Property Law

The Australian Property Law consists of a complex system that governs and regulates the rights and interests on property related matters. Our property lawyers have 130 years combined experience and continuously develop their knowledge, so as to offer a tactical and creative approach and an uncompromising commitment to excellence, to achieve the best outcome for you.

It is our mission to make sure you feel safe and secure during the exciting, yet daunting process of buying or selling a residential or commercial property with the guidance of our legal expertise.

We provide a comprehensive range of property-related legal services for first-home buyers, property developers, mortgage brokers and real estate agents including:

  • Adverse Possession Claims
  • Creating Easement on Land
  • Covenants and Restrictions on Land
  • Agreements with Authorities
  • Land Compensation and Compulsory Acquisition of Land claims

Our property lawyers can assist you with any legal inquiries relating to property law, call 03 5941 1622 for more information.

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Frequently Asked Questions

Consent of the Landlord to the Transfer of Lease

During a sale of a business a Landlord will often be approached to consent to the transfer of the lease from the current business owner to the purchaser of the business.

It is important that the Landlord understands their rights and obligations in relation to any proposed transfer, and seeks legal advice throughout the process. The costs of that advice can be on-charged to the current tenant under both a Retail and a Commercial Lease.

Where the lease is a Retail Lease, there are limited circumstances under which the Landlord can withhold consent to a proposed transfer. These relate to the financial suitability of the proposed tenant or the failure of the proposed tenant to agree to reasonable assignment provisions. However, as a Landlord of a retail lease, care must be taken to deal with any request for a transfer of lease in a timely manner, as there exists deeming provisions where no response has been received within a specified timeframe. Further, care must be taken to review the proposed transfer as against any current breaches of the leasing arrangements.

Where the lease is a commercial lease, the requirements of any proposed transfer will be set out within that document. Care must be taken to ensure that these provisions are followed and satisfied, in order to ensure the timely transfer of any lease.

Can I Develop? - Determining the Planning Restrictions

Whether the property you own is suitable to be developed will depend on the nature of the planning scheme in which the property is located.

Each local government has a Planning Scheme that sets limits on the type of use and development that can occur on properties, and the consequences of undertaking any of those uses of developments.

For example, there are restrictions on the ability to subdivide land within a Green Wedge Zone, and there are additional development costs called contributions that are applicable to subdivisions of both a residential and industrial nature.

It is important to seek legal advice prior to making any development applications, to ensure that all potential barriers are identified and addressed in any application, and to ensure that any potential costs are forecast within the development plan and budget.”

What is electronic or e-Conveyancing?

With the advancement of technology each aspect of the conveyancing process, including VOI > Searches/Certificates > Contract > Signing> Exchange > Settlement, can all now be completed electronically.  You are engaging in electronic or e-Conveyancing when you complete any part of the process electronically.

Duffy & Simon are industry leaders in the introduction and implementation of all aspect of e-Conveyancing.  We offer a range of innovative technology that enables our clients to transact in the most efficient and effective means available, creating a higher level of confidence and security at the same time as simplifying the process for our clients.

With reduced paperwork and postage the potential for delays and errors is dramatically reduced.  Settlement and lodgement of an electronic conveyance occurs simultaneously potentially reducing the settlement timeframe from months or weeks to just days.  Funds are transferred electronically without the need for costly bank cheques and clearance times and greatly reduces the potential for fraud.

Land Acquisition: Your Land, Your Rights

Whether you are approached by an Authority, or whether your land is subject to a planning acquisition overlay, it is important to seek advice early when your land is being or is proposed to be compulsorily acquired.

Typically, an authority will seek to obtain information from a landholder which will allow them to formulate their offer of compensation. However, it is not always clear to the land owner the purpose to which the information being sought will be used or relied on.  As such, it is important that Duffy & Simon assist you from the commencement of the process in identifying clearly the manner in which the land is or is proposed to be used, and ensuring the accuracy of the information that is provided to the authority.

There are a number of factors that must be assessed when determining compensation that flows from a compulsory acquisition. These include:

  1. Losses associated with a change in the market value of the land;
  2. Any special value which is incidental to the ownership or occupation of that land;
  3. Any decrease in market value of any interest in the land attributable to severance of the land, or a portion of that land;
  4. Financial losses suffered as a natural, direct and reasonable consequence of the acquisition;
  5. Costs associated with obtaining legal advice and valuations incurred as a result of the acquisition; and
  6. An award known as “solatium”, being not more that 10% of the market value of the acquired land, representing intangible losses such as loss of a property that has been in the possession of the owner for some time, and loss of the family home.

Duffy & Simon has local knowledge of land conditions and land uses, and together with its team of expert consultant loss assessors are best placed to assist you in understanding the process, and obtaining a truly fair and just result.