Real Estate in Australia

These are the highlights if you want to know more about the essential Real Estate Law in Australia. This entry was drafted by Etienne Lawyers. Link to E-Iure Network.

This collaboration is a brief step-by-step guidance. In no case it can be considered as legal advice. If you want -or need – legal advice, ask for a lawyer or a law firm. In that case Etienne Lawyers is an excellent option in Australia.

Types Of Ownership

Land may be held by individuals or companies. Provided notification is made, foreign individuals and companies can also purchase land in Australia.

Land acquired is held in fee simple. Subject to Government’s having reserved the right to acquire land, land once purchased is the sole and absolute property of the purchaser.

Ownership of land by foreigners is permitted. See the section on Foreign Investment.

Land And Register

Generally, ownership of land in Australia is recorded by the Torrens registration system. All land has a specific lot and plan number and the name of the owner is disclosed in the register. The register is authoritative as to who the owner of land is at a given time.

Transfer Formalities

Land is transferred by sale, gift or transfer upon death. For the transfer to be valid at law, it must be noted in the appropriate State or Territory Department of Lands registry.

A tax on the transfer of land from one person to another current applies in most States and Territories of Australia. The rate of Stamp Duty as this tax is called varies between the States and Territories.  Anti-avoidance provisions exist to prevent people from seeking to avoid the payment of Stamp Duty using corporate and trust vehicles.

As at 1 July, 2011 there is no estate or death duties payable upon the transfer of land from a deceased to his or her beneficiaries.

Mortgages

Mortgages are created and also recorded In the register pertaining to the land.

Mortgages can also arise without being registered although the level of security in such cases can be affected by the failure of the mortgagee to register the security interest in the land. In some cases, the mortgagee’s security interest could be lost due to the failure to register the mortgage.

Restrictions On acquisition

There are notification procedures to follow but in general there are no restrictions on foreign individuals or companies purchasing or holding land in Australia.

Construction And Use Restrictions

The permitted use of land is controlled by the third tier of government in Australia, the Local Council. When looking to purchase land, purchasers are advised to obtain the latest zoning certificate to ensure that the land can be used for the desired purpose of the purchaser.

Development cannot take place on land until the Local Council gives development consent to the proposal. The length of time it takes to obtain Development Consent following the lodging of a Development Application depends upon each State and Territory and each Local Council.

Leases

Land in Australia can be leased. The usual types of leases are leases for a term, leases at will and periodic leases. Leases for a term greater than 3 years (inclusive of any option to renew) should be placed upon the register of the land. No government permission is required for a land owner to grant a lease to a lessee.