Property Disputes

Dispute Resolution – Property

Real property (land) is a valuable asset and those involved in a property dispute will generally be keen to protect their interests.

The laws concerning property are complex with a matrix of doctrines, equitable principles and statutes to navigate. Additionally, property disputes often arise during other legal proceedings such as family law or estate matters and must be considered with reference to these issues.

Caveat disputes

A person with a legal interest in land that is not formally recognised or registered on the title deed, may lodge a caveat to protect that interest. A caveat prevents a person from dealing with the property without first notifying the caveator (person who lodges the caveat).

Only ‘legal’ (genuine) interests in land are caveatable and the wrongful lodgement of a caveat may leave a person liable to the landowner for any loss incurred including legal costs to have it removed.

A caveatable interest is determined through legislation and / or case law. An interest may be genuine to protect the purchaser of a property under a contract, in family law proceedings, or to secure a debt (provided there is an incidental loan agreement with provisions charging the borrower’s property).

It is important to obtain urgent legal advice if you believe you need to lodge a caveat to protect your interests, or if a caveat has been lodged on your property.

Co-ownership property disputes

Co-ownership means having an interest in property with one or more other owners, whether as a joint tenant or tenant in common.

If property is held as a joint tenant then, when a co-owner dies, the deceased owner’s share automatically vests in the surviving joint tenant/s. Conversely, a tenancy in common specifies the share of the property held by each owner who may transfer, sell or bequeath that interest to another person. This is an important consideration during a property dispute, many of which arise simply because co-owners may not understand the implications of their property interests.

Disputes between co-owners are often triggered by relationship or business partnership breakdowns, financial problems, claims that a registered interest in property is disproportionate to the contributions made, the death of a co-owner, or the proposed use or development of the property.

Property disputes can be complex, however may be resolved through negotiation resulting in an agreement to sever a joint tenancy, adjust interests in the property, transfer land from one co-owner to another/s or sell the property and apportion the proceeds as agreed.

Any proposed resolution requires consideration of a range of matters including taxation and stamp duty issues. Parties should seek independent legal advice and ensure the terms of settlement are documented in a binding agreement.

Commercial and retail leasing disputes

Commercial and retail leasing disputes may involve alleged breaches of lease terms, responsibilities for repairs and maintenance, non-payment of rent or the calculation of outgoings. Disputes can arise because there is no written agreement governing the arrangements, the parties are unaware of their rights and responsibilities under an existing lease, or the terms are ambiguous.

Retail leases are governed by legislation aimed to protect lessees and even the playing field between lessors and lessees. Leases for retail premises must contain minimum terms and lessors must comply with certain disclosure requirements before offering the lease.

Whether or not premises are retail, lessors should have lease agreements professionally prepared to ensure compliance, completeness, and to minimise the potential for disputes.

Lessees who feel they have been unfairly treated by a lessor, or that retail disclosure documentation has been incomplete, misleading or deceptive should obtain advice concerning their legal rights.

Many property disputes can be resolved through good communication and negotiation, with the assistance of a dispute resolution specialist or lawyer. Some disputes may need to proceed through a relevant Court or tribunal. We deal with a range of property disputes concerning:

  • caveats and other registered interests;
  • property ownership;
  • commercial and retail leasing;
  • contracts for the sale and purchase of land;
  • easements, rights of carriageway and other interests in land;
  • fencing disputes;
  • adverse possession and encroachment issues;
  • property development and construction.

Key Contacts

Doug McKinstry
Director
John Hayward
Director
Rhiannon Saunders
Director
Joshua McDiarmid
Associate