(03) 9720 2922

Jansen Walsh and Grace


 


What we do

Our firm has 37 years’  experience in acting for property developers and mortgagees, mainly with subdivisions of 7 or more lots.  We can advise you whether you have a large subdivision with several owners corporations or just a dual occupancy.


Some of our developer clients split the function between their development company and their treasury company, which holds the real estate, in order to insulate the property from the development risk.


The following is a guide to topics you may need to consider.  Some of them may not apply to your property development, of course.




Structuring the development

Some of our developer clients split the function between their development company and their treasury company, which holds the real estate, in order to insulate the property from the development risk.  Another option is to structure the revenue to flow to a family trust.


Deed of partition or joint venture

If you are undertaking the property development with an owner, a co-owner or a builder-developer or in a joint venture, you will usually require a partition agreement, a joint venture agreement, a class trust or a unit trust.  This is absolutely essential for tax purposes.  We can prepare and draft the partition agreement or joint venture agreement for you. Some developers split the function between their development company and their treasury company, which holds the real estate, in order to insulate the property from the development risk.



Financing your project

If you need finance for property development, we may be able to help you in two ways.  We can help you procure funding or refinancing from our private lenders.  Alternatively, you can raise all or part of the development costs through an offer seeking funds from investors either by the issue of shares, the issue of units or an interest.  We are here to advise on the best method.





Restrictive covenant
We act for developers who purchase properties which contain a restrictive covenant which prohibits the development. Obviously, you factor in the cost to remove or vary the restrictive covenant in the price you pay.

We can make an application to the Supreme Court under section 84 of the Property Law Act 1958 or, if applicable, to the responsible authority under subsection 60(2) of the Planning and Environment Act 1987, to remove the covenant and allow your development to proceed.
 
   

 
Using the vendor's plans
For many years, based on the decision of the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, developers assumed that where they bought property that has the benefit of a consent, the developer could expect to have the right to use the architectural plans and drawings which formed part of the consent, unless the licence which would be implied was expressly negated in the original agreement.

However, in Tamawood Ltd v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed), the developer engaged a company to prepare plans for the planning permit. It received planning permission.  It used an architect to prepare the building plans.  These were generally in accordance with the plans which had received planning approval. The Full Court of the Federal Court held that the developer was liable for damages for infringement of copyright.

So, don't assume that you can use the vendor's plans and drawings or have them varied or chan
ged by your own architect
 
   


Planning permit
Most subdivision applications involve three stages: an application under section 47 of the Planning and Environment Act 1987 to the responsible authority (usually the municipal or shire council) for a planning permit to subdivide the land and an application for certification under section 5 of the Subdivision Act 1988 and a statement of compliance under section 21 of the Subdivision Act 1988.   You will need to engage a licensed surveyor.  We can provide you with advice as you progress through the three stages:
1.  the planning permit for subdivision;
2.  certification; and
3.  the statement of compliance.

   
   
 
Agreement under section 173 of the Planning and Environment Act 1987
A Section 173 Agreement is a planning agreement.  The council often requires a Section 173 Agreement under the Planning and Environment Act 1987 to be registered on the title to ensure that any development on the property takes place only in accordance with the planning permit. The Section 173 Agreement is prepared  by the council’s lawyers.  We will advise you on the impact of Agreement.

The Agreement also requires the consent of your lender, the mortgagee, which we organise.
 


 
Planning appeal
Someone may lodge an objection to your plan with the council.  The council may decide not to make a decision or reject your application. Alternatively, the council may have imposed onerous and unnecessary requirements.

In those circumstances, you must lodge an application in the Planning and Environment List of the Victorian Civil and Administrative Tribunal.  We can appear for you before the Tribunal as we understand the planning process and overlays.


Building permit
Some developers sell vacant land off the plan. If you are selling a dwelling, such as an apartment, unit or townhouse, you will have to get a building permit from the responsible authority.


Registered builder
Most of our developer clients are either builder-developers or have entered into a joint venture with a registered builder. Otherwise, you will have to engage a registered builder.  If you wish to be an owner-builder, you must get a certificate of consent from the Victorian Building Authority before carrying out domestic building works over $16,000; use registered builders for work over $10,000 or to reblock, restump, demolish or remove a home, regardless of the value of this work; and ensure any builder engaged for work over $16,000 has appropriate domestic building insurance.  
   
 
 
Consent of mortgagee
If there is a mortgage registered on your titles, you will require the consent of your lender to registration of the Plan of Subdivision.  All lenders charge a fee to provide their consent.

We will arrange for you to sign a consent to enable nomination of the title to Land Use Victoria at the appropriate time.  After registration, Land Use Victoria will give electronic control of the new titles to your lender.
 

   

 
Preparation of application for registration of the Plan of Subdivision
We will advise you on and draft the section 22 application for registration of the Plan of Subdivision based on the SPEAR plan from your surveyor for the issue of new titles by Land Use Victoria.

If the new titles are to have separate owners, we have to do a NICO application with separate transfers.
 


 
 
Owners corporation
If there is to be an owners corporation, we will prepare the owners corporation documents which will enable creation of the owners corporation on registration of the Plan of Subdivision.  This may involve issues such as insurance, model rules, special rules, limitations on the owners corporation’s liability and the provision of any additional information which may be required by Land Use Victoria.  It may also involve calling the inaugural general meeting of the new owners.  We can prepare the notices, and convene, chair and minute the inaugural general meeting and set up the owners corporation records.
 
   
   
 
After registration
After lodgment and examination, the Plan of Subdivision is registered and the new certificates of title issue.

If you have a mortgage, Land Use Victoria will give electronic control of the new titles to your lender, in which event we need to do a title search for you to confirm that they have been issued.  If you do not have a mortgage, Land Use Victoria will give us control of the new titles.

 
   

 
FUNDING YOUR PROJECT THROUGH SALES

Sale of subdivided properties 
You may be funding all or some of the project costs with borrowings.  If so, it is useful to have Contracts of Sale in place to sell the lots.  This will encourage the lender to lend you funds or investors to invest in your development.

Off-the-plan Contracts of Sale customised for your development 
You should use a custom-made off-the-plan Contract of Sale when selling off-the-plan rather than relying on a basic Contract of Sale with two special conditions.  Our Contracts of Sale are customised to your development and provide you with greater protection when you are selling off-the-plan.  We can prepare an off-the-plan Contract of Sale and Vendor Statement for each lot in order to enable you to sell them before registration.

"The purchasers have paid their deposits. Can I have the deposits now?"
Developers usually need the deposits from the sales to fund their development.  Unfortunately, the deposits cannot be released before registration of the Plan of Subdivision.

GST withholding tax on new properties
A new GST withholding regime comes in on 1 July 2018.  The GST on almost all contracts for the sale of “new residential premises” or “potential residential land included in a property subdivision plan” will be withheld by the purchaser.  The idea is that the purchaser will remit it to the Commissioner of Taxation.  This will adversely affect the cashflow of property developers who are selling new properties.    You will be entitled to a GST credit for an amount withheld by the purchaser from the contract consideration, but only if and when the purchaser pays the withheld amount to the Commissioner.  In order to protect you from fraudulent purchasers who may fail to remit the GST, our Contract of Sale has two alternative mechanisms to ensure the purchaser actually pays the GST to the Australian Taxation Office promptly so that you can claim a credit.

The purchaser will have to pay one-eleventh (or 7% for margin schemes) of the sale price to the Australian Taxation Office where settlement of a Contract of Sale of land which occurs on or after 1 July 2018, even if the contract was entered into before that date, but subject to the exception for existing contracts entered into before 1 July 2018 where settlement takes place before 1 July 2020.

Vacant Residential Property Tax
If the properties you are selling off-the-plan are located in the municipalities of Banyule, Bayside, Boroondara, Darebin, Glen Eira, Hobsons Bay, Manningham, Maribyrnong, Melbourne, Monash, Moonee Valley, Moreland, Port Phillip, Stonnington, Whitehorse and Yarra, and have have any unsold properties, you may be liable to Vacant Residential Property Tax on the unsold properties. Vacant Residential Property Tax is levied on dwellings in those municipalities that are vacant for more than a total of 6 months in a calendar year.

Renting unsold properties
Some developers rent out unsold properties.  If you do, this will trigger GST issues for you when you have to lodge your BAS statement.

   
   
OTHER WORK WE DO RELATED TO SUBDIVISIONS 
   
Alteration to subdivision
We can assist you if you require an alteration to an existing subdivision.  
   
 
Removal or variation of Section 173 Agreement
We can assist you if you require removal or variation of a restriction in a registered Section 173 Agreement.  This is usually with the responsible authority or service authority.
 
   
NICO (not in common ownership)
We can assist you if you require a NICO (not in common ownership) plan. This occurs where you are subdividing plan with a co-owner developer or you are acquiring land from an adjoining owner.
 

   
Removal of easement or right of way 
The property may have an easement or right of way.  We can only remove certain types of easements by an application to the Supreme Court unless it is a section 173 easement or a variation of an easement to a service authority.
   

 
Adverse possession
You have acquired property by adverse possession, or you may need to resist a claim.
 

Building envelope
The danger of embarking on renovations outside the permitted building envelope without a variation or modification is illustrated by the decision of the Supreme Court in 
Manderson v Wright (No 2) [2018] VSC 162.  The owner was prohibited from developing her property other than in accordance with an approved neighbourhood design plan pursuant to the planning permit issued for the subdivision.  The owner had carried out $1 million building renovations outside the building envelope.  Dixon J ordered that the building structures outside the building envelope be demolished and ordered her to pay the plaintiff's costs, which were considerable.

We also encounter many people doing the process themselves without a surveyor or an architect or a planning lawyer ("I just rang the Council.  It seemed easy") without legal advice, and finding after they have paid the fees that they have to start again at the beginning.


Consolidation or re-subdivision of owners corporation
We can assist you if you require the consolidation or re-subdivision of an existing owners corporation.


The information in this website and the links provided are for general information only and should not be taken as constituting professional advice from Jansen Walsh & Grace.  You should consider seeking legal, financial, taxation or other advice to check how the information on our website relates to your own circumstances.  Jansen Walsh & Grace are not liable for any loss caused, whether due to negligence or otherwise arising from the use of, or reliance on, the information provided directly or indirectly, by use of our website.

  

The purchaser will have to pay one-eleventh (or 7% for margin schemes) of the sale price to the Australian Taxation Office where settlement of a Contract of Sale of land which occurs on or after 1 July 2018, even if the contract was entered into before that date, but subject to the exception for existing contracts entered into before 1 July 2018 where settlement takes place before 1 July 2020.  The vendor is entitled to a GST credit for an amount withheld by the purchaser from the contract consideration but only if and when the purchaser pays the withheld amount to the Commissioner.