Purchaser due diligence and enquiries

Subject to mandatory vendor disclosure obligations (see Overview — Vendor disclosures), any implied warranties or warranties included in contracts of sale, and the law relating to misrepresentations or misleading or deceptive conduct (and similar vitiating factors), purchasers still typically acquire property on a caveat emptor, or buyer beware, basis. Even in those jurisdictions that have mandatory vendor disclosures...

Standard form contracts

Each jurisdiction has one or more standard form contracts that are widely used by lawyers, conveyancers and/or real estate agents and which are published by the law society, real estate institute and conveyancing institute within that jurisdiction. The following table sets out the most used standard form contracts within each jurisdiction: Authored by Dr Stephen Pallavicini, Lead Property Lawyer, Marie Boustani, Property...

Prescribed, implied and prohibited terms for contracts of sale

The contract for sale is the primary document entered into by a vendor and a purchaser. It is a legally binding agreement under which the vendor agrees to sell, and the purchaser agrees to purchase, a particular property. The rights and obligations of each party are set out in the contract for sale. Additional rights or obligations may be implied by common law or legislation or equity, some of which cannot be contracted...

Identification of land, improvements and goods in contracts

The sale of land ultimately involves passing title from the vendor to the purchaser. However, it is important that the parties, and the resulting contract, are clear on what is physically being transferred. This includes accurately identifying the land and its boundaries, any height or depth limitations, and what fixtures, other improvements, goods or chattels are transferring or being removed. Title should also pass...

Foreign investment in Australian land

The Foreign Acquisitions and Takeovers Act 1975 (Cth) (the Act) imposes limits on foreign ownership of Australian real estate. It is supplemented by the Foreign Acquisitions and Takeovers Regulation 2015 (Cth) (the Regulations). Authored by the LexisNexis Legal Writer team. Updated by Sara Hatcher, Consulting Principal, Keypoint Law (NSW) and Simon LaBlack, Director, LaBlack Lawyers (Qld). The Foreign Acquisitions...

Execution and exchange of contracts

Contracts for the sale and purchase of land must be in writing, and executed by all parties, although equity may enforce oral contracts under the doctrine of part performance. (s 54A, Conveyancing Act 1919 (NSW); s 126, Instruments Act 1958 (Vic); s 7, Property Law Act 2023 (Qld) (from 1 August 2025); s 59, Property Law Act 1974 (Qld) (prior to 1 August 2025); s 34, Property Law Act 1969 (WA); s 26, Law of Property Act...

Heads of agreement for leases

The commercial terms upon which parties agree to enter into a lease between the parties are usually set out in a document called: a "heads of agreement" (HOA); a "lease proposal"; or a "letter of offer". The HOA is executed by both parties and its terms form the basis of the lease. A critical issue for parties to consider when entering into an HOA is the point at which the parties...

CGT discount, anti-overlap rule and minor CGT exemptions

Capital gains made on assets disposed of after 11:45 am (ACT time) on 21 September 1999 may be reduced by the discount capital gains tax (CGT) concession in Div 115 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997). Authored by Greg Vale, Solicitor Director, Vale Legal and John Gaal, TaxCounsel. Updated by the LexisNexis Legal Writer team. CGT discount Capital gains made on assets disposed of after 11:45 am...

Entering into a lease — what a landlord should consider

Understanding the considerations and motivations of a landlord can assist legal practitioners in determining how to advise a landlord before the landlord enters into a lease with a tenant. A landlord owns the building in which the leased premises are contained and, for that reason, a landlord’s primary consideration is to protect that investment. Accordingly, a landlord may: Authored by Catherine Hallgath, Partner...

Commercial building disclosure program

Commercial Building Disclosure (CBD) program The Commercial Building Disclosure (CBD) program is a national regulatory program established by the Building Energy Efficiency Disclosure Act 2010 (Cth) (the Act). Subject to some exceptions, in most cases where commercial office space with a net lettable area of 1000 sq m or more is offered for sale, lease or sublease: a building energy efficiency certificate (BEEC...

Licenses of Crown Land

A Crown land licence is a contractual agreement granting the licensee a personal right to occupy and use Crown land for a particular purpose. See the Precedent: NSW — Sample Crown land licence granted under the Crown Lands Act 1989 (NSW). This Act was repealed and replaced by the Crown Land Management Act 2016 (NSW). Authored by Tony Cahill, Legal Author and Commentator; John Boag, Director, Everingham Solomons;...

Benefits and risks of e-conveyancing

Introduction What are the benefits of e-conveyancing over paper-based conveyancing? Electronic conveyancing (or e-conveyancing) benefits legal practitioners and the relevant parties in a number of ways, including the following: More efficient conveyancing transactions: Legal practitioners do not need to attend a physical settlement or physically lodge documents at a revenue authority or land registry. Legal...

Variation of leases

Can a lease be varied? A lease, being a contractual agreement, can be varied by way of a supplementary agreement between the parties. If considering a variation of lease, it is important to determine if it will operate: to vary the existing lease; or as a surrender of the existing lease and a regrant of a new lease under the varied terms. Varying a lease under general law Under the general law, it was formerly...

What happens if a tenant goes into liquidation?

It is unlikely that a company will still exist after the end of a period of liquidation given that the purpose of the appointment of a liquidator is: to use the assets of a company to pay the company’s debts; and to then “wind up” the company. Landlord may be entitled to terminate the lease The appointment of a liquidator for a tenant company may entitle the landlord to terminate the lease...

Agreements for lease

What is an agreement for lease? An agreement for lease is a document separate from the lease. It is an agreement to enter into a lease at a later date on the terms set out in the agreement for lease and is binding on the parties. An agreement for lease is entered into when a lease cannot yet be entered into because: one or more of the critical terms of the lease, usually the rent or the commencement date, cannot...

Incentives provided by landlords to tenants

What is an incentive? A landlord may give a tenant an incentive to enter into a lease. An incentive is generally (but not always) recorded in a separate incentive deed. See the Precedent Lease incentive deed . It is common practice for all or part of the incentive(s) to be repayable by a tenant in the circumstances specified in the relevant incentive deed, e.g., assignment or early termination. From a landlord’s...

Entering into a lease — what a tenant should consider

Key considerations for a tenant before entering into a lease Before entering into a lease, a tenant should ensure that: the premises (and the building containing the premises) are sound; the required services will be available to the tenant during the term of the lease; the premises can be used for the permitted use (see Use the premises for the permitted use); any obligations to spend money/do work are capped...

What is community title?

Community title is a type of Torrens title subdivision and is also a type of freehold ownership. After a community plan is registered at the Land Registry Service (LRS) and subdivides the land into community property (always identified as "Lot 1" in the community scheme) and lots, each lot is given a folio identifier as it would in a conventional subdivision (eg Lot 10 in community plan 270270 has a folio identifier...

Exemptions from land tax

The land tax legislation in each state and territory provides exemptions from the requirement to pay land tax. The nature of the exemptions varies in each state and territory. This section reviews in broad terms some of the most common grounds for exemption from or a reduction of (by way of concession or otherwise) the payment of land tax. There may be additional grounds contained in the relevant state and territory legislation...

Practical drafting considerations for sale of land contracts

Contracts of sale tend to be prepared by, or on behalf of, the vendor. As a result, they are usually more vendor friendly. Purchasers prepare contracts of sale less commonly. In either case, understanding the client and property, through taking proper instructions and making use of appropriate precedents and standard form contracts, all help to properly complete the task of preparing the contract of sale. Authored by...

Cooling off rights

Part 4, Div 8 of the Conveyancing Act 1919 (NSW) (the Act) deals with cooling off periods for residential purchasers. The cooling-off provisions only apply to “residential property”, as defined in s 66Q(1) of the Act. Authored by Dr Stephen Pallavicini, Lead Property Lawyer, Marie Boustani, Property Lawyer, Woolworths Group Ltd and Sara Hatcher, Consulting Principal, Keypoint Law (NSW); Lisa Gaddie, Partner...

Dealing with contaminated land in contracts of sale

Transacting with contaminated land (whether known to be contaminated or not) poses difficulties and risks for vendors and purchasers. Vendors will need to take care to meet any disclosure requirements, not make any misrepresentations, and comply with any environmental duties pending completion of any contract. Authored by Chris Camillin, Partner, Aitken Partners (Vic); Simon LaBlack, Director, LaBlack Lawyers (Qld);...

Continued tenures and other restricted or conditional purchases and grants

Clause 2 of Sch 1 of the Crown Land Management Act 2016 (NSW) (Act) defines a “continued tenure” as meaning: a continued incomplete tenure purchase; a continued permissive occupancy; a continued perpetual lease; a continued special lease; and a continued term lease. Authored by Tony Cahill, Legal Author and Commentator; John Boag, Director, Everingham Solomons; Katelin Whitley, Principal, Bestic...

Termination of standard residential tenancies by tenant — Australian Capital Territory

Termination of residential tenancy agreements (tenancy agreements) is governed by the Residential Tenancies Act 1997 (ACT) (Act). Despite any act or law to the contrary, tenancy agreements can only be terminated in the circumstances set out in s 36, which include: Adapted from content authored by Stephanie Lynch, Partner, Meyer Vandenberg Lawyers and Christine Murray, Managing Partner, Meyer Vandenberg Lawyers (ACT...

Exercise of option for or by nominee

Often, an option will be granted to a specified person or his/her “nominee”. A nominee provision does not give rise to any assignment of the option. It only gives power to the nominee to exercise the option on behalf of the grantee. Authored by Christopher Conolly, Partner, HWL Ebsworth Lawyers. Updated by the LexisNexis Legal Writer team. General Often, an option will be granted to a specified person...