Complex Property Matters
At Castrikum Adams Legal, we are experienced in, and understand the legal intricacies of living, owning and investing in property which falls into the category of the more complex property matters.
We can advise on and act in relation to disputes regarding complex property matters.
Company title is a form of ownership that pre-dates strata title.
In a company title building, the land and the building are owned by a company. That company issues classes of shares in relation to the units and car spaces and with those shares come certain rights such as the right to exclusive occupation of the unit or use of the car space, together with the non-exclusive right to use other parts of the building (such as the lifts, gardens and pool). Instead of purchasing an interest in real estate, the purchaser of company title property acquires the shares. Upon completion of the contract, the purchaser becomes a shareholder in the company and receives a share certificate for the purchased shares.
Company title buildings are run by a board of directors elected from the shareholders at the annual general meeting. The board of directors manage the company’s affairs in accordance with the Articles of Association, which vary from building to building. No two company title buildings are subject to the same Articles of Association.
This creates inconsistency for purchasers and legal advice is strongly recommended before buying into a company title scheme.
Unlike an individual land title that you take possession of when you purchase a house on its own block of land, when you buy a property that is part of a strata title, you not only own your unit or apartment, but you also share in the ownership of the common property and land the complex sits on. Here we’ll break down what exactly a strata title is, some of its pros and cons and what your responsibilities could include when buying into a strata-title property.
What is a strata title?
When you own a strata title property, you have individual ownership over your apartment or townhouse (called a ‘lot’), as well as shared ownership over the ‘common property’, such as the driveway, entrance foyer and garden. The common property is then managed by a legal entity commonly known as the owners corporation, body corporate, strata company or community corporation.
It is not only residential properties that can be part of a strata title – caravan parks, serviced apartments and retirement villages, along with commercial, retail and mixed-use premises can also exist under strata plans.
Community Title involves the horizontal subdivision of land with common property that usually includes access roads, recreational facilities and open spaces.
Increasingly, large developments comprise areas which are used by a large number of residents. This may include tennis courts, gymnasiums, swimming pools, bbq areas, and community centres. We advise on the rights and obligations of owners in such developments.
Community titles are similar to strata, however; in a community title scheme, each property usually has its own land allotments and clearly defined and surveyed boundaries.
Multiple occupancies began in the 1960s as people lived together on land in rural areas with limited money and the desire to live more communally. Often, they worked to transform degraded farms back to rainforest and bush as part of their philosophy to live close to the land and protect it.
Legal ownership has also developed over the years. A lot of multiple occupancies became companies with share ownership in the company. The simple way to understand multiple occupancies is more like strata title, where there is individual ownership of each house or apartment (and sometimes land) with shared ownership of the community resources (sometimes including some sort of enterprise).
Land use entitlements
A ‘land use entitlement’ means an entitlement to occupy land within New South Wales conferred through an ownership of shares in a company or an ownership of units in a unit trust scheme, or a combination of a shareholding or ownership of units together with a lease or licence.
Under Section 137 of the Duties Act 1997 the share allotment or unit issue by which a person acquires a land use entitlement is chargeable with duty at the general rate of duty set out in Section 32 on the dutiable value of the land use entitlement. ‘Dutiable value’ is defined in Section 21 of the Duties Act 1997.
A valuation of the unencumbered value of the land use entitlement may be required.
Understanding the complexity of easements and how they impact a property can be difficult. If you have an easement on your property, it means there is an exclusive right of another person or group, for example, the council, department of roads, or another private land owner to use that part of your property for a specific purpose.
Easements are put in place to run services like power or telecommunication, to put in roads, for air space, or a right of way.
If you wish to obtain an easement, you can attempt to do so through negotiation or by going to Court. Going to Court is the more complex of the pathways and seeking legal assistance is advisable.
Compensation for easements
On occasions, you can be asked to provide some of your property for an easement. As long as the request made is reasonable, it is advisable to accept the request.
In NSW under the Conveyancing Act, the Courts have the authority to grant an easement over your property if:
- There is a reasonable necessity for an easement so that the land can be effectively developed.
- The requested land that will become an easement will benefit the public.
- The person who owns the land can be adequately compensated for the burden of’ the easement.
- The developer has made every possible reasonable attempt to acquire the owner’s easement, and this process has not been successful.
Cases in NSW do exist where the Court has awarded the easement despite the land owner’s rejection to grant an easement. The Court can also award costs against the landowner if their actions were considered unreasonable and not in the public’s interest. It is unwise to unreasonably refuse to give an easement if adequate compensation is offered.
Compensation is given to those who are entitled to receive it. For landowners who are asked to agree to the provision of an easement on their property, they should have the easement valued so they can consider the value of the land and what adequate compensation would be.
Subdivision is the process that creates new lots of land or changes the size of the existing lot or the location of the property boundaries. This process creates a new title for each new lot that can then be registered with NSW Land Registry Services. There are many types of subdivision which include:
Torrens Title subdivision involves the creation of new allotments from an existing allotment. This may be achieved by:
- Boundary adjustments, which is the realignment of a lot boundary
- Site consolidations, which is the amalgamation of two or more lots into one lot
- The subdivision of an existing lot into two or more lots
Community Title subdivision involves the subdivision of land so that each resultant lot has a separate title but also shares a common piece of land such as a pool, BBQ area, driveway, garden, etc. The Community Plan associated with the subdivision may also outline a number of development guidelines for the subdivision design and construction.
Strata subdivision gives ownership to individual portions of a larger property and a share of common property such as gardens and driveways. Owners become members of the body corporate and may share responsibility for the whole property. Strata subdivision is most commonly used with dual occupancies, multiple dwelling development, apartment buildings and commercial and industrial buildings.
Stratum subdivision is the horizontal subdivision of sections of a building into separate titles. An example is the subdivision of a ground floor retail or commercial area from the above residential floors.
We partner with CA Construction Management in all our subdivision matters.
Get in touch with us for any enquiry you may have.
Property Law Disputes
Most of our wealth is tied up in property. Whether it is the family home, a business relationship for a development, joint land holding, or tenure in a lease, the emotion in a dispute concerning such wealth (and therefore risk) creates high levels of anxiety which needs an equally high level of certainty and effective strategy to manage a dispute arising from it.
Our team at Castrikum Adams Legal has experience in the following area:
- Disputes arising from the sale or purchase of property
- Separating joint interests in land
- Protecting your interest in land, including by lodging caveats and seeking injunctions
- Disputes with neighbours and concerning land boundaries
- Disputes about easements
- Lease dispute for both landlords and tenants (including commercial tenants)
- Disputes with Council and adjoining property owners concerning development applications, consents, and zoning
- Disputes with Strata Corporations or Strata Managers concerning strata issues
- Trespass infringements
- Adverse possession claims
Get in touch with us for any enquiry you may have.