Developing property can be profitable but involves risk. There are numerous legal and practical considerations and a matrix of rules and regulations to navigate.
Our lawyers have expertise in property and planning law, conveyancing, contracts, and commercial law, bringing you the legal and practical advice necessary for your next development. We can advise on:
- site acquisitions and due diligence;
- sale and purchase agreements;
- put and call option agreements;
- structuring and finance;
- building development agreements;
- community title;
- construction contracts.
Subdivision involves the partition of land into smaller parcels. A separate legal title for each new lot is created which can be separately sold and transferred. Subdivisions can range from the division of a single lot into two, to the creation of many lots in a large residential or mixed-use development.
Land subdivision is governed by legislation, regulations, planning schemes and policies administered by local councils and other government bodies. Subdivision developments are complex, and it is important to understand the overlap of the relevant laws, and the many boxes to tick for each project.
Liaising with local councils and other bodies to ensure appropriate planning permits are obtained can be complex and time consuming. Retaining experienced professionals to check off due diligence matters, liaise with authorities, prepare technical documentation, and explain titling and legal concepts is invaluable during this process.
Building Development Agreements
Various legal arrangements, such as joint property ventures, can be used when developing property. A building development agreement documents these arrangements and sets out the participants’ respective contributions, rights, and responsibilities; allocates risk appropriately; and deals with taxation, duty and other financial matters. These agreements should be prepared and negotiated by an experienced property lawyer.
Most property developments are financed by a lender, which usually requires the granting of a mortgage or other securities to the lending institution. Developers should be appropriately advised when negotiating finance to ensure they are aware of the terms of the loan agreement and how it may affect different stages of the development.
It is essential that company directors providing personal guarantees under financing arrangements are independently advised.
Before purchasing property for development purposes, due diligence is carried out to ensure it is appropriately zoned and can be developed as intended. Easements, covenants, and restrictions should be analysed to ensure they do not pose significant obstacles to the proposed development. Your property lawyer will usually recommend a range of searches and enquiries before committing to a contract.
Contracts for off-the-plan purchases
Off-the-plan purchase contracts must be drafted to ensure profitable project delivery and to address contingencies and unforeseen events. Completion dates, sunset dates and termination clauses must be carefully considered to provide maximum protection for a developer whilst complying with consumer protection provisions, disclosure requirements, and other laws applicable to off-the-plan sales.
An option deed is an agreement to buy/sell a certain property within a specified time and on specified terms and conditions. They are often negotiated between landowners and property developers.
Buying under an option agreement enables developers to secure a price for land for future development while they arrange finance and carry out due diligence, before committing to the purchase. An option arrangement can give a landowner control over the timing of the sale. They should include a range of conditions to balance the parties’ respective rights and accommodate their objectives and circumstances.
Working with professionals
Property development can be profitable but is not without risk. It is complex and requires an understanding of many interrelated areas of law. With so much at stake and the potential for the smallest mistake to become a major roadblock, it is important to obtain sound professional advice from the beginning.