In my final installment, I consider sewerage and drainage and planning issues. Whilst sewerage and drainage systems and planning issues are not registered on title, they affect your use of the property.
Sewerage/drainage diagrams indicate the position of pipes on your property and how your property is connected to the sewer main. Things to look for are whether there are structures built over the pipes and whether your property is connected to the main via another property. If there is a pipe that runs through the back of the property, you will need the approval of the relevant authority to build there. If a structure has been built over the pipe without appropriate approval, you may be required to remove the structure. If you access water and sewerage via an adjoining property, then you should consider whether an easement may be required to ensure that the adjoining land owner has to keep the pipe on their property functioning properly.
Planning issues relate to the approved use and development of the property and whether the land is affected by things such as contamination, tree preservation orders and road widening proposals. If you intend to use the property in a particular way or plan on undertaking certain development (such as constructing a duplex), then you need to ensure that this type of use/work is allowed by Council. Most of this information is contained in a planning certificate known as a "Section 149 Certificate". However, you should always contact Council directly to obtain their advice on your intentions for the property.
Jonathan Marquet
Emil Ford & Co - Lawyers
Wednesday, June 22, 2011
Tuesday, June 14, 2011
Your title under the microscope - Part 2
If you own a strata property, then you will be aware that you own your lot (the unit, apartment, townhouse etc) and you also own a share of the common property through the owners corporation. You are responsible for your lot and the owners corporation is responsible for the common property, such as the lifts, front entrance, car park etc.
When looking at strata titles, it is important to understand the interests that are registered on the common property certificate of title. What are usually listed are the applicable by-laws, covenants and restrictions on use and interests in any bigger strata schemes or community title schemes. Generally speaking, the by-laws for a strata scheme will be the standard ones which are part of Schedule 2 to the Strata Schemes Management Regulation. However, they will vary depending on the scheme's approach to pets and whether the scheme has added to or amended the standard by-laws. Newer and larger strata developments often adopt unique by-laws for the scheme. By-laws can be quite extensive, so often your solicitor will not be able to advise you in relation to them. But that doesn't mean that you shouldn't have a good read for yourself. If you have particular plans for how you intend to use the property, such as have a pet, let out your car space, purchase an air-conditioner, hang your washing out on the balcony, then you should carefully review the by-laws to ensure that the scheme will permit these uses.
Sometimes a car space is not part of the lot area but is an exclusive use of common property. This means that you do not own the car space as part of your unit, but that the owners corporation has given you an exclusive right to use the area as your car space. This is obviously not as ideal as actually owning the car space, so you should look out for this scenario if you are looking to purchase a strata property.
In the newer and larger strata developments, for example, Breakfast Point or Jacksons Landing, Pyrmont, each strata scheme is part of larger strata scheme or community title scheme. This enables responsibility for certain common property such as key private roads, pools and gyms to be shared across multiple strata schemes. However, being under bigger strata schemes may increase your overall levies.
Finally, you should note any easements, covenants or restrictions on use for the common property. Whilst they will generally not affect you, it is worth knowing about them so that you keep watch on how the common property is being used. If the owners corporation breaches the covenant or restriction on use in some way, you as an owner will be impacted.
Jonathan Marquet
Emil Ford & Co - Lawyers
When looking at strata titles, it is important to understand the interests that are registered on the common property certificate of title. What are usually listed are the applicable by-laws, covenants and restrictions on use and interests in any bigger strata schemes or community title schemes. Generally speaking, the by-laws for a strata scheme will be the standard ones which are part of Schedule 2 to the Strata Schemes Management Regulation. However, they will vary depending on the scheme's approach to pets and whether the scheme has added to or amended the standard by-laws. Newer and larger strata developments often adopt unique by-laws for the scheme. By-laws can be quite extensive, so often your solicitor will not be able to advise you in relation to them. But that doesn't mean that you shouldn't have a good read for yourself. If you have particular plans for how you intend to use the property, such as have a pet, let out your car space, purchase an air-conditioner, hang your washing out on the balcony, then you should carefully review the by-laws to ensure that the scheme will permit these uses.
Sometimes a car space is not part of the lot area but is an exclusive use of common property. This means that you do not own the car space as part of your unit, but that the owners corporation has given you an exclusive right to use the area as your car space. This is obviously not as ideal as actually owning the car space, so you should look out for this scenario if you are looking to purchase a strata property.
In the newer and larger strata developments, for example, Breakfast Point or Jacksons Landing, Pyrmont, each strata scheme is part of larger strata scheme or community title scheme. This enables responsibility for certain common property such as key private roads, pools and gyms to be shared across multiple strata schemes. However, being under bigger strata schemes may increase your overall levies.
Finally, you should note any easements, covenants or restrictions on use for the common property. Whilst they will generally not affect you, it is worth knowing about them so that you keep watch on how the common property is being used. If the owners corporation breaches the covenant or restriction on use in some way, you as an owner will be impacted.
Jonathan Marquet
Emil Ford & Co - Lawyers
Friday, June 10, 2011
Your title under the microscope - Part 1
The document that is the proof that you own a particular property is the Certificate of Title. If you are the owner (know as the "registered proprietor"), then your name will be listed on the title. If you have a mortgage over your property, the mortgage will usually be registered and noted on the title.
Sometimes there will be other interests registered on the title. There could be an easement on title, allowing your neighbour to use your driveway to access their property (very common for battle-axe blocks) There could be a covenant on title, either in the form of a positive covenant (requiring you as the owner to actively do something) or a restrictive covenant (requiring you as the owner to refrain from doing something). There may also be a restriction on use which the local council may have required before approving the development of the property. The restriction could relate to an easement for drainage or maintenance of a sewer system, requiring the owner to not build over specified areas and maintain certain infrastructure on the property.
How do these impact on you? From the perspective of the purchaser, you should be fully aware of any restrictions or obligations that are attached to the property before you buy it. Your solicitor should advise you of any significant interests on the title that may have detrimental impact on you. If you are planning to build a huge in-ground swimming pool against the back fence, you may have to change your plans if there is an easement that runs parallel to the back fence. Sometimes covenants dictate the type of materials that could be used to construct the dwelling. If you have grand plans of building a mud-brick house in the middle of a suburban subdivision, make sure there aren't any covenants against non-brick housing materials.
If you are the owner, are you complying with any covenants or restrictions on use? Are you maintaining the pipes? Have you built over an easement? Are you renovating with prohibited materials? These are all important questions to ask yourself to ensure that no action is taken against you by council or a person who has the benefit of the easement or covenant.
Jonathan Marquet
Emil Ford & Co - Lawyers
Sometimes there will be other interests registered on the title. There could be an easement on title, allowing your neighbour to use your driveway to access their property (very common for battle-axe blocks) There could be a covenant on title, either in the form of a positive covenant (requiring you as the owner to actively do something) or a restrictive covenant (requiring you as the owner to refrain from doing something). There may also be a restriction on use which the local council may have required before approving the development of the property. The restriction could relate to an easement for drainage or maintenance of a sewer system, requiring the owner to not build over specified areas and maintain certain infrastructure on the property.
How do these impact on you? From the perspective of the purchaser, you should be fully aware of any restrictions or obligations that are attached to the property before you buy it. Your solicitor should advise you of any significant interests on the title that may have detrimental impact on you. If you are planning to build a huge in-ground swimming pool against the back fence, you may have to change your plans if there is an easement that runs parallel to the back fence. Sometimes covenants dictate the type of materials that could be used to construct the dwelling. If you have grand plans of building a mud-brick house in the middle of a suburban subdivision, make sure there aren't any covenants against non-brick housing materials.
If you are the owner, are you complying with any covenants or restrictions on use? Are you maintaining the pipes? Have you built over an easement? Are you renovating with prohibited materials? These are all important questions to ask yourself to ensure that no action is taken against you by council or a person who has the benefit of the easement or covenant.
Jonathan Marquet
Emil Ford & Co - Lawyers
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