Undertaking A Development – Property Law

Before undertaking Property Law Development we take a look at the many reason's to seek legal advice and how we can help.

In this video, Property Law  Partner and Accredited Specialist (Property Law) Simon Bennett takes us through the considerations when Undertaking A Property Development.

Contact our Gold Coast Lawyers team for more information here Property Law Enquiries.

Transcript

I'm Simon Bennett from OMB Solicitors, and I wanted to talk to you today about the prospect of undertaking a development, and particularly how OMB Solicitors could help with that development.

So when we talk about a development, it could be a large development, or it could be something as small as a simple duplex, cutting one block into two. There are various types of developments that you could be undertaking.

It could be a land subdivision where you're just dealing with vacant blocks of land being cut up, it could be dealing with a unit development, either a low rise or a high rise development. It could be mixed use, or we could be talking about a commercial or industrial development.

So there's a number of steps in the process of undertaking a development, and usually the client would look to identify a block of land as the first stage, and that would involve finding the block of land and making some initial inquiries about its suitability for the development.

Then OMB solicitors would come in and help the client get to a contract. So secure the rights to purchase the property, maybe subject to some conditions, some further inquiries or a due diligence, and we would help them through that process whereby we might look into the title of the property to make sure that there's no encumbrances or restrictions on the use of that land for the purpose that the client wants.

Things like contaminants, which could prevent or add substantial cost to a development of that land, and any other such items. So getting the right form of contract would be really important, and then undertaking that due diligence from a legal perspective and assisting the client to make sure that that land will be fit for the purpose for which they want to buy it.

Once we get through that stage and the client determines that is the piece of land they want and it'll be useful for their development, then we'll proceed with the normal transaction of purchasing the property, including financing or any other requirements right through to a settlement of the land.

So that would be what we would consider the first stage of the process, and then the next stage starts to get interesting because, realistically, with that land, we now need to get some development approvals in place to allow the proposed development, whatever that may be.

This will involve the engagement of a number of experts to help with town planning, surveying, and things of that nature. Once the development approval is obtained, we get to the next really important legal stage, which is drafting the documentation which will allow the land or the units, whatever it may be, to be pre-sold.

These are generally referred to as off the plan contracts, and that term generally refers to the pre-selling of property, land, units, whatever it might be, before there actually built and it's quite strict and it's quite detailed what needs to go into these documents, and it's really important that they're done correctly because you're selling a concept or an idea, you're selling something which yet hasn't been built.

So in the case of a unit or a high rise, we're selling a piece of air on a vacant block of land that is going to be turned into a unit and an end purchaser is going to buy.

So the documents really need to be detailed to restrict the seller into building exactly what they've told the end buyer that they're going to build, and there's a lot of protection placed around the buyer in these documents.

So we're drafting these pro forma off the plan contracts and depending on the type of development, they're going to vary greatly, and they're really important documents, as I said, because if we've got a unit development, we're going to need to draw at the same time a community management statement to create a body corporate for the unit.

So in that situation, there's levies, budgets, and the like, exclusive use areas to be drafted in, and there may be caretaking and letting agreements as well if there's management rights involved in that unit complex. For a land subdivision, there won't be necessarily be a body corporate, so we might not need those things, but we're still going to need a very detailed disclosure statement setting out exactly what we're going to develop and the importance of getting these document right, really come at the end of the matter when we're looking to complete those sales.

So we're getting those off the plan contracts drafted with all the associated disclosure documentation is a key component. Once we've done that, the client will then be able to market for sale and execute contracts for the off the plan development, and as part of that, they're entitled to take deposits.

Although those deposits are governed, must be held in a trust account until final settlement. So there's quite a bit of legislation, as I said, governing what must be done on those documents, and if you don't comply, those agreements just won't be binding.

Importantly, the Land Sales Act and the Body Corporate Community Management Act are both quite restrictive in what needs to be in those documents. So the developer has been successful in gaining a number of presale contracts. The development proceeds, building approval is obtained, and the building gets completed.

At that stage, we can assist the client with their respective experts to finalise the plans of registration. When they come out of the local authority, they'll go to the Department of Natural Resources and Mines for registration and a separate title to each of the separate lots is then created.

This is the trigger for the settlement under those off the plan contracts that we talked about and from that point, it's quite frantic to push and usually on a 14 day period or something like that, get each of the buyers to settlement, and this is where the contracts can get tested and it's essential that they were drafted correctly at the outset.

Because quite often if the market conditions have changed, let's say the properties were sold in a strong market, and then the settlements are occurring in a weaker market, some of the buyers may be looking for opportunity not to proceed with those documents.

So it's really important at the early stages to get them correct, and we would then proceed to hopefully settle all of those contracts and complete the development.

So the process, as you can see, is really from a greenfield site to an absolutely completed development on behalf of the client and it's a detailed process along the way, but it's certainly one that we at OMB are familiar with and have helped many clients complete their development successfully over the years.