Property law deals with the legal rights and interests in property, governing the various legal relationships that arise between individuals and their property. These relationships include ownership, possession, use, transfer and property regulation. Continue reading this Legal Kitz blog for further information on property law in Australia.
What is property law in Australia?
Generally, property law governs three main areas of property: real property, personal property, and intellectual property. Real property refers to land and anything permanently attached to it, including buildings, trees, or fixtures. Personal property includes any assets that are movable including cars, jewellery and furniture. Intellectual property refers to any intangible assets such as patents, trademark, and copyrights. In Australia, property law is governed by both common law (court decisions) and statutory law, which is legislation passed by the government.
There are several issues with property law that may arise including:
- Disputes over ownership or conflicting claims to a piece of property: this often occurs when the property is sold or transferred without a clear title or when there are competing claims from heirs or beneficiaries.
- Zoning and land use regulations: regulations determined by local and state governments, which are subject to frequent changes and updates, can affect a property’s owners rights to use and develop their land.
- Environmental concerns: contamination of soil or groundwater, as well as the need to comply with environmental regulations. These issues create additional costs and liabilities for property owners, particularly in cases where contamination from past owners was present.
- Eminent domain: eminent domain is the power of the government to take private property for public use, subject to just compensation. It is often controversial and raises questions about the scope of government power and individual property rights
What legislation governs property law in Australia?
The legislation governing property law differs from state to state:
- Queensland: Property Law Act 1974
- New South Wales: Real Property Act 1900
- Victoria: Property Law Act 1958
- Northern Territory: Law of Property Act 2000
- South Australia: Law of Property Act 1936
- Western Australia: Property Law Act 1969
- Tasmania: Conveyancing and Law of Property Act 1884
- ACT: Civil Law (Property) Act 2006
What is private and public law?
Private law
Refers to the legal rules that govern the relationship between individuals or private entities, rather than between individuals and the government. Private law disputes are typically resolved through civil proceedings in the court, rather than through criminal proceedings in court.
Public law
Refers to the legal rules that govern the relationship between individuals and the government or other public entities. Public law disputes are typically resolved through administrative or judicial proceedings and may involve the exercise of government power or protection of individual rights against government action.
Is property law considered public or private?
Generally, the ownership of property is regarded as a private matter that is governed by private law, including contract and tort law. Ultimately, this means that disputes over property rights are generally resolved through civil proceedings in the courts, rather than criminal law.
However, there are also various aspects of property law that are considered public law in Australia. For example, government acquiring property from individuals for public purpose, such as building roads or facilities (process known as compulsory acquisition). Additionally, zoning and land use regulations are often determine by local and state governments which may affect property owners’ rights to use or develop their land.
Overall, while property law in Australia is primarily governed by private law, there are important public law aspects to consider as well.
Legal advice
If you require further assistance or advice regarding property law issues, you can always contact Legal Kitz to assist you. To request a FREE 30 minute consultation with one of our highly experienced solicitors contact us at [email protected] or 1300 988 954.