A common question is whether the sale by a mortgagee exercising power of sale will extinguish all subsequent encumbrances when the transfer is registered.

In particular, will all caveats be removed on registration of the Transfer by the Mortgagee Exercising Power of Sale?

Most people know that a contract for the sale of land in New South Wales must generally contain a copy of the title documents, drainage and sewerage diagram and a planning certificate (section 10.7) issued by the local council. 

Fixtures refer to items that transition from being personal property (a chattel) to becoming part of the real property through attachment. This distinction is critical for anyone buying or selling property, as it influences rights and expectations. In this article, we aim to clarify the concept of fixtures, providing valuable insights for those navigating the complexities of property law. 

Company title is a term used to describe a conventional property title that is held by a company.  The shareholders of the company have a right to occupy a part of the building or land in accordance with the constitution of the company.  The company is the registered proprietor of the land. “Is it a good idea for me to buy a company title property?”.

Holman Webb is pleased to announce that eleven lawyers have been included in the 2024 Edition of The Best Lawyers in Australia, and Best Lawyers: Ones to Watch in Australia. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. 

In September 2021, Holman Webb published an article highlighting the decision of His Honour Justice Darke in the matter of BP7 Pty Limited v Gavancorp Pty Limited [2021] NSWSC 265: Put and Call Option Agreements in Residential Property Transactions.

There has now been a legislative response to this decision.

The Conveyancing (Sale of Land) Regulation 2022 commenced on 1 September 2022.

Regulation 17(3) of the 2022 Regulation provides that “section 66S of the Act does not apply to a contract made in consequence of the exercise of an option to compel the purchase of land”.

This effect of this amendment is that there is no cooling off period for the sale of residential property made in consequence of a Put Option.

In August 2021, Holman Webb Lawyers reported that the New South Wales Government was considering introducing ‘Decennial Liability’ insurance (inherent defect insurance) to provide up to 10 years of cover to apartment owners for the cost of rectifying defects that threaten the structural integrity of the building.

In a 25 October 2022 media release, the minister for fair trading, Victor Dominello has now announced that the government has accepted the application of Resilience Insurance to offer the insurance.

The minister’s view is that “Decennial liability gives power to the purchasers and body corporates, who will no longer need to prove liability and will only have to demonstrate the damage for assessment.” 

The policy will provide cover for up to 10 years and would cover critical parts of the building’s common property, including the building’s structure, fire safety systems and water proofing.

The Decennial liability cover, in conjunction with the cover under the Design and Building Practitioners Act 2020, now means that apartment owners have up to 10 years to either make a claim under the policy, or make a claim against the building practitioner for damage to the building caused by defective building works or design.

From 1 August 2022, overseas entities that own or are planning to buy, sell or transfer property or land in the United Kingdom will be required to register on the Register of Overseas Entities (‘the Register’) administered by the UK Companies House.

A failure to comply with these obligations is a criminal offence and can result in

• fines of up to £500 for each day that the overseas entity is not registered, or
• a prison sentence of up to 5 years for the managing officer of the overseas entity.

In April 2022, the ATO issued 50,000 letters of demand to company directors giving them 21 days to resolve tax liabilities.

Historically, once ATO and major banks start escalating collection activity, it’s not uncommon to see insolvencies rise.

This piece from Holman Webb's Commercial Recovery and Insolvency Group highlights the impact that the ATO's issuance of these letters is likely to have within the building and construction industries.

The Australian Financial Review recently reported that “total construction sector inflation will hit 9.5 per cent over the year to June 2022, and 6 per cent over the year to December 2022”.

This increased financial pressure in the industry will heavily impact the likelihood of increased insolvency activity.

With the latest ABS statistics confirming that the CPI increased by 2.1% in the last quarter, and that inflation reached 5.1% over the 12 months to March 2022 quarter (the highest since 2001) - those in the building and construction industries have been particularly hard hit.

Higher inflation impacts:

• Supply chains: a shortage of materials has seen an increase of 3.8% in construction costs;
• Labour markets; and
• RBA interest rate rise: higher interest rates may lead to a dampening in economic activity.

These additional costs have flow on effects to construction activity, some of which may be far reaching.