The Real Estate Law Review: Australia

Introduction to the legal framework

i Ownership of real estate

Freehold title is the prevalent form of ownership for real estate in Australia. Houses, apartments, commercial buildings, farms and vacant land all have freehold title.

Freehold title means that the owner (and their beneficiaries) owns the real estate outright in perpetuity. The owner is free to sell, mortgage and lease the real estate without needing official permission. The owner can gift or leave the real estate by will. The owner is free to build, add to and demolish improvements, provided the planning rules are observed.

Strata title is a specialised form of freehold title that is found in apartment and commercial buildings. The owner has exclusive title to their apartment, townhouse, strata office, strata shop or strata industrial unit, allowing them to lease, mortgage and sell. They are free to make cosmetic alterations but need to obtain permission from the strata owners corporation (or body corporate) to make structural alterations.

Strata title gives an ownership share in what is known as the common property, which means the building, the foyer, the driveways, the garden, the lifts and the stairs. The owners participate in decisions concerning the common property, such as building insurance, repairs and maintenance, and pay strata levies for common property expenses.

Some specialised forms of ownership in Australia are:

  1. Crown leases, which are leasehold titles found in farms and rural properties in remote areas;
  2. community title, which is found in residential developments such as apartments and communities such as retirement villages as an overlay upon freehold title or strata title;
  3. maritime and foreshore leases of 99 years – for land near waterways;
  4. company title, which is found in older residential apartment buildings;
  5. long-term leasehold title, which applies to all real estate in Canberra (the Australian Capital Territory); and
  6. native title, which is found in pastoral and mining leasehold land.

ii System of registration

Ownership of real estate is recorded in the land titles registry, which is a public record. The name of the legal owner of the real estate is recorded on the register, and in some states trusts are also recorded. Also recorded are easements and covenants, mortgages that secure a loan, caveats (claims) and leases of the land. The owner's name, the transfer price and the rental payable on a registered lease are searchable online for a fee.

Every parcel of real estate in Australia has its own certificate of title, which evidences ownership. This idea originated from Robert Torrens who in 1858 introduced the system of recording ownership of real estate in a register and issuing a certificate of title to evidence ownership. This system is known as 'Torrens Title'.

Legislation in Australia confers a state guarantee of good title, known as 'indefeasibility of title', upon the person who is recorded as owner of the real estate at the land titles registry.

iii Choice of law

The law that applies to dealings with real estate is the law of the state or territory in Australia in which the real estate is situated. Every state or territory has its own property law and conveyancing law.

The exception is if the real estate is owned by the Commonwealth of Australia, in which case Commonwealth law (federal law) applies.

Overview of real estate activity

These figures from the Australian Bureau of Statistics paint the picture of a steady real estate market in 2020:

  1. the value of residential dwellings was A$7.283 trillion at the end of the September quarter 2020;
  2. the mean price of residential dwellings was A$689,500 at the end of the September quarter 2020;
  3. prices for residential real estate in the year to September 2020 increased in all but one capital city. Prices rose in Hobart (+6 per cent), Sydney (+5.4 per cent), Canberra (+5.0 per cent), Melbourne (+4.7 per cent), Brisbane (+3.1 per cent), Adelaide (+3.6 per cent) and Perth (+2.4 per cent), and fell in Darwin (-0.7 per cent). Overall, prices rose by 4.5 per cent;
  4. the number of residential dwellings rose by 168,900 to 10,562,800 in the year to September 2020;
  5. seasonally adjusted, the value of total building work done fell by 3.8 per cent in the June 2020 quarter, more for new residential building work than in commercial work;
  6. the value of new lending commitments was up 31.4 per cent for owner occupiers and up 3.9 per cent for investors in residential dwellings in the year to November 2020; and
  7. covid-19 continues to impact residential property transactions in some capital cities, creating strong demand for owner-occupied detached housing, and less demand for apartments.

Foreign investment

The real estate purchase policy laid down by the Foreign Investment Review Board (FIRB) is:

Residential Real Estate
Under Australia's foreign investment framework, foreign persons generally need to apply for foreign investment approval before purchasing residential real estate in Australia.
Foreign investment applications are considered in light of the overarching principle that the proposed investment should increase Australia's housing stock (by creating at least one new additional dwelling).
Foreign persons who purchase residential real estate will be subject to an annual vacancy fee where the property is not residentially occupied or rented out for more than six months in a year.

As a result, purchasers of existing housing stock must have permanent residency status, but up to 50 per cent of the apartments in a new development can be sold to foreign investors without permanent residency or citizenship status. A vacancy fee return must be lodged with the Australian Taxation Office, and an annual vacancy fee is payable (A$5,600 for a property less than A$1 million in value) if the property was unoccupied for more than 183 days during a vacancy year. Vacancy years are unique to each property because each one is 12 months after the occupation day for the property.

Commercial Real Estate
Foreign persons may be required to notify and receive a no objections notification before acquiring an interest in commercial land in Australia. Different rules apply depending on whether the land is vacant or not, whether the proposed acquisition falls into the category of sensitive commercial land that is not vacant, and the value of the proposed acquisition.
Proposed direct interests in an agribusiness generally require approval (with a $0 threshold) with an exemption applying to investors from Australia's trade agreement partners.
Strict criminal and civil penalties may apply for breaches of the law, including disposal orders.

FIRB approvals for commercial properties can take up to six months.

The 2017–2018 statistics are the latest available. In 2017–2018, the number of applications was 11,855, with 11,145 real estate investment approvals at a total value of A$163 billion. Residential real estate accounted for about 90 per cent of the number of approvals, but only about 7.5 per cent of their value.

Structuring the investment

Investors in real estate in Australia have a wide choice of structures and investment vehicles in which to make their investment.

The most popular forms for direct investment are: personal name, a company, a trust or a joint venture. Each have their relative advantages in terms of asset protection, taxation treatment, ease of transacting and disclosure.

The most popular forms for indirect investment are: a listed real estate investment trust (REIT) or an unlisted property scheme or syndicate.

i Personal name

Real estate held in a personal name is exposed to creditors and others who make legal claims unrelated to the real estate. If ownership is shared, the names of all owners are recorded on the title.

Why is it that most Australians own their family home in their personal name despite this exposure? The answer is that the family home (which is used as a main residence) is sheltered from many taxes – the sale proceeds are completely exempt from capital gains tax and no annual land tax is payable. Investment real estate has no such tax exemptions.

No death tax or inheritance tax is payable in Australia.

Transacting is subject to full transfer taxes (known as stamp duty or transfer duty), no matter if it is a family home or an investment property.

ii Company

Real estate held in the name of a limited liability company protects the shareholders and directors of the company from legal claims. The exceptions are director liabilities for personal guarantees, payroll tax and environmental offences. Joint ownership of investment real estate is best in a company structure or a fixed trust structure.

Real estate investment companies pay tax at the rate of 30 cents in the A$1 on profits if they are passive investors. If more than 20 cents in the A$1 of income is 'active' income, then the company may be treated as carrying on a business and the rate will be 26 cents in the A$1 in 2020–2021. The tax paid is able to be distributed as a tax credit against the Australian tax payable by the shareholder. This is called a 'franking credit'.

Transacting is subject to full transfer taxes. Ownership interests are held as shareholdings.

iii Trust

The title to real estate held in a trust is registered in the name of a trustee, which is usually a limited liability company. The trustee is usually able to deal with the real estate in its name, as owner.

There is no income tax payable by a trust because all of the profit is distributed to the trust beneficiaries annually. The tax payable by the trust beneficiaries is according to their own tax position.

If the trust is a fixed trust, such as a unit trust or custodian trust, then the distributions made to the trust beneficiaries are fixed, according to the unit holdings.

If the trust is a discretionary trust, the beneficiaries that receive the distributions and the amounts they receive are at the trustee's discretion. For this reason, a discretionary trust protects the trust assets if claims are made against beneficiaries personally.

Transacting units in a unit trust is restricted, except in an REIT, and follows the rules found in the unit trust deed.

Interests in a discretionary trust are not transacted because the trust beneficiaries have no fixed entitlements, only an entitlement to be considered for a distribution.

Transacting interests in a custodian trust follows the same rules as transacting interests in a personal name.

iv Joint venture

Real estate can be held in a joint venture in any one of three ways:

  1. in the name of a company. If so, it is an incorporated joint venture and the commentary about companies and fixed trusts applies;
  2. in the names of the investors personally, as joint venturers. If so, it is an unincorporated joint venture and the commentary about personal names applies; or
  3. in the name of a nominee company. If so, it is an unincorporated joint venture and the commentary upon trusts applies.

v Property scheme

This description is provided by the Australian Securities and Investments Commission:

A property scheme, also known as a property fund or property syndicate, is an investment where you, and other investors, buy 'units' in an investment operated by a professional investment manager. The scheme's money is invested in property assets which may include commercial, retail, industrial or other property sector assets.
The investment manager selects and buys investment properties and is responsible for maintenance, administration, rental collection and improvements to the properties.
Your money usually stays in the property scheme until it ends, when the properties are sold and the net proceeds are distributed to investors.
You may be able to withdraw your money early but there may be penalties. If the scheme is listed, you may be able to sell your units on the public market.
Depending on the type of property fund you invest in, you might get a regular income (distributions), usually quarterly or half-yearly, and a capital gain on your original investment, if the value of the scheme's underlying investment assets increases.
Some property schemes invest in property development, which means there are extra construction and development risks.

Listed property schemes, known as property trusts or REITs, are property schemes listed on a public market, such as the Australian Securities Exchange. They are easy to value, easy to sell and are subject to listing (disclosure) rules.

Unlisted property schemes have limited liquidity and are less transparent in terms of disclosures to investors.

In terms of taxation, the commentary upon unit trusts applies.

Real estate ownership

i Planning

Planning rules provide the legal framework for the way that land can be used and developed in Australia.

Planning rules are strictly enforced. Illegal development will be subject to 'stop work' orders and demolition orders. For that reason, checking planning uses is a vital part of the conveyancing process for a purchase.

Common planning uses are: residential (general, low density, medium density and high density), rural, business, general commercial, industrial, mixed zoning and environmental. Each use has rules for exempt development (which does not need a permit), complying and permissible development (which needs a permit) and prohibited development.

For built structures, checking building compliance against the Building Code of Australia is an important part of the conveyancing process when purchasing real estate in Australia.

When developing real estate in Australia, complying with the planning rules requires expert assistance from specialists such as town planners, traffic consultants, environmental consultants, land surveyors, civil engineers and lawyers.

Local authorities (local councils) determine applications for development permits or approvals, except for state significant applications, which are determined by the state planning authorities.

ii Environment

Each state has an environmental planning authority that regulates the investigation and remediation of contaminated land to safeguard community wellbeing. The planning and development process determines what remediation is necessary to make contaminated land suitable for use.

Examples of contaminated land are found in localities where heavy industry or intensive agriculture are present, or individual sites that have been used for chemical storage, such as petroleum service stations, and sites with asbestos materials in buildings or in the soil.

If a property is purchased for development, especially for residential development, obtaining an environmental clearance is an important part of the conveyancing process because the contract for the sale and purchase of land will normally preclude the purchaser from making any claim against the seller. The purchaser should request that the contract be made conditional upon the issue of an environmental clearance certificate, at the vendor's cost.

If a property is purchased as an investment, then an asbestos clearance may be appropriate if the improvements were built pre-1980s. Asbestos might be found in loose-fill asbestos insulation in the roof cavities, asbestos lagging around pipes, asbestos roofing and in electrical boards.

iii Tax

Transfer tax, also known as stamp duty, is levied on the transfer of real estate in Australia. It is payable by a purchaser either within a fixed period of time after the contract is entered into, or on completion of the contract.

The rate of stamp duty varies according to the price in the contract for the sale and purchase of the real estate, unless it is a gift or a transfer between related parties, when the rate is according to the market value of the real estate.

The rate of stamp duty varies between the states and territories. Exemptions can apply to first-home purchasers and sometimes to the purchase of new houses and apartments. Duty surcharges apply to foreign purchasers in New South Wales, Victoria and Queensland.

This is a snapshot of the current stamp duty payable:

  1. New South Wales – for an A$800,000 property, the stamp duty payable is A$31,490. An 8 per cent surcharge is payable by foreign purchasers of residential property, which adds another A$63,490. There is no surcharge for commercial property.
  2. Victoria – for an A$800,000 property, the stamp duty payable is A$43,070. A 7 per cent surcharge is payable by foreign purchasers of residential property, which adds another A$56,000.
  3. Queensland – for an A$800,000 property, the stamp duty payable is A$21,850. A 3 per cent surcharge is payable by foreign purchasers of residential property, which adds another A$24,000.

iv Finance and security

Australian real estate is acceptable security for loan finance. Lenders require 'first mortgagee' status, which is that their mortgage is the first ranking mortgage recorded on the title to the real estate. The reason is that in the event of default, the first mortgagee has the right to sell the real estate in its capacity as mortgagee exercising its power of sale. This power of sale is not available to subsequent mortgagees recorded on the title to the real estate.

The availability of loan finance for Australian real estate is governed by three factors:

  1. The status of the borrower. Are they a resident or non-resident? Are they purchasing for owner-occupation or for investment?
  2. Loan serviceability. Australian lenders will only take into account Australian sourced income for meeting loan servicing requirements, and take into account only part of the rent to be received from the property.
  3. The nature of the real estate. Is it residential – a house or an apartment? Is it commercial – a hotel, retail, industrial or office? Is it agricultural – a farm or grazing property, and the water licences? If commercial, what is the remaining term of the lease and the quality of the tenant?

The factors translate into whether or not loan finance is available, the loan-to-value ratio if approved, and the interest rate payable.

Leases of business premises

The main characteristics of leases of business premises in Australia are as follows.

i Term

Typical terms are two, three or five years, with an option to renew for the same term. Tenants with extensive fit outs, such as restaurants, food outlets, retail shops and cafes prefer five-year leases with at least one, if not two, options to renew for five years. The option to renew is exercised at the discretion of the tenant. Demolition clauses are included in leases of buildings that are have redevelopment potential, to enable the lease to be terminated early.

ii Commencement

If a tenant pre-commits to premises in the course of construction, then an agreement for lease is entered into as a precursor to the lease. The agreement for lease often contains the specifications, such as services, air conditioning and configuration, that the tenant requires. The tenant may negotiate a rent-free fit out period or a fit-out allowance. The lease commences when the premises are certified for occupation.

iii Rent

The rent is stated in the lease as either a gross rent (inclusive of outgoings) or a net rent (outgoings are payable in addition to rent). Residential rents are always gross rents (by law). Office rents tend to be gross rents; industrial and retail rents tend to be net rents.

For these purposes, outgoings include council rates, water rates, strata levies, land tax, building insurance premiums, management fees, building repairs and maintenance expenses. Outgoings do not include services costs such as electricity, gas, telecommunications, water usage, waste and garbage removal services supplied to the premises. Services costs are the tenant's responsibility.

Goods and services tax (GST) is added to commercial rent (the current rate is 10 per cent). GST is remitted quarterly to the Australian Tax Office. No GST is added to residential rents.

Some shopping centre leases contain turnover rent clauses. Turnover rent is payable in addition to normal rent, based on a percentage of the turnover once turnover exceeds a specified threshold.

Rent is usually paid monthly in advance. The annual outgoings are apportioned into monthly instalments and are payable along with the rent, if the rent is a net rent.

Typically, rent is increased annually either by the consumer price index or by a fixed percentage, or by the higher of the two. Rent is typically reviewed to market at the commencement of the option term. The lease should contain a 'ratchet' clause, which prevents the new rent from falling below the rent payable for the final year of the previous term.

A rent-free period is often negotiated for the first term, the length of which depends on the tightness of the rental market. It is one month per year in a normal market.

iv Security bond

A cash security or bank guarantee of three month's rent is typical for commercial leases. The amount is to be increased every time the rent is reviewed. Cash bonds are held by the landlord, except retail premises bonds, which are held by a retail bonds board. Personal guarantees are common, although their usefulness is limited either because a lawsuit is needed for collection or because the guarantor becomes bankrupt if the business fails.

v Use

The use is specified either in specific terms such as a cafe, or in general terms such as a warehouse or office. Usually, the use must be approved by the local planning authority. The use cannot be changed without the landlord's consent.

vi Assignment and subletting

The tenant has the right to assign the lease and to sublet the premises, with the landlord's consent. The landlord can require the incoming tenant to have suitable experience and financial resources.

vii Make good

At the end of the lease, the tenant is required to 'make good'. This means that the tenant must hand back the premises in the condition and state of repair that it was handed over to them, fair wear and tear excepted. The tenant must remove their fit out, goods, plant and equipment, and reinstate and repaint the premises.

viii Insurance

The landlord is responsible to insure the building (except in strata properties, where the strata corporation insures the building), for public liability and for fittings. The tenant is responsible to insure for public liability, plate glass (if any) and worker's compensation.

ix Energy efficiency

Owners of commercial office space with a net lettable area exceeding 1,000m² must provide an up-to-date building energy efficiency certificate (BEEC) to tenants before leasing the office space. The Commercial Building Disclosure (CBD) Program requires BEECs to contain a National Australian Built Environment Rating System for offices rating and a CBD tenancy lighting assessment.

Developments in practice

i Tax Clearance Certificates for sale of real estate

When selling Australian real estate, all vendors must obtain a 'foreign resident capital gains withholding clearance certificate' (a Tax Clearance Certificate) from the Australian Taxation Office (ATO) if the sale price is A$750,000 or more. The purpose is to protect the ATO's entitlement to be paid capital gains tax on sale.

The Tax Clearance Certificate is issued as a matter of course to vendors who are Australian residents (for tax purposes) and who have lodged a tax return within the previous two years.

The Tax Clearance Certificate means that the vendor will receive all of the proceeds of sale of a property. Without a Tax Clearance Certificate, purchasers have the obligation to withhold and pay a fixed amount of 12.5 per cent of the sale price directly to the ATO on settlement or closure of the sale.

Foreign resident vendors may apply for a Variation Certificate to reduce or eliminate the withholding tax obligation. They may prove to the ATO that they will make a capital loss on sale; or a capital gains tax rollover applies; or they have carried forward losses or tax losses; or the proceeds of sale available at settlement are insufficient after repayment of the mortgage or other security interest.

ii Purchaser declarations for transfer duty, vacancy charge and land tax

All purchasers must complete a purchaser declaration when buying or acquiring property in Australia.

Information collected through the purchaser declaration is used to meet Commonwealth Reporting Requirements for foreign purchases and to meet the State Revenue Office's responsibilities to administer the Duties Act, including the identification of foreigners for purchaser surcharge duty and land tax surcharge.

The information collected includes:

  1. property details, including if it is residential or commercial, whether it is owner-occupied or an investment property;
  2. transactional information, including the transfer price, contract date and settlement date;
  3. identity information of the vendor or transferor and purchaser or transferee, including name, address, date of birth (for individuals) and Australian Company Number or Australian Business Number (for non-individuals);
  4. nationality and immigration details of the vendor or transferor and purchaser or transferee;
  5. if the purchaser or transferee is the trustee of a trust, information about the trust; and
  6. if the purchaser is a foreign person or a foreign person holds a substantial interest in a trust that is purchasing the property.

The Commonwealth Reporting Requirements relate to foreign investment. The information is provided to the ATO for the purpose of information-matching and ensuring compliance with the taxation laws of the Commonwealth.

Foreign owners of residential real estate are subject to an annual vacancy charge levied by the ATO where the property is left unoccupied for more than 183 days per year. In Melbourne, the state government levies a vacancy tax on vacant homes and apartments of 1 per cent of the land value each year if the real estate is left unoccupied for more than six months in a year.

The Duties Act requirements are directed to raising revenue. The information collected is used to identify whether a foreign purchaser surcharge is payable for transfer tax or stamp duties purposes. The information collected is also used for imposition of the land tax surcharge for foreign owners of residential real estate.

The land tax surcharge for foreign person ownership is 2 per cent in New South Wales. In both Victoria and Queensland, the land tax surcharge is 1.5 per cent and is known an absentee owner surcharge (known as a 'ghost tax'), which is levied on the land value of unoccupied properties. For example, if land tax is levied at the rate of 1.6 per cent on the land value in New South Wales, then the surcharge will mean that land tax is levied at the rate of 3.6 per cent on residential land in foreign ownership. Land tax is levied annually on land values.

iii Tax deductions for inspections and some depreciation no longer available

The ATO does not allow deductions for travel expenses related to inspecting, maintaining or collecting rent for a residential rental property to be claimed for income tax purposes.

The ATO limits deductions for plant and equipment depreciation to outlays actually incurred by investors in residential real estate. Plant and equipment items affected are usually mechanical fixtures or those that can be 'easily' removed from a property such as dishwashers and ceiling fans.

Outlook and conclusions

The outlook and conclusions are well described in the extracts below from the Annual Dinner Address given to the Committee for Economic Development of Australia by Philip Lowe (Governor, Reserve Bank of Australia), held in Sydney on 16 November 2020.

A changed property market
It is a complex picture with the market simultaneously adjusting to: a recession; lower population growth; record low interest rates; substantial government incentives to support residential construction; and changes to the way that people work, shop and live . . . the effects are very uneven across different types of property and across the country.
The effects of the pandemic are most obvious in the market for retail properties in our CBDs, where vacancy rates have increased sharply. Not surprisingly, rents and the capital values of these properties have both fallen. There has also been an impact on the CBD office market, as people work from home . . . In contrast, the markets for industrial property have been stronger, with increased demand for warehousing and distribution facilities as people increasingly shop online.
Many regional centres have been less affected by the virus and some are experiencing increased demand as people work remotely and look for property outside the big cities.
The residential market is also a mixed picture. In most cities – especially Sydney and Melbourne – rents for apartments are falling, while rents for houses are generally rising. The apartment markets are more affected by the lower population growth and fewer foreign students and by young adults staying at home with their parents. There has also been an increase in demand for houses as people work from home.
To conclude, 2020 has been a year of great change and disruption.2

Footnotes

1 Anthony J Cordato is the principal at Cordato Partners Lawyers.

2 https://www.rba.gov.au/speeches/2020/sp-gov-2020-11-16.html.

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