Publications > Property

Rostron Carlyle prepares legal articles and papers for its clients on various areas of law.
The latest publications are listed below.

Property

  • Proprietary Estoppel in an Oral Lease Agreement due to “Family Honour”

    It is timely to revisit the equitable principle of estoppel that steps in to provide relief to a party where one party acts to its detriment and alters its position such that it would be prejudiced if the other party departed from the expectation that was created or encouraged. The case of > Read More

  • No termination right for tenant for water damage

    In the recent decision of Broben & Anor v Hatfield [2016] QCAT 341 it was held that a tenant, who abandoned the premises due to ongoing water leakage, had repudiated the lease. Repudiation of a lease occurs where one party clearly shows an unwillingness or inability to perform the lease or some > Read More

  • New Amendments to the Retail Leases Act 1994 (NSW) set to shake up Retail Leasing Arrangements in NSW

    The Retail Leases Amendment (Review) Bill 2016 (‘the Bill’) received royal assent on 1 March 2017. The Act will commence “on a day or days to be appointed by proclamation” or in other words when notified to that effect in the Government Gazette published online at http://www.legislation.nsw.gov.au/#/gazettes.  On commencement the Bill will > Read More

  • Interpreting Easements

    The recent decision of Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2016] QSC 99 provides guidance for interpreting the terms of easements. It was decided that although only the easement document without the aid of extrinsic material can be considered, reasonableness must also be applied so > Read More

  • Additional foreign acquirer duty: Queensland OSR releases ruling

    We recently advised of the introduction of additional taxation and duty imposed on purchases by foreign persons of residential property in Australia (see full article here).  In Queensland, the provisions of the Duties Act 2001 (Qld) (Act) that impose additional foreign acquirer duty (AFAD) of 3% on transfer duty, landholder duty and > Read More

  • Unfair Contract Terms and Commercial Leases

    The Australian Consumer Law already protects consumers from unfair contract terms in standard form contracts. From 12 November 2016, the Treasury Legislation (Small Business and Unfair Contract Terms) Act 2015 (UCT Act) will apply extending the unfair contract term protections to small businesses. In this article we will consider implications that the > Read More

  • Foreign Resident CGT Withholding Tax – Deceased Estates

    We recently advised of the introduction of the foreign resident CGT withholding tax regime that came into effect on 1 July 2016 under changes to the Taxation Administration Act 1953 (Cth) (see full article here).  By way of brief summary, purchasers are required to withhold from the market value (where such market > Read More

  • The exercise of Options following changes to Standard Contracts

    Changes in legislative requirements and standard contracts between the time of entry into an option and the time of the exercise of the option (which may well occur in a few years’ time), may put a lawyer in a position where it is uncertain how the put option should be exercised. In > Read More

  • Important Changes to Retail Leasing

    The Retail Shop Leases Amendment Bill 2015 (Qld) recently received royal assent is expected to commence later this year. This will mean important changes for retail landlords and tenants.  The following is a summary of the key changes to the Retail Shop Leases Act 1994 (Qld) (“Act”).  Application of the Retail Shop > Read More

  • Latest changes in Federal and State Taxes and Duties – Impact on foreign property investors

    Following the latest release of the state and federal budgets, new rules are set to be implemented which will affect Australia’s property ownership landscape and in particular foreign owners, developers and foreign investors of Australian real estate. We highlight a few recent measures in this article. Compulsory federal tax withholding regime – > Read More

  • Today’s price for tomorrow’s equity: Selling off the plan – what do you need to know

    Recently buying a property “off the plan” has become more and more common place for both investors and home buyers. A key reason for developers to sell off the plan is to secure as many sales as possible to obtain funding from their lenders. Once a buyer has committed to purchase, a > Read More

  • How will the CGT Withholding Regime affect you?

    With the new foreign CGT withholding tax regime to come into force from 1 July 2016, the question is not “Will the changes affect you?” but “How will the changes affect you?”. Under the new regime, any person accepting a transfer of certain Australian assets from a relevant “foreign resident” is required > Read More

  • Pre-emptive rights of purchase under leases

    A pre-emptive right of purchase (which is often referred to as a first right of refusal) allows tenants to have some control over how their landlord may deal with the premises. In a recent decision of Mayfair Property Holdings Pty Ltd v Southland Packers Pty Ltd [2106] QSC 27, the Supreme Court > Read More

  • Implied Terms in Contract of Sale

    When can a term be implied in a contract? In a recent decision of Interlink Australia Pty Ltd v Lowe [2015] QCA 211, the seller’s home was built on 2 lots.  The buyer signed contracts to buy both, but intended to do so in different but related entities. Initially, the buyer sought > Read More

  • “Subject to contract” – is there a binding agreement?

    In pre-contractual negotiations parties often make offers and counter-offers as to price and other terms, and reach an agreement that is expressed to be “subject to contract” in the belief that they are not bound until a formal contract is signed by both parties. However, this is not always correct! In Stellard > Read More

  • Chattel or Fixture

    The sale of property frequently gives rise to disputes concerning ownership of items on the land removed by a seller. In determining this question, the Courts consider the issue of whether the disputed items are characterised as a chattel or a fixture. In many cases, the value of such items are such > Read More

  • Mortgagee’s duty in exercising Power of Sale

    In 2007 Mr and Mrs Pola, borrowed $7.2 million from ANZ, the loan being secured by mortgages over their properties. By late 2009 the Polas were in default and ANZ took possession of two adjacent properties in Queensland in December 2009 (the Property). In September 2010 ANZ exercised its power of sale > Read More

  • New REIQ contracts for e-settlements in Queensland

    The Real Estate Institute of Queensland (REIQ), in conjunction with the Queensland Law Society, have recently updated the REIQ residential house and land contracts to the 11th edition and the REIQ residential contracts for lots in a community titles scheme to the 7th edition. This is the second round of changes to > Read More

  • Changes to the Home Building Act 1989 (NSW) – Things to keep in mind for buyers and owner-builders

    The Home Building Amendment Act 2014 (NSW), containing more than 50 amendments to the Home Building Act 1989 (NSW), was passed by the NSW Parliament in May 2014. The main purpose of the Home Building Act 1989 (NSW) and Home Building Regulation 2004 (NSW) is to provide consumer protection in the home > Read More

  • Commencement of Property Law amendments

    The Property Occupations Act 2014 (POA) and Land Sales & Other Legislation Amendment Act 2014 which are arguably the biggest changes in the property industry for years both commenced on 1 December 2014 following . The reduction in red tape brought into effect with the commencement of these Acts has been anxiously > Read More

  • Foreign Investment in Australian Residential Real Estate

    There has been much made of the recent investment by foreign buyers into Australian residential real estate. Some commentators have suggested that this has led to the surge in values of residential real estate-particularly in Sydney and Melbourne-and there have been reports particularly of sales of second hand real estate in breach > Read More

  • A Win for Off-The-Plan Buyers

    In the decision of Orchid Avenue Pty Ltd v Goode and Barber, off-the-plan buyers were successful in establishing misleading and deceptive conduct by the developer’s agent and obtained orders for recovery of the deposit together with accretions and costs.   Facts In August 2009, the defendants entered into a contract to buy > Read More

  • Cutting down on red tape in the Queensland property industry

    New Legislation to Impact on Developers, Home Buyers and Investors with the Introduction of the Property Occupations Act 2014 (Qld) and the proposed Land Sales & Other Legislation Amendment Bill 2014 (Qld) Whether you’re a large-scale property developer or thinking of buying your first home, everyone buying or selling property will be > Read More

  • Leasing a commercial premises

    Leasing a commercial premises for business use A hassle-free lease contains all relevant terms and conditions and clearly identifies all rights and responsibilities. Leases for business premises are usually prepared by the owner’s solicitor. So, if you intend to lease premises for a business it is important that you and your solicitor > Read More

  • Proposed changes to the Land Sales Act

    The Land Sales Act was introduced in 1984 to deal with problems caused by the sale of improperly described land in the 1960s and 1970s and applies to both strata and non-strata property which is off the plan. In accordance with a recommendation made in 2001, the Queensland Government has reviewed the > Read More

  • What to expect when we act on your behalf in the conveyance of your new investment property

    The following are the important steps that will occur in the conveyance of your new property to your name: If you choose not to sit down for a consultation, the Estate Agent will fax, email or mail a signed copy of the Contract to Rostron Carlyle Solicitors. A title search is carried > Read More

  • Application, Implications and Limitations of s 128 of the Property Act 1974: ‘Relief against loss of Lessee’s Option’

    Application The provisions of section 128 of the Property Law Act 1974 (Qld) apply to lease agreements that contain options to purchase or renew and provide relief for tenants who are liable to lose their entitlement to exercise an option owing to the fact that they have breached their obligations under a > Read More

  • New residential tenancy laws in Queensland – 19 May 2009

    19 May 2009 The Residential Tenancies and Rooming Accommodation Act 2008 (the new Act) comes into effect on 1 July 2009. The new Act updates existing tenancy laws for Queensland and will replace the Residential Tenancies Act 1994 and the Residential Services (Accommodation) Act 2002. Changes affecting residential tenancies The new Act, > Read More

  • What should you consider before buying a residential property in Queensland?

    If the property is to be your residence, own it in your name or joint names with your spouse or partner to ensure you do not pay CGT when you sell the property? If the property is to be an investment property, consult with your solicitor and accountant to determine what is > Read More

  • Buying or selling a residential property

    Buying or selling a residential property will be one of the most important financial transactions you make. To be confident in your decision and to ensure that no unexpected costs arise or problems appear, seek the advice of Rostron Carlyle’s solicitors before you sign any contract. Conveyancing Conveyancing is the term used > Read More

  • Changes to off-the-plan unit contracts – 24 June 2009

    The Queensland Government has reacted quickly to the decision of Bossichix Pty Ltd v Martinek Holdings Pty Ltd [2009] QCA 154 (Bossichix) by passing the Body Corporate and Community Management Amendment Bill 2009 to rectify an unintended consequence of the Body Corporate and Community Management Act 1997 (BCCMA). The decision of Bossichix > Read More

  • Land Tax Changes – Queensland – Implications for Commercial Leases

    What’s changed? On 1 July 2009 new laws came into effect repealing section 44A of the Land Tax Act 1915 which provided that a Landlord could not charge a tenant land tax in any Lease that was entered into after 1 January 1992. The effect of this means that where a Landlord > Read More

  • Changes to the Liquor Act – will there be boutique bars?

    On 1 January 2009 new laws came into effect which will restructure the types of liquor licences available in Queensland and increase the flexibility of the liquor licensing system. Among the changes is the introduction of a “bar licence”. Section 70 of the Liquor Act 1992 (the Act) provides for the introduction > Read More

  • Changes to the Property Agents and Motor Dealers Act 2000 – a more sensible approach

    24 March 2010 On 24 March 2010 the Queensland Government announced changes to the Property Agents and Motor Dealers Act 2000 (Qld) (Act) to amend the requirements for proposed and relevant contracts for the sale of residential property in Queensland. These changes will come into effect on 1 October 2010 and according > Read More

  • Are you buying, selling or leasing a residential property with a swimming pool in Queensland?

    Buying or Selling Residential Property with a swimming pool? The Queensland Government has recently introduced a number of changes to Queensland legislation relating to Swimming Pool Safety Laws. It is anticipated that the bill will be in effect from 1 December 2010 requiring that a Seller of a residential property that has > Read More

  • Forced relocation – know your rights

    There are a number of reasons why a landlord may wish to relocate their tenants and likewise a great number of reasons why a tenant may wish not to be relocated. Forced relocation can be disruptive to a business, costly and stressful for the tenant. If you operate a retail shop which > Read More

  • Retail Shop Leases – Changes to Disclosure Requirements

    Retail Shop Leases- Changes to Disclosure Requirements Disclosure Documents are to be provided to potential Lessees 7 days before a Lessee enters into a Retail Shop Lease. Prior to the Legislative changes, the necessary Disclosure Documents varied depending on the state. Following the amendments to the Retail Shop Leases Act 2006 (Qld) > Read More

  • Ratchet Clauses in Retail Shop Leases

    Retail Shop Leases- Ratchet Clauses On 4 April 2011, Criminal Code and Other Legislation Amendment Act 2011 (Qld)was passed to prevent the use of ‘ratchet clauses’ in Retail Shop Leases. What is a ‘ratchet clause’? When it comes to Retail Shop Leases, a ‘ratchet rent review clause’ refers to a clause which > Read More