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Australian Property Law Bulletin - April 2008 (Vol 22 No 8)

Australian Property Law Bulletin - April 2008 (Vol 22 No 8)

In the April issue: Beware when interpreting restrictive covenantsBy Jodie Masson and Jane Park, MIDDLETONSLawyers should beware of the relationship between private covenants and planning…

In the April issue:

Beware when interpreting restrictive covenants

By Jodie Masson and Jane Park, MIDDLETONS

Lawyers should beware of the relationship between private covenants and planning legislation such as the Environmental Planning and Assessment Act 1979 (NSW) (the EPA) when interpreting private restrictive covenants. This was demonstrated in the recent decision of Jessica Estates v Lennard. The case is also of interest as it reminds lawyers of the circumstances in which courts will order specific performance in relation to breaches of private covenants.

A review of unconscionable conduct in retail leases

By Tom Griffith, PIPER ALDERMAN

Cases in which applicants have successfully made out claims of unconscionable conduct in relation to the Retail Leases Act 1994 (NSW) are rare. This article discusses two recent cases in relation to unconscionable conduct and retail leases.

What is a caveat for?

By Tony Wilson, FREEHILLS

While there is protection for retail shopping leases in the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) for a maximum period of five years, a failure to protect a lease for a longer period, or any option to renew contained in a lease, may result in the destruction of the leasehold interest and the option to renew by the subsequent registration of a transfer of the freehold title. There is a school of thought among some property practitioners in Perth that the only certain way to protect leases for periods longer than five years is to register them. This article explains why this argument cannot be sustained.

Payment of deposit to seller prior to completion: a risky business

By Prof W D Duncan and Prof Sharon Christensen, QUEENSLAND UNIVERSITY OF TECHNOLOGY

The recent decision of Phillips v Scotdale considers two very important issues for Queensland conveyancing. The first issue concerned the application of instalment contract provisions in Div 4 of the Property Law Act 1974 (Qld) to the contract. The second was whether or not a condition requiring payment of the deposit to the sellers, prior to completion offended the Property Agents and Motor Dealers Act 2000 (Qld) to the extent that the provision itself might be illegal and void, having been severed from the contract. Together, they form a cautionary tale.

Planning reform in the ACT: implementation of the Planning and Development Act

By Pria O'Sullivan and Kelly Casey, MINTER ELLISON

From 31 March 2008, the Planning and Development Act 2007 (ACT) (the Act) in conjunction with the revised Territory Plan, has replaced the Land (Planning and Environment) Act 1991 (ACT), the Planning and Land Act 2002 (ACT) and the existing Territory Plan. This is an overview of the significant changes to planning and development in the ACT which the new legislation effects.

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