Did you know about these possible traps?
Whether buying or selling real property, remember that when it passes over it must be unencumbered. Mortgages, caveats and writs can be released at settlement but otherwise the property is to be unencumbered and the Transfer to a Buyer capable of immediate registration. Nobody else should have or be capable of having any claim or power over the property. Remember the “free” in freehold. Most of the time there are no problems. If a Buyer is made aware of an encumbrance by a disclosure in the Sale Contract then a problem should not arise - for example, a registered easement to provide access to a neighbouring property or perhaps to the Council in respect of sewers, drains etc.
Easements come in all shapes and sizes and give someone else a right over part of the land for a specific purpose, e.g. an Easement in favour of the Crown or a public or local authority created by Statute that may not be registered on the title, e.g. services for electricity, gas, telephone, water supply, sewerage, drainage and perhaps cable TV that access your property through, under or over other land or for accessing other land through under or over your land, can be a problem particularly if a Buyer intended to extend the dwelling or install a swimming pool.
Disputes with neighbours over a fence can be a problem. The current standard Sale Contract requires disclosure of fence disputes already at QCAT.
A matter that is frequently overlooked is compliance with Council Local Laws. If work has been done upon a home, or an outbuilding erected, almost certainly there will be a Council Local Law controlling the matter. Previous standard Sale Contracts provided for all building approvals to have been obtained but the current Contract only provides for a Building and Pest Inspection. Properties changing hands in the Moreton Bay Regional Council area (but currently no others) will be inspected by Council to ensure that all approvals have been obtained.
Reputable builders will advise when Council permits are required - but if the matter is not raised, check it out for yourself remembering that after the purchase is completed, the new owner is responsible. And there are a lot of owner-builders and handyman types out there. The most frequently overlooked matters include pergolas, lawn lockers, garden sheds, swimming pools, pool fences and sewerage connections.
If approval is required and has not been obtained, the Council can require works to be done or to be undone. And it doesn't matter who did the work. The owner for the time being must comply with the Council’s requirements. And building standards have changed. What may have been good building practice 20 years ago may not now be acceptable. Expensive works may be required in order to achieve the necessary permit.
Solicitors for Buyers of real property will alert clients of these problems and Building Inspectors should advise on compliance with building standards but unless there is a Special Condition in the Contract, termination because a Building Approval has not been obtained is not available.
Make sure all of your needs and rights are covered. Consult this legal firm with nearly half a century of knowledge and experience first and get it right!
Need help with the law?
Before buying or selling real property or need a Lawyer for some other legal matter, contact the contact G. R. Brown Solicitor and Notary Public between 8.30am and 5.00pm Monday to Friday by visiting the office at Suite 5, Sandgate Arcade, cnr Brighton Road and Second Avenue, Sandgate, Qld 4017 or by telephoning on 07 3269 8511 or emailing firstname.lastname@example.org .
The conveyancing hot-line is 1300 734310 or email email@example.com .