When you plan to move from your home turf to another nation, it helps to know the local laws, language, culture and social customs. Similarly, it is important to understand the property laws so that you can buy your home, set up business, lease properties, or deal with real estate in other forms.
Property laws are not uniform across nations and even within a nation. Therefore a thorough understanding of property laws that apply to your destination is always helpful to pursue your goals in a foreign land. Armed with such information you can acquire ownership, transfer, and lease or sell properties with ease so long as you comply with the local regulations and laws. Thus, if your destination is Australia, assuming that property laws applicable in your homeland will apply to Australian real estate will be a major mistake that you can avoid.
Important Property Laws in Australia
Property laws in Australia are relatively straightforward and so are the regulations governing her real estate for various types and sizes. The law requires strict compliance with the applicable regulations and laws and familiarity with those regulations and laws is essential before you embark on dealing with Australian property.
Different Transaction Types
Different Australian laws govern multiple property transaction types and we therefore examine some of these provisions.
General Guiding Principles
Under Torrens title, you can lodge documents to transfer interests in nearly any land. The documents covering the transaction are required to be executed in prescribed forms that comply with regulations stipulated by the registry for the state in which the property is situated. Every state in Australia has its specific set of regulations and these are not uniform across Australia. What is applicable to a given jurisdiction is significantly important for smooth conveyance of property. The process of digitisation of land records has also been set in motion and most Australian states are completing the process as at 2019. Therefore, it is probable that you need expert advice from a local lawyer or law firm to assist you wade through the documentation process.
PB Lawyers, a leading law firm base out of Melbourne bring over 2 decades of experience and expertise to the table. They can significantly be of help acquiring Australian property and answering questions.
When you submit documents relate to property transactions in Australia, in certain states, you may be required to get the documents stamped by a government office before the documents can become effective. This stamping process also attracts a fee or transfer tax and the transaction value mentioned in the document guides the amount of fee or tax to be paid. If you are a foreign company or foreign individual, you may be charge a higher tax or stamp duty when you acquire Australian properties. Appropriate legal advice is always helpful when you plan acquiring properties of any description in Australia.
Some Australian states also maintain a separate register to record land transactions involving foreign ownership. This register, where applicable, is distinct from the FIRB approval that foreigners would need to obtain before they can invest in Australian property.
Some states in Australia also require purchasers to verify the residency status of sellers including their compliance with the GST regulations. The local laws may also require the purchaser to retain a portion of the sale consideration and remit it to the tax office directly. Failure to comply with this regulation can make the purchaser liable for the tax amount from her/his own resources.
There are two distinct types of land ownership in Australia:-
Freehold title and crown land are the two types and each state has its own legislation to regulate land ownership.
The term ‘freehold’ itself defines freehold title and the buyer gets complete and unrestricted ownership in the property purchased (some rights like exploiting minerals etc may still be restricted in certain states) and the land can be use in any reasonable manner that the buyer desires subject to compliance with local and environmental laws. Most of the freehold titles generally fall under Torrens title system.
Torrens Title Explained
Torrens title is a simple and effective title constituting a secure system for protecting rights of buyers with respect to registered interests in the land. This form of title allows you to register nearly all types of interest in land in the relevant territory or state. Further, Torrens title also constitutes a major resource to comprehend interests that applies to specific properties and terms governing such interests as with registered lease.
However, in Australia, certain parcels of freehold land continue to be under Torrens title and such lands are delineated under an ‘old system’ with relevant regulations. Most of such lands are in NSW and rare to find. However, compared to Torrens system, dealing with properties delineated under the ‘old system’ has its share of complexities although you can still get a secure title. Further, the freehold titles can be subdivided in multiple ways and this can be achieved through a strata title or community title and both these variants have distinct statutory regulations for administration.
Strata title generally applies to multi-level complexes that provide benefits of enjoying part ownership in a building, usually called a unit/lot while still giving unfettered access to pools/foyers, lifts and similar common facilities. Conversely, when you intend to sub-divide a land such as for housing estates, community title is ideal. Similarly, if you plan to build apartments in Australian territory as also when you intend to own only a certain part of a larger property having common facilities like private roads, parks etc.
Crown land represents land that continues to be owned by the Australian government. However, you should know that crown land does not fall under freehold title and statutory regulations are in place to govern them.