Kellehers’ understanding of complex property law coincides with, and deepens its fields of specialisation in planning, local government and environmental law.
Complex property law forms part of our all round land-based expertise available as a service of excellence to our clients.
Achievements in Complex Property Law:
Caveats
- Advice on existence of a caveatable interest in land, often urgent, including in respect of:
- caveats against dealings under section 89(1) of the Transfer of Land Act 1958 (Vic) and to secure against possessory title, surveying error and other unusual title risk;
- protection of restrictive covenants and easements, protection of fee simple rights in roads;
- ‘reasonable cause’ to lodge and maintain a caveat after lodgment;
- action to successfully remove a caveat.
Land acquisition and compensation
- Complex advice on locational decisions, compensation, and the assessment of enhancement to land by virtue of the proposed public purpose and, where necessary, appointing, briefing and liaising with consultant advisory team.
- Valuation law and liaison with valuer to maximise compensation payout.
- Successful litigation and mediation of substantial compensation claims.
Adverse possession
- Successful complex adverse possession claims including cooperating with witnesses to secure necessary declaration evidence.
- Resurvey evidence under section 271 Property Law Act 1958 (Vic) impacting Crown land.
Restrictive covenants
- Creation of restrictive covenant agreements, including unusual covenants providing for routine development infrastructure.
- Variation and removal of restrictive covenants by planning permit, planning scheme amendment and Supreme Court action.
- Construction, interpretation and enforcement of covenant terms and drafting terms of restrictive covenant.
- High value settlement of restrictive covenant negotiations with windfarm developer.
- Taxation implications of covenant agreements and drafting covenant wording to optimise taxation outcome.
Easements
- Advice on acquisition and abandonment of easements by long user, including against Crown land.
- Defence against Supreme Court application to remove restrictive covenant.
- Advice on party wall, carriageway and statutory easements.
Owners corporations
- Conveyancing of strata, stratum and company share title land.
- Negotiating and drafting licence to occupy airspace over Council land.
- Enforcement of model rules requirement to ‘repair and maintain’ common property.
- Informal owner or occupier licence arrangements in respect of car parking and open space and related lot entitlement issues.
- Building and construction defects within owners corporation assets and owners corporation insurance cover.
- Litigation and mediation of disputes between owners corporation members and with owner corporation management relating to noise, privacy, water leakage, parking, access.
- ‘Second opinion’ advice to allotment owners on the context of repair and remediation litigation, including delays and timelines being undertaken by owners corporation.
Building
- Complex applicant submission to Building Appeals Board concerning validity of Protection Works Notice issued by Building Surveyor.
- Successful costs application and significant award of costs against Building Surveyor where Protection Works Notice invalidly issued.
- Review and advice on application of siting and design rules under the Building Regulations 2018 (Vic) in respect of construction undertaken without planning permission.
- Successful s 87(1) Building Act 1993 (Vic) appeal to determine the appropriateness of protection work.
- Review and negotiation for adjoining owners following receipt of Protection Works Notice to obtain appropriate protection work in Building Surveyor’s subsequent determination.