allow for the land to satisfy the Primary Production Land exemption. [...]  READ MORE →

In the recent English case of Mortgage Business plc v O’Shaughnessy [2014] UKSC 52, a prospective purchaser under a contract for sale of land promised the vendor that the vendor could remain in possession of the property after completion. There was no mention in the contract about a lease back arrangement. The purchaser obtained finance to purchase the land but did not inform the mortgagee about its arrangement with the vendor. The Court held that the mortgagee was not bound by the lease between the purchaser (as lessor) and vendor (as lessee) for the following two reasons: [...]  READ MORE →

The proposed changes to swimming pol legislation were delayed from 29 April 2014 to 29 April 2015 – and that date is nearly upon us.

The legislation was put back in response to Council feedback indicating high inspection failure rates – about 95% on first inspection.

Additionally there were issues with availability of qualified inspectors to meet demand, and issues with availability of contractors to undertake work.

It is likely these problems will still exist as at 29 April 2015.

There are practical implications for vendors, landlords and agents: [...]  READ MORE →

The Risky Business of Transferring Assets to Avoid Creditors.

Under section 37A of the Conveyancing Act 1919 any transfer of property with the intention to defraud creditors can be retrieved by the courts. The section does not apply when a transaction is made in good faith and does not have the intention to defraud creditors at the time of transfer. An example would be a transfer under a contract for sale of a property.

The High Court decision of Marcolongo v Chen [2011] provides direction for those seeking to challenge a transfer under section 37A.  Mr Chen acted in a representative capacity for the company that owned the property. Mr Chen pushed the company to transfer the property to himself to avoid Mrs Marcolongo’s claim. [...]  READ MORE →

Foote v Acceler8 Technologies Pty Ltd

Supreme Court of New South Wales

A new tenant, Foote, entered into a new lease agreement with the owner to open a pharmaceutical store.

The agreement included a special condition stating that the necessary approvals must be obtained by a certain date. A separate special condition allowed Foote to terminate the agreement in the event that the approvals were not granted.

The necessary approvals were not granted by the specified date and the owner and an existing tenant argued that there was therefore no enforceable contract. [...]  READ MORE →