Property Ownership Issues

Covenants are binding, private agreements which regulate the use of your land. If you have a positive covenant registered on the title to your property, then you are legally bound to take some action to maintain certain aspects of the land. There are many types but a very common one is a positive covenant requiring that you properly maintain the stormwater system within your property.

Not only to council regulations control what you can do on your property, but your title might show various restrictions that are registered with the Land Registry Services. There are many types of these restrictions, but a common example is a restriction preventing you from building on part of your property. If you ignore the restriction, then you could find yourself sued by your neighbours or by the local council.

An easement is created by registration of a document at the Land Registry Services which gives legal rights to non-owners to use part of your land. There are many types of easements such as right of carriageway, right foot way, easement for batter, easement for sunlight, easement for drainage, easement for services, easement to carry out works on adjoining property, easement for access, easement for overhang, easement for support, etc. If someone claims to have a right to come onto your property you should ask them what they think is the basis of that right and tell them that they are not to come on until you get legal advice from your solicitor. Then you need to get that advice quickly because they may in fact have that right, and you will be acting illegally if you prevent them.

Disagreements between landowners regarding boundary issues are one of the most common reasons for neighbours to have a dispute. The actual boundaries to your property are defined by plans at the Land Registry Services. The only way to know for a fact where they are physically located on your land is by getting a surveyor to peg them out. Fences and retaining walls are never located exactly on your boundary. They will always be a little bit one side or the other. Replacing or repairing fences and retaining walls can be very expensive so before you escalate a dispute with your neighbour you should get advice from your solicitor so that you are arguing over facts rather than speculating (particularly if your neighbour is a “bush lawyer”).

Trees can really enhance your property, or they can be destructive, messy, and annoying. That also means that they can be a source of disputes between neighbours. These are now made more complex by the rights of local councils through their tree preservation orders. Just like fences and retaining walls, your rights regarding trees on or near your property can involve complex legal matters and therefore you should not get involved in an argument over them before you talk your solicitor so that you know your legal rights.

Home unit, townhouse and commercial strata schemes have by-laws, which are a set of rules that apply to owners, tenants and even visitors. They can relate to areas such as parking, the keeping of pets and whether smoking is permitted. They create rights and obligations and therefore can lead to disputes of all types. A common dispute is an argument as to whether you or the owners’ corporation is liable for the cost of maintenance or repairs. The starting point for solving such arguments is to determine what is yours and what is “common property”. Talk to your solicitor about it before you dig in and get into a dispute that you cannot win.

If you want to carry out a development on your property (such as construction of the building, extending an existing building, or alterations) then you need to have sound legal advice from your solicitor as to how to get the proper approvals. There are many cases where landowners have been told that works can be carried out without getting council approval, only for it to backfire on them later. Typically, if you propose some building works then you will need to assess whether approval must be sought by lodging a “development application” with the local council, or whether you can get approval using the “Complying Development Code”. The answer is not always straightforward.

Even though you may own a house, or be about to purchase a house, and have no intention of making any alterations, you may one day need to know where the stormwater from the roof, paths, driveway, paved areas, etc, go to. If you intend to build or extend then it is essential that you understand what your options are for disposing of stormwater of those areas. Ultimately the stormwater off your property needs to discharge into the curb, a natural watercourse, a drainage easement, stormwater tanks on your property, or perhaps absorption trenches. Most likely, before it reaches those destinations it will need to be held in a detention or retention system on your land designed by a hydraulic engineer. Before you purchase vacant land or a house you should discuss the stormwater issue with your solicitor as it will have a very real impact on the design and building cost.

Before you enter into a contract to purchase a property you need to know whether its sewer is connected to a system owned by a local authority, or whether it has a septic system, which may need to be registered and have certified regular servicing. You need to discuss with your solicitor the question of whether any improvements on the land are constructed over or adjacent to the sewer main. It also needs to be checked whether the pipes connecting the buildings to the sewer main pass through neighbouring properties, and if so whether appropriate easements exist. Pipes connecting terrace houses or semi-detached houses often have a single connection to the sewer main. If so, then sooner or later is likely to be a dispute between neighbours about it.

When you purchase a home unit, townhouse, or commercial strata unit, you are purchasing mainly air space. Most of the rest of the strata development belongs to the Owners’ Corporation and is referred to as “common property”. This is generally the gardens, the driveways, paths, stairwells, the roof and the roof space, the walls, the foyer, most of the plumbing, the fences, most of the electrical works, the fire safety equipment, the swimming pool, the lifts, the tennis courts, some air-conditioners, in fact you will virtually only own whatever is within the paint on your walls and ceiling and whatever is on your floor.

What belongs to you and what belongs to the owners’ corporation is often the first question that needs to be answered when you need to work out whether a repair or maintenance is your responsibility, or the responsibility of the owners’ corporation. Generally, the Owners Corporation is responsible for the maintenance and repair of the common property however this general rule can be varied by strata bylaws, or notations on the strata plan or the title to the common property. If something around your strata property needs to be fixed, then before you get into a row with the other owners you should get the advice of your solicitor.

You might have a relatively large block of land and wish to split it into a number of smaller blocks. You may wish to build a second dwelling on your land, sometimes called a dual occupancy. You may wish to build a granny flat on your land. If you are about to purchase land with these intentions, then you need to get professional advice on whether your plans are possible. You should talk to your solicitor about it, but most likely you will need specialist advice from a town planner or surveyor. You can always discuss the proposal with a town planner at your local council, but they will probably only give general advice, and it is recommended that you go to a chartered town planner or surveyor.

In the event that you wish to know for certain what you are allowed to do on your land then you need to purchase a planning certificate from your local council. In the past these were called zoning certificates. Every contract for sale of land must have a planning certificate attached to it. It will tell you whether the land is zoned residential, low-density, medium density, high-density, rural, industrial, environmental protection, etc. It will also tell you what you can use the land for without getting any approval at all, the uses for which you must get approvals, and the uses which can never be approved. Planning certificates include a lot of other information which you must consider if you are to be sure that you intended use is not illegal.

Always discuss the planning certificate with your solicitor before entering into a contract to purchase land. Planning Certificates tell you things such as whether it is flood prone, bushfire prone, reserved for acquisition, potentially contaminated land, land in a mine subsidence district, whether it contains threatened species, whether it is in a conservation area or contains heritage items, whether it has acid sulphate soils, whether it is subject to a tree preservation order, etc.

The local council, state government and the Federal government, and many of their various departments and authorities have the power to acquire part, or all, of your land from you, or take an interest in your land, such as an easement. These acquisitions are generally for the purpose of building infrastructure. For example, part of your land may be acquired for road widening, or an authority may take an interest to lay stormwater pipes under it, or even build an entire railway tunnel under it.

In many of these cases you would be entitled to “compensation on just terms” but if the infrastructure is underground and there is no disturbance to the surface of your land, then you will probably not receive any compensation. If you receive a notice of compulsory acquisition, then you should immediately get advice from your solicitor.

If, without the true owner’s consent, a person treats a parcel of land as if it is their own for a minimum of twelve years then they may be able to become the registered owner of the land. In those circumstances the owner whose name appears on the title at Land Registry Services will cease to be the owner. Therefore, if you own a parcel of land that you rarely visit, and you have not let it to someone else to use, then you could potentially lose it.

Therefore, if you have any unoccupied land then you should perhaps fence it, have locks on the gates, mow it, or regularly visit it and record that you have been doing some things on it that a normal owner could be expected to do. On the other hand, if you have been occupying some land that you do not own for more than twelve years and using it as your own to the exclusion of all others including the registered owner, then you may be able to claim title. If any of these issues come up, then immediately talk to an experienced property lawyer.

Land can become contaminated through many situations such as oil leaks from machinery, various chemicals leaking from containers, run-off from neighbouring property containing substances, asbestos buried or dumped on the land, pesticides used in past agricultural uses, previous use as a petrol station, chemical residues from sheep dips or cattle dips to name a few. The cost of decontamination or remediation can be enormous.

The legal implications for the future use of the land can be very significant. If there is any hint of a possibility of contamination of land you are purchasing, or land that you own, then you should talk to your solicitor about whether you need to get soil testing. If you sell contaminated land in the hope that it will become someone else’s problem, then you will almost certainly be wrong.

Trespass involves a person who intentionally and without the consent of the owner, enters the property. This legal consideration can be particularly relevant when dealing with difficult neighbours, or people who like to take a regular shortcut across your land or enter the land without your permission. If this is happening, then you should talk to your solicitor quickly and if it in the bud before it becomes a bigger problem.

Noises and disturbances can have a serious impact on the use and enjoyment of a property. If a complaint is about noise the police or local council may deal with the problem. If it persists, or if the complaint is against you and you feel it is unreasonable, then get legal advice from your solicitor before the whole issue escalates and you end up facing significant liability.

Land tax is payable on certain properties, including commercial properties, vacant land, and investment properties. There are various exemptions from land tax, such as the principal place of residence exemption, rural land, land purchased with the intention of making it your home within certain time limits, etc. In any case, if you fail to pay land tax on land that has no applicable exemption then the liability will not go away. It will accumulate and there may be harsh financial penalties that will catch up with you eventually. Therefore, if you own more than one property and you have any question as to whether you might be liable for land tax, then you should talk about it with your solicitor.

A caveat is document that gets registered on the title of land at the Land Registry Services. If a caveat is registered on the title to your land then you will not be able to sell it, transfer it, subdivided, register a lease on the title, mortgage it, create an easement over it or register any other transaction without first getting the consent of the person who registered the caveat.

A caveat can only be registered on the title of your property if you have granted a “caveatable interest” in writing. Therefore, it is not possible to register a caveat on the title of someone’s property just because they owe you money. They must have signed a document granting a “charge” in your favour. In any case, if you ever receive a notice that a caveat has been registered on the title to your land you should see your solicitor immediately.