Property & Conveyancing Lawyers, Melbourne

Property and conveyancing at Hanlons

A property transaction is, for most clients, the most valuable contract they will sign in any given decade. The conveyancing process — the preparation, exchange and settlement of the transfer — is only one part of that exercise. The more consequential work happens before signing: the review of the contract and section 32 statement, the identification of encumbrances and risks on title, the structuring of the acquisition in the right entity, and the negotiation of special conditions where the standard contract does not accommodate the client's position.

Our practice covers residential, commercial and investment property matters across Victoria. We act on freehold and leasehold transactions, on subdivisions and development sales, on property held through companies, unit trusts and self-managed superannuation funds, and on the property aspects of larger commercial and succession matters being handled by the firm.

Buying property

The contract of sale and the section 32 vendor statement are not a formality. Purchasers should obtain legal advice before signing, not after — in Victoria the standard cooling-off period under section 31 of the Sale of Land Act 1962 (Vic) is limited (three clear business days, with several statutory exclusions, including private sales to a real estate agent and all auction purchases), and a purchaser who exercises it forfeits a penalty.

• Contract review — reviewing the contract of sale, identifying onerous special conditions, and negotiating amendments before signing.
• Section 32 / vendor statement — examining the disclosures required by section 32 of the Sale of Land Act 1962 (Vic): planning and zoning, rates and outgoings, easements and restrictive covenants, building permits and owners-corporation matters. Deficient disclosure may give the purchaser a right to rescind under section 32K.
• Auction purchases — advising and reviewing documentation in advance, given that there is no cooling-off period on an auction purchase and contracts are signed at the fall of the hammer.
• Off-the-plan purchases — reviewing the disclosure plan, sunset and variation provisions, owners-corporation rules, and the developer's rights to amend the plan; advising on the section 9AC and 9AE Sale of Land Act protections and on stamp-duty concessions.
• Property due diligence — title and plan searches, planning certificates, building permit history, owners-corporation records, and where appropriate environmental and structural enquiries.

Selling property

On the sale side, the section 32 vendor statement is the vendor's principal disclosure obligation, and the document on which most disputes hinge. We prepare contracts and section 32 statements for vendors, advise on the disclosure of known defects, and address the special issues that arise on deceased-estate sales, sales by mortgagees and sales between related parties.

• Contract preparation — settling the contract and any special conditions, and coordinating with the selling agent to ensure the contract signed reflects the contract as marketed.
• Vendor disclosure — advising on the matters that must be disclosed under section 32 and at general law, and on the consequences of non-disclosure for both rescission and damages.
• Settlement issues — addressing requisitions, attending to title adjustments, managing changes in occupation prior to settlement, and responding to purchaser requests for extension or for variation of the contract.
• Pre-sale legal advice — identifying issues that should be resolved before the property is listed: caveats, mortgages, leases, easements created or implied, and unregistered interests.

Conveyancing and settlement

Substantially all property settlements in Victoria are now conducted electronically on PEXA under the Electronic Conveyancing National Law (Victoria) and the Verification of Identity rules administered by ARNECC. We are subscribed and act in the PEXA workspace for both purchasers and vendors, with appropriate verification of identity and client authorisation processes for each matter.

• Electronic conveyancing — PEXA workspace establishment, document preparation, signing, financial settlement, and lodgement of the transfer with Land Use Victoria.
• Settlement process — coordinating settlement with the client's bank, discharging mortgages, paying out caveats, attending to duty, foreign-purchaser surcharges and absentee-owner considerations.
• Transfer documentation — drafting and reviewing the transfer of land, notice of acquisition, owners-corporation notices, and any ancillary statutory declarations.
• Lender and agent liaison — managing the practical coordination between the incoming and outgoing lenders, the real estate agent and the parties so that settlement occurs on the contract date, without penalty interest.

Commercial property

Commercial property work raises a different set of issues to residential conveyancing. The contract is more heavily negotiated, due diligence is wider in scope, and the choice of acquiring entity has tax and asset-protection consequences that should be considered before the contract is signed. We advise on:

• Commercial acquisitions and disposals — office, retail and mixed-use property; GST and the going-concern provisions; assignment of existing leases on completion.
• Industrial property — environmental and contamination considerations, planning overlays and the treatment of plant and equipment fixed to the land.
• Mixed-use developments — owners-corporation structures, shared services, signage and access easements.
• Property holding structures — advising on whether to acquire in a personal name, a company, a unit or discretionary trust, or a self-managed superannuation fund (subject to the borrowing constraints in section 67A of the SIS Act).

Leasing matters

The lease is the second-largest commitment most businesses make after their employment costs. We act for landlords and tenants on new leases, renewals, assignments and disputes under the Retail Leases Act 2003 (Vic) and at common law where the Act does not apply.

• Retail leases — advising on the application of the Retail Leases Act 2003 (Vic), disclosure obligations, prohibited recoveries and Small Business Commission mediation.
• Commercial leases — drafting and reviewing leases for office, industrial and mixed-use premises, including outgoings, options, make-good and assignment provisions.
• Lease assignments — assignments on the sale of a business, landlord consent processes, and the continuing liability of the outgoing tenant and any guarantors.
• Renewals and disputes — exercise of options to renew, market-rent reviews, make-good claims, and disputes over outgoings, repair obligations and termination.

Property issues and disputes

Many property disputes are not about price but about title, boundaries, the meaning of a covenant, or the rights of one co-owner against another. We advise on:

• Title defects — applications to the Registrar under the Transfer of Land Act 1958 (Vic), removal of obsolete caveats, and rectification of the register.
• Easements — creation, variation and removal of easements at law, by implication and by prescription; access, drainage and support.
• Restrictive covenants — advising on existing covenants disclosed on title, and on applications to modify or remove a covenant under section 84 of the Property Law Act 1958 (Vic).
• Boundary issues — encroachments, fencing under the Fences Act 1968 (Vic), adverse possession claims and party-wall arrangements.
• Co-ownership disputes — applications under sections 224 and 228 of the Property Law Act 1958 (Vic) for the sale or partition of co-owned land where the co-owners cannot agree on the future of the property.

Development and subdivision

We act for owners and small-to-mid scale developers on the legal aspects of subdivision and development — the acquisition of the development site, the structuring of the development entity, the section 173 agreement and other planning instruments imposed by the responsible authority, the off-the-plan sale documentation, and the orderly completion of the development through to registration of the plan and settlement of individual lots.

Effective structuring at the outset — the choice of entity, the funding arrangements, the treatment of GST and the margin scheme, and the way profits are taken — materially affects the after-tax outcome of a development. We work with the client's accountant on those issues before the development entity contracts to acquire the site.

Retirement villages and lifestyle communities

Entry into a retirement village or lifestyle community is a significant legal and financial decision, often taken at a point in life when independent legal advice is most important. The documents are detailed, the fee structures (including deferred management fees and refurbishment costs on exit) are complex, and the residence-rights regime differs from a conventional purchase.

We advise prospective and existing residents (and their families, often acting under an enduring power of attorney) on entry contracts under the Retirement Villages Act 1986 (Vic), site agreements under the Residential Tenancies Act 1997 (Vic) for residential parks and lifestyle communities, resident rights and obligations during occupation, and the transaction and refund mechanics on exit.

How Hanlons assists

We act on the full range of property work conducted by a general legal practice — from single residential acquisitions through to commercial property, leasing, development sales and contested property matters. Initial conferences are conducted in our Collins Street office or by telephone or video. Scope and fees are discussed at the outset and confirmed in writing. Where a matter is straightforward we say so; where it requires more careful attention or specialist input, we say that too.

What to bring

• The contract of sale and section 32 vendor statement (for a purchase or sale).
• The most recent rates notice and any title and plan documents in your possession.
• Loan approval or finance offer letter, where finance is involved.
• Identification for all proposed purchasers, for verification of identity at settlement.
• Details of any caveats, mortgages, leases or easements affecting the property.
• For a lease: the current lease, any prior disclosure statement, and details of options exercised.
• For a development: the contract, any planning permits, plans of subdivision and any section 173 agreements.
• For a retirement-village contract: the entry contract, disclosure documents and fee schedule.

Related services

Property work frequently intersects with other parts of the firm's practice. Acquisitions and disposals are often part of a wider commercial and business law matter; property held in personal names should be considered alongside the owner's wills and estate planning; and the firm later assists with probate and deceased estates where property forms part of the administration. To discuss a specific property matter, please contact our office.