Overview
Developing property can be a high-value / high-risk investment demanding a range of legal considerations.
Property development concerns the improvement of land for commercially-driven purposes and can range from a small subdivision to a multi-use residential and retail high-rise.
Property development requires the navigation of a myriad of rules, regulations, standards and practices to ensure compliance, mitigate risk and personal liability and enhance the potential for profit.
Building development agreements
Various legal arrangements may be used when developing property. A joint venture property development requires analysis of the most appropriate legal structure in light of the project being undertaken, the level of risk, and the parties’ personal circumstances.
A building development agreement that sets out the parties’ respective contributions, rights, and responsibilities, allocates risk appropriately and deals with taxation, duty and other financial matters is essential.
Financing
Most large developments need funding which will usually require the granting of a mortgage and / or other securities to the lending institution. A mortgage has significant financial implications by creating a statutory charge over the property in favour of a lender.
Developers should be adequately informed when negotiating finance to ensure they are aware of the terms of the loan agreement incidental to the mortgage and how it may affect different stages of the development.
Company directors providing personal guarantees under financing arrangements should be independently advised.
Due diligence
Before purchasing a property for development, due diligence is carried out to ensure that it is not adversely affected by easements, covenants or restrictions. These should be assessed to ensure they do not pose significant impediments to the proposed development.
The zoning of the land must be suitable and the relevant planning instruments considered in light of the proposed use of the property.
Planning authorities and environmental matters
Liaising with local councils and other regulatory bodies to ensure appropriate planning permits are obtained can be complex and protracted.
Understanding the terms of a planning permit is essential to ensure compliance and avoid delays and loss. Most building permits will be subject to specific conditions such as the creation of various easements for access or for repair and maintenance.
Failure to properly draft the appropriate documentation and carry out works strictly in accordance with the terms and conditions of the permit will create certification and registration issues.
Contracts for off-the-plan purchases
Off-the-plan purchase contracts must be drafted to ensure profitable project delivery and to address contingencies and unforeseen events. Completion dates, sunset dates and termination clauses must be carefully considered to provide maximum protection for the developer whilst complying with consumer protection provisions, disclosure requirements and various other regulations applicable to the sale of property.
Working with professionals
Property development can be very profitable but comes with high risk. It is complex and requires an understanding of many interrelated areas of law. With so much at stake and the potential for the smallest issue to become a major roadblock, it is important to have professional assistance from the beginning.
Our lawyers have expertise in property and environmental law, conveyancing, contracts, construction and commercial matters and can provide practical advice across all aspects of property development, including:
- site acquisitions and due diligence;
- reviewing and preparing sale and purchase agreements;
- negotiating put and call option agreements;
- advising on structuring and finance;
- drafting building development agreements;
- liaising with government authorities and explaining local council zoning regulations and planning instruments;
- community title and bodies corporate advisory;
- preparing and reviewing construction contracts;
- advising on employment and workplace health and safety issues.
