Many Australians dream of owning property and the safety, success, and security that comes alongside it. If you are looking to purchase property, or are already a property owner, having a basic understanding of Australian property law is important to ensure all your transactions are legal.
What is property law in Australia?
In Australia, property law governs the ownership, use, transfer, and disposition of all property, including land, buildings, or other assets. In essence, it shapes the use and development of property and can impact a broad range of people and businesses.
There are a few primary sources of law for property in Australia including common law, the Torrens system, and various statutes including the Real Property Act, Conveyancing Act, and Transfer of Land Act. The Torrens system is the most commonly used and is based on the principle of title by registration, meaning land ownership is determined by registering the owner’s name on the land title register.
Some of the topics property law covers include;
- Ownership and title: rules governing the acquisition, transfer, and disposal of property and ownership status.
- Leases and tenancies: the obligations and rights of landlords and tenants for rental properties in Australia.
- Easements and covenants: the obligations and rights of property owners regarding easements (the right to use another’s land) and covenants (promises made about land).
- Mortgages and security interests: rules that govern the creation, enforcement, and discharge of mortgages.
- Planning and zoning: rules that govern the development of land, the establishment of planning controls, and the approval process for development.
- Strata and community title: rules that govern the ownership and management of strata title and community title properties.
Property law governs the ownership, use, transfer, and disposition of all property. Photo by Scott Graham on Unsplash.
Examples of types of property
Australia has two main property types; real property and personal property, and each has its own specific laws. Understanding the difference is important when managing property transactions.
- Real property: covers the following types of property; residential, commercial, industrial, raw land, or special use.
- Residential property: property a person can reside in such as a freestanding house, a townhouse, an apartment, or a unit is considered residential property.
- Commercial property: property used for business such as office buildings, hotels, restaurants, and physical retail stores is considered commercial property.
- Industrial property: property used for manufacturing, production, distribution, research, or development is considered industrial property.
- Raw land: any undeveloped, vacant, or agricultural land is considered raw land.
- Special use: any property used for public spaces such as schools, cemeteries, churches, or libraries is considered special use.
- Personal property: while real property refers to real estate or land, personal property is either a tangible asset such as artwork or jewellery, or an intangible asset such as a bank account, deeds, or intellectual property like patents or copyrights.
Key principals of property law in Australia
Understanding a few key principles of Australian property law can provide you with a foundation level of knowledge – enough to converse with a professional property lawyer about your specific requirements.
Ownership and possession
The difference between ownership and possession is important. Ownership means you have the legal title to something, while possession means you have physical control over it. In property, you can own a house, but leave it can be in the possession of a tenant.
Bundle of rights
A bundle of rights is a set of legal privileges afforded to a real estate buyer. It includes the right of possession, control, exclusion, enjoyment, and disposition.
Equity in property law
Equity is a legal principle that ensures fairness and justice. In the context of property, equity helps resolve disputes and protects certain interests that common law doesn’t fully recognise. If you have financially contributed to a property yet your name is not on the property title for example, equity can help ensure you receive a fair share in case of estrangement, separation, or divorce.
How can property lawyers help businesses?
Property lawyers who have completed the requisite programs, like a property law course, can provide valuable assistance to Australian businesses in several ways to ensure a business is making informed decisions and protecting its interests. Some topics property lawyers can help businesses with include;
- Property transactions: to help a business buy, sell, lease, or rent commercial properties. Property lawyers can also draft contracts, negotiate, and ensure compliance with relevant laws and regulations.
- Property development: to help a business that works on property development projects by obtaining planning and building approvals, complying with environmental regulations, negotiating with builders and contractors, and dealing with disputes during development.
- Property management: to help a business by providing advice on legal issues relating to property management such as landlord and tenant disputes, leases, and compliance with tenancy laws.
- Property financing: to help a business with property financing matters such as drafting loan agreements, negotiating, and dealing with foreclosure proceedings.