Property Law
Property law concerns the rules governing the rights of ownership and interests primarily in real estate. More often, it involves the sale, purchase and transfer of land; the creation and varying of easements and covenants and other interests in land; developing and registering plans of subdivisions; matters concerning strata title and bodies corporate; and disputes regarding ownership, boundaries or access.
Subdivision
Subdivision is the act of dividing land into pieces that are easier to develop or sell. Subdividing land can be a complex process as there are vast requirements that you need to consider before commencing the subdivision process.
Before commencing the subdivision process, you should consider the following:
- Is there any state legislation or local planning policies that could impact on your proposal for subdivision?
- Can the proposed new lots of land be appropriately serviced by utilities and other infrastructure?
- Can the land being subdivided sustain the increased use or development following the subdivision?
- In what ways, if any, does the subdivision affect existing buildings?
You will need to obtain a Planning Permit to subdivide land. This is a complex procedure essentially governed by the Planning and Environment Act and Subdivision Act. Councils are responsible for considering and issued planning permits for subdivision. When a permit is issued it will contain a number of conditions which must be complied with. Some of these require the provision of infrastructure or levies.
It is important to review these conditions to ensure they are fair, equitable and not too onerous. Kings Lawyers regularly has permit conditions altered or removed through VCAT.
You will need to lodge an application to Land Victoria under Section 22 of the Subdivision Act 1988 if you want to subdivide your property. You will also need to apply for a planning permit from the local council for any developments you intend to undertake during and after the subdivision.
Restrictive covenants
Restrictive covenants are private agreements between land owners that restrict how the land may be used and developed.
Restrictive covenants are most commonly applied when an owner subdivides land for sale and wants to retain some restrictions on the use and development of the lots, for example:
- to prohibit the use of the land for certain activities
- to restrict construction on the land to only one dwelling
- to require certain materials from which a dwelling on the land must be constructed
Covenants can be varied or removed through a number of processes. In certain circumstances Councils can authorize a change. In most cases it usually requires an order from the Supreme Court of Victoria.
Kings Lawyers have successfully ended and varied covenants. Often Kings Lawyers provides advice on the terms affecting an existing covenant.
The Supreme Court is responsible for enforcing restrictive covenants.
Owners corporations
When a plan of subdivision containing common property is registered at Land Use Victoria, an owners corporation is automatically created. The Owners Corporations Act 2006, sets out the duties and powers of owners corporations.
An owners corporation manages the common property of residential, commercial, retail, industrial or mixed-use buildings.
You are likely to be a member of an owners corporation if you own an apartment or a unit. Inevitably disputes arise within a complex. VCAT deals with these types of disputes. Kings Lawyers have negotiated settlements in this area.
Easements
An easement is a type of encumbrance (a formal obligation attached to the land) which is identified on the copy of title. An easement gives rights to other parties to use the land, provide for services or access on, under or above the surface of the land.
Common examples of an easement include utilities or services such as electricity, water, drainage or sewerage, and allow the providers of these services to enter the land identified by the easement, to maintain or repair these services.
A right of carriageway, such as a road, driveway or track that enables someone to pass through a property is another example of an easement.
It is important to identify easements before developing land as any development that interferes with the rights of another party to use the land may, for example, be removed without compensation.
New easements can be created and existing easements can be varied. Kings Lawyers regularly advises and negotiates changes to easements.
Boundary disputes
In Victoria, The Fences Act provides rules regarding who pays for a dividing fence, the type of fence that may be built, notices that neighbours need to provide one another and how to resolve disputes regarding fencing works.
If you and your neighbour cannot resolve your fencing dispute, you can refer to The Fences Act which provides a dispute resolution process. Either neighbour may give a boundary survey notice, which sets out an intention to have the common boundary defined by a licensed surveyor unless its location can be agreed. There is no prescribed notice.
If you engage a licensed surveyor, you are responsible for advising your neighbour the outcome of the survey and generally, both owners must contribute to the costs of the survey.
Kings Lawyers can provide comprehensive advice and guidance on all aspects of property law and development.
If you need any assistance, contact us at [email protected] or call 03 5221 7077 for a no-obligation discussion and for expert legal advice.