Property & Conveyancing Law
Trespass as a tort can be committed against property and goods. However, in contrast, the tort of conversion can only be applied to goods. Conversion involves a voluntary act, causing interference against another person’s goods. Furthermore, conversion can also be committed even when a person has no intention to commit the tort.
Conversion – unlike trespass – does not require a direct link to be established for a person to commit the tort, as an indirect link is considered sufficient for a finding of a breach under certain circumstances.
The final element of conversion is if the person who is committing the tort, purports to deal with the goods that belong to another party for their benefit which may involve the selling, giving away, or lending of goods in which the tortfeasor has no legal title over.
A future interest in land is any right to possession and enjoyment of a land which exists at a future date – even if title to the land is immediately vested with the person. However, it is important to note, that a future interest is not applicable to a freehold estate because in most cases, there is no right to possession. Nonetheless, a future interest can be conferred to a person who has title, and the expectation that the land will become a freehold estate.
Finally, all freehold estates can be held in possession, reversions or remainders.
Sometimes people will find things in public spaces such as jewellery or a mobile phone, the question is then: how does the law treat such property? Well firstly, if you have control of a thing, it’s yours. So for instance, going to work and leaving your house unattended, does not mean that you have lost possession under the law.
However, the rule in regards to control is that possession can be lost if someone loses a thing, or if another person takes possession of the thing. So it’s probably a good rule of thumb to always keep your possessions close to you when in public, or you might lose possession of your precious valuables.
- Easements created by express grants: at common law, an easement can be created under a deed, and the right is usually conferred at the time of the creation of an estate in land. Additionally, a vendor can bestow a right in favour of the purchaser by an express grant.
Easements which are implied: if there is a failure to enter into an express easement, but an easement is necessary, then an implied easement can arise. Implied easements are generally associated with land which has been subdivided, and has been sold or leased without an express easement. Implied easements can be created in the following ways:
· through general words imported into a conveyance;
· easements of necessity;
· continuous and apparent easements (the rule in Wheeldon v Burrows);
· easements of common intention; and
· implication derived from description of the land.
In order for a covenant to be enforceable at common law, the ‘touch and concern’ test is applied to ascertain whether the covenant is for the benefit of the land? Or was the covenant created by the covenantee as a mere personal interest? If the latter question is answered in the affirmative, the covenant will generally be considered invalid.
A practical example of a covenant, is when a vendor agrees to sell a parcel of land which is attached to their land, but on the proviso that the person purchasing the land, does not build a structure that is greater than two storeys high because it might interrupt the vendor’s view.
In the event that a mortgagee chooses foreclosure, both a common law and Torrens mortgagee must obtain a court order before initiating an action of foreclosure. However, the effect of receiving an order from the courts has different results, depending on the type of mortgage.
If a mortgagee at common law, obtains an order for final foreclosure, it will then result in the destruction of the equity of redemption, and gives the mortgagee ownership of the fee simple estate. On the other hand, foreclosure of a Torrens mortgage, will result in the legal fee simple estate to be transferred from the mortgagor to the mortgagee, via the cancellation of the mortgagor’s certificate of title, and instead, a new certificate will be issued to the mortgagee.
Additionally, if a common law or Torrens mortgagee seeks powers of sale, the action must also be authorised by a court order, and the results will also differ between the two mortgages.
Planning and zoning regulation establishes how land can be used and how such uses can be changed.
State and Territory governments identify long-term goals and objectives such as:
- promoting the orderly and economic use and development of land;
- preserving the environment;
- providing and coordinating community services and facilities.
Local council and regional plans are intended to be consistent with the higher level goals and objectives of the State and Territory plans.
Within a local development plan, each council area is divided into "zones" and businesses are generally grouped together which share similar characteristics, whilst keeping separate entities that may have features considered incompatible to a specific zone.
Zones are typically categorised as residential, commercial and industrial, with each zone defined by the criteria that sets out in detail of the acceptable, as well as the unacceptable uses for the zone.
A heritage certificate can be applied for at Heritage Certificate Online; visit https://www.landata.vic.gov.au/tpc/tpc_from_heritage.aspx
There is a certain amount of information essential to have before applying, including address and title particulars. A amount of $25 is charged and, in most instances, the certificate can be downloaded immediately.
It is also possible to apply directly to Heritage Victoria. The application form can be downloaded at http://www.dpcd.vic.gov.au/heritage/victorian-heritage-register/registration. This process can be comparatively lengthy and usually takes 10 business days, plus postage time. If more than one property is being certified, a separate form is required and an individual fee for each property is charged.
An application can also be made on a standard Property Inquiry Application, available from council offices.
It is advisable to keep copies of all documents submitted, and also to consult your lawyer for professional advice.
The Residential Tenancies List of VCAT is responsible for managing and hearing residential tenancy disputes.
Landlords, tenants, share house owners and residents, caravan park owners, and caravan owners and residents may apply to VCAT.
Applications need to be in writing and must be lodged with the Principal Registrar in person or by electronic transmission. Alternatively, if a person lives more than 40 kilometres from the GPO Melbourne, they may lodge an application with the Registrar of a Magistrates' Court. You can lodge an application electronically by visiting VCAT's website at http://www.vcat.vic.gov.au. A list of fees can also be found on the website.
VCAT will hear the matter and normally inquiries will be made as to whether the parties have reached, or can reach, a settlement enabling orders to be made by consent. If a settlement cannot be reached, the parties will give evidence and may be cross-examined.
Once the evidence has been given, VCAT will consider the evidence and announce its decision and the reasons supporting this decision. A written order will be given or sent to the parties as soon as possible following the hearing.
Legislation sets out the orders VCAT can make in relation to residential tenancy disputes. Such orders may include restraining an action in breach of a tenancy agreement or requiring an action in the performance of a tenancy agreement.
If you require further information regarding residential tenancy disputes and the role of VCAT, you should contact your solicitor.
My husband and I are selling our family home and looking to purchase a smaller home at $455,000. The contract will be finalised soon, and we believed that we would not be eligible for a stamp duty concession as the property value was over $330,000. One of our friends has told us that we should be receiving a stamp duty exemption because we are senior citizens - is this true?
You will be eligible to receive a partial exemption from stamp duty if you:
- hold a Health Care Card or a Pensioner Concession Card issued by Centrelink or a Repatriation Health Card or Pensioner Concession Card issued by the Department of Veteran Affairs;
- are paying market value for the property;
- have not received the seniors' stamp duty concession on a previous property; and
Intend to live in the property as your principal place of residence.
To ensure that you do not miss out on a potential stamp duty concession seek legal advice on the requirements for the concession and whether you qualify.
Several factors stand out in the proposed future direction of Victoria's urban planning; these factors include land supply and housing affordability, opportunities for employment, transport and infrastructure provision, environment and risk. By Safeguarding the natural environment, providing safe connections betwewen places, and using resources effectively, good urban designs can offer environmental, social and economic benefits to the community.
For more information on Urban Design visit, http://www.dpcd.vic.gov.au/planning/urbandesign/what-is-urban-design
To understand how Melbourne will be impacted by the new planning initiatives, visit http://www.dpcd.vic.gov.au/planning/plansandpolicies/planningformelbourne/
Another aspect of the plan is the fast-tracking of Precinct Structure Plans (PSPs). These are master plans for whole communities, usually between 10,000 to 30,000 people. PSP's plan roads, shopping centres, schools, parks, housing, employment and the connections to transport and focus on sustainability, access and community engagement.
PSP's are created to set the blueprint for development and investment that will occur over many years. They provide an up-to-date approach to address current global issues such as adapting to climate change, reducing carbon emissions, rising living costs and pressures of increasing travel distances as our cities grow. PSP's provide a balance between meeting complex policy requirements and providing affordable development.
An easement is a section of land registered on your property title, which gives someone the right to use the land for a specific purpose even though they are not the land owner. An example is a shared driveway. There are also certain statutory easements which are not registered on your title, such as power or telephone lines, or drainage easements.
If you wish to build over a statutory easement, you will need to get consent from your local council. For other easements, you will need to get consent from whoever the easement is vested in.
When selling a property, it is important that you disclose any easements on the contract documents. If in the process of buying a property, make sure you do a title search before the exchange of contracts so you can be sure that the seller has properly disclosed any easements that may be on the title.
The important thing about easements is to be aware of them, and know the terms of any which affect your property, so contact your lawyer to be sure.
A valuable resource is Consumer Affairs Victoria who suggest knowing what you can afford, budgeting, researching and becoming informed about the property market, reading contracts thoroughly and seeking legal advice, and considering sustainable options. For more details, visit www.consumer.vic.gov.au
According to Consumer Affairs Victoria, home buyers planning to construct their first home need to shop around, choose a registered builder, do not sign the contract until you are ready, seek legal advice, use independent experts and surveyors, and act immediately if things go wrong. For more information, visit www.consumer.vic.gov.au/Building
A person must lodge a caveat to protect certain forms of interest in land. This means that if anyone performs a search of the register for a particular portion of land, it will disclose if there is a caveat (and the details of that claim).
The absence of a caveat is usually a sign that things should be pretty safe, assuming that you are not aware of other claims against the property that might permit the lodgement of a caveat. If a titles search discloses a caveat, a solicitor can help you understand what the caveat is claiming and how to proceed in any future dealings with the land.
It is unfortunately not uncommon for people to find the home they want, have an offer accepted, and then before contracts are actually exchanged, another buyer sneaks in ahead of them.
Exchange of contracts is when a formal contract comes into existence, and both the buyer and the seller are legally committed to the deal.
Gazumping, as this practice is known, is more prevalent in a buoyant market, but can happen in any market. Apart from the obvious disappointment, a buyer can also incur additional wasted expenses, such as loan and valuation fees, survey costs, building and pest report fees and legal costs. Are there any ways buyers can avoid this possibility?
Some years ago the parliament introduced a provision which allowed for a three working day cooling-off period from exchange of contracts, the aim being that purchasers would have an opportunity to finalise finance and get building and pest reports, while knowing that they had a binding contract (unless they chose to rescind it during the five day period). If a buyer elects to rescind, they lose a quarter of one percent of the purchase price.
The law also provided that the cooling off period did not apply if a solicitor independent of the seller explained to the buyers that there would be no cooling off period, and gave a certificate to that effect. This is known as a 66W Certificate, after the section of the Act.
Most sellers want no cooling off, so that they can be certain that the sale will proceed, and that they can safely exchange contracts on any new property they are buying. The current situation is, therefore, that in most sales there will be no cooling off period, as sellers will usually require a 66W certificate.
How, then, can a buyer reduce the risk of being gazumped?
Step 1 is to get a loan pre-approval if you can. Your lender will indicate that it is prepared to lend you up to a certain amount, but of course this will still be subject to a valuation.
Step 2 is to make sure your solicitor is aware of you and your plans. Your solicitor will be able to help steer you through the process, which for most people is an infrequent occurrence.
Basically, the better prepared you are, the quicker the process should be completed, and the risk of being gazumped will thereby be reduced.
One common step is to ask the seller for a guarantee that they will not sell to anyone else without giving you a first opportunity, but this will not protect you against a price hike.
There can be practical problems; the seller may not want to go through the complication of an option, and usually extra time and expense will be involved. However, particularly in a quiet market an option can allow the time that buyers may need to sell their own home, whilst satisfying a seller that they are serious.
With commercial property it is not uncommon to take an option to purchase. An option gives the buyer the right to acquire a property at an agreed price within an agreed period, but the buyer can choose not to buy. A fee is payable, which may be nominal, $10 or so, or may be substantial, thousands or more. If the buyer does not proceed, the seller keeps the option fee.
