The 3 key areas in property law:
Make time for due diligence if you are considering buying or selling real property. The objective of due diligence is to try to prevent any problems with the property from impacting on you, and to help you make the best decision that you can. Read our tip sheet on this page for what needs to be considered in undertaking due diligence on a property from the perspective of both a buyer and a seller of land.
Real property or realty includes land, things growing in (eg orchards, vineyards) or attached to land (eg buildings and satellite dishes), minerals, rights over land (eg easements) and profits in relation to land.
We can assist you with due diligence before you decide to sell or buy land and can also help you to solve the problems that sometimes come with owning real property, including claims or disputes involving adverse possession, removing and lodging caveats, avoiding or enforcing contracts for the sale of land, resolving neighbour disputes, strata title and survey-strata title disputes, local council regulations and planning and development (eg home business / home occupation applications) refusals.
Personal property includes all forms of property other than land, and is generally movable.
The Personal Property Securities Act 2009 (Cth) (PPSA) covers the law on security interests in personal property. A security interest is an interest in property that in substance secures payment of a debt or other obligation, despite the form of the transaction.
Most people know that a mortgage over a car or a charge over company property, such as plant and equipment, is a “security interest”. Few people know that in some cases a “security interest” may be created because of the form of a transaction.
For example, a seller may retain ownership of property under a retention of title clause in the sale agreement until the full purchase price has been paid, while the property is in the possession of the buyer. The buyer will have an interest is in ensuring that ownership of the property passes to them once they have paid for the property. The seller has an interest in protecting their ownership rights in relation to the property until the purchase price has been fully paid.
We can help to protect your ownership of and security in personal property.
Leases and licenses
A lease is fundamentally a contract, which is usually between a landlord (or lessor) and a tenant (or lessee). The ordinary principles of contract law apply to a lease. The principles of property law also apply to a lease, because a lease also relates to real estate. See Shevill v Builders Licensing Board  HCA 47.
A lease allocates the rights and obligations of landlord and the tenant and has two key elements. Firstly, the tenant must have exclusive possession of the leased premises to the exclusion of all others, including the landlord. Secondly, the lease must be for a definite period of time. If the deed or agreement to lease does not satisfy those two criteria it will not qualify as a lease, and will be a licence.
A licence is a contractual agreement that does not contain the benefits of a proprietary interest. A lease can be enforced against the entire world until it expires. Whereas a licence is not enforceable against third parties, and can be revoked by person who granted the licence. Revoking a licence, as with any contract, is subject to the contractual remedies available to the person who holds the license (or is entitled to the benefit of the contract).
Get trusted legal advice early in the process of entering into a lease, or when a dispute arises under a lease or a licence, to avoid costly legal headaches in the future.
KLD Legal has experience in
- Recovering unpaid rent and outgoings for commercial landlords.
- Advising commercial tenants and landlords on their rights and obligations under the lease.
- Applying to the Supreme Court for sale in lieu of partition under section 126 of the Property Law Act 1969 (WA). When one tenant in common owner wants to sell a property and the other does not, the owner who wants to sell can apply to the Supreme Court for an order for the sale of the property.
- Resolving disputes between owners of strata title properties and the strata company; the owners of 2 lot survey-strata title properties; joint venturers and other many other disputes in relation to land.
Disclaimer: This page contains general information only and is not intended to be a substitute for obtaining legal advice.