Glossary | ||
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PARKING EASEMENT | |
| Parking Easement: means a right for a person authorised to do so to park a vehicle over specified parts of another persons land. | |
PART V AGREEMENT | |
| Part V Agreement:
More correctly Part V of the Land Use Planning and Approvals Act 1993.
Covenants on a title can only be negative in nature; that is “not to remove trees from…..” since 1993 it has been possible to enter into agreements with council and other parties that are both positive and negative in nature. These may require the land owner to act in a certain manner when it comes to house colours, bush land maintenance and the like. A failure of the system is that Part V Agreements are not available for viewing at the Lands Titles Office but at the local Council. They are, however, referred to on the front sheet of a title document that they apply to.
SIMPLY: a registered agreement binding the property owner to behave in a certain manner. HOW WE ASSIST: we can search such Part V Agreements and advise you of their effect on your enjoyment of your title. | |
PARTY WALL | |
| Party Wall: means a wall that straddles a boundary between two properties where express rights of support have been granted and reserved between the two affected property owners. SIMPLY: This means that the wall in fact 'belongs' to each owner adjoining with the boundary between the two properties running through the material of the wall. It also means that one cannot 'work' or demolish the wall without consideration of the rights of the other owner HOW WE ASSIST: We can advise of the actual location of the boundary passing through the wall and the requirements if one party is considering upgrading, repairs or alterations to the wall. | |
PASSED IN | |
| Passed In: If a property is not sold at auction because the owner's reserve price has not been reached, it is said to be "passed in". The highest bidder usually then has first option to purchase at the owner's reserve price. It is then possible to negotiate for the purchase, either on the same day or afterwards. Properties passed in are often sold shortly afterwards at a price close to the passed-in-figure. | |
PERMIT | |
| Permit: means an approval or consent required by a planning scheme and granted by a local council in respect to the use or development of land. SIMPLY: A permit relates to an approval by a Council for a specified development. Note that a Subdivision Permit does not give approval for a Building that would normally require a Building Permit. Note also that with a Subdivision Permit you have 14 days to lodge an appeal against a condition of the permit: "Your attention is directed to your rights of appeal under Sections 61 & 62 of the Land Use Planning and Approvals Act 1993 (as amended), that relates to appeals. These provisions should be consulted directly, but the following provides a guide as to their contents. Planning Appeals shall be instituted by lodging of a notice of appeal with a Clerk of the Resource Management and Planning Appeal Tribunal. Planning Appeals shall be instituted within the 14 days of date the corporation who served the notice of the decision on the applicant. HOW WE ASSIST: We can advise on the appeal system and lodge the appeal on your behalf. We can also provide access to any necessary expertise that may be required to assist your appeal. | |
PETITION TO AMEND | |
| Petition to Amend is the term loosely given to the process of amending a sealed plan. SIMPLY: A sealed plan can only be amended by the local Council that sealed it. A person who wishes to amend a sealed plan (including the amendment or deletion of boundaries, easements, covenants, notations or any other detail on the plan) must make a petition to Council setting out the terms of the amendment being sought. Because a sealed plan is a primary conveyancing document Council must serve notice upon, and hear any subsequent objections from, any other persons who would be affected by the proposed amendment. Once Council is satisfied all affected persons have been heard, it may cause the amendment to be made with or without further modification. Council then notifies the Recorder of Titles of the amendment and the sealed plan and any other relevant title documentation is amended by the Recorder accordingly. Effectively this means that if you wish to amend a subdivision plan created under Council Approval, it is necessary to obtain the consent of all affected parties; usually ALL the owners of the lots on the plan + their mortgagees. Sometimes Council is the only affected party, such as with an amendment to an Easement to Batter. HOW WE ASSIST: We can advise you on the issues that may arise when dealing with a Petition to Amend relating to your particular title. | |
PLANNING SCHEME | |
| Planning Scheme: means an instrument (document) prepared for a local council and subsequently approved by the Land Use Planning and Review Tribunal that makes provisions (sets rules) that relate to the use, development, protection or conservation of any land in the area covered by the Planning Scheme. | |
POSSESSION DATE | |
| Possession Date: The date the purchaser physically takes possession of the property. Most often, it is the same as settlement date. | |
POWER OF ATTORNEY | |
| Power of Attorney is a legal arrangement where a person (the donor) appoints one or more people (the donee/s) to conduct and manage the donor’s affairs. The power may be given for a specific task, or a defined period in time, or it may be for all purposes and for all time. The document must be registered with the Recorder of Titles before conveyancing documents can be executed by a donee on behalf of a donor. a donor may end the arrangement by revoking the appointment. SIMPLY: You may appoint someone to ‘sign’ on your behalf and revoke this appointment when you so desire. HOW WE ASSIST: We can direct you to the right professional to advise you and assist in preparing such a ‘power’. | |
PRICE | |
| Price (Purchase Price): In the case of real estate, the money consideration which is expected or given in exchange for a property. | |
PRINCIPAL | |
| Principal: See Agent. | |
PRIORITY NOTICE | |
| Priority Notice: means a notice lodged with the Recorder of Titles by a person authorised to do so that reserves that person priority of document registration on a title for up to 60 days SIMPLY: When a surveyor or solicitor or like profession 'searches' a title to give advice, they take responsibility for that advice that is based on the title search as of that date. A Priority Notice advises that a matter relating to that title has been lodged, awaiting registration and that that matter has priority over any other dealing for 60 days. For example, when one purchases a house, their solicitor will lodge a Priority Notice on the title of the house under purchase so that the vendor cannot sell to others, create an easement or raise finance or similar; the Priority Notice gives preference to the sale first (for 60 days). HOW WE ASSIST: We carry out title searches on behalf of clients and in fact can provide them over the net. Engage Us to purchase your title. We can advise of any lodged Priority Notices. | |
PRIVATE ROAD | |
| Private Road: means a way that is not subject to use by the public as of right. SIMPLY: Means a private driveway (that may look like a road) that is for private use only. Note that in general the word 'Road' means Public Road, whereas the general public often use the word 'road' to mean a driveway or way, when such is often 'Private Road' . HOW WE ASSIST: We can advise on the status of a road or driveway to ensure compliance with the above. We can determine the boundaries of such a road or drive. | |
PRIVATE TREATY SALE | |
| Private Treaty Sale: A sale negotiated between a seller (vendor) and a buyer, usually, but not necessarily, through in estate agent, and distinct from a sale by auction. | |
PROCLAMATION | |
| A Proclamation could be recorded on a land owner's title prior to 1993 and was a public notice that an authority, usually the crown, intended to acquire part or all of the land for a public purpose. A proclamation notice may remain on a title even though the various land resumption and acquisition acts that initiated them were repealed in 1993. The Land Acquisition Act 1993 uses notices rather than proclamations when land is to be acquired. | |
PRODUCTION SLIP | |
| Production Slip:
Is the ‘receipt’ given to the lodging party when a title is lodged at the Lands Titles Office to support a dealing, such as a subdivision. The Lands Titles Office will not accept documents from the surveyor for new title creation unless a Production Slip is attached. Quite often is a source of delay as the acting solicitor requests the holder of the title (normally a bank) to lodge the title; such request usually takes 3 weeks to enact and therefore results in a 4 week delay to proceedings.
SIMPLY: is a receipt when the title is lodged at the titles office. HOW WE ASSIST: we prompt the solicitor ‘early’ in the proceedings to lodge the title asap. | |
PROFESSIONAL DUTY | |
| Professional Duty: The duty of care owed by a professional person to his or her clients. | |
PROFESSIONAL NEGLIGENCE | |
| Professional Negligence: The failure of a professional person to properly exercise a duty of care, usually leading to a loss suffered by a client or customer of the professional person, or them being placed in a worse situation than if the professional person had acted correctly. | |
PROPERTY MANAGEMENT | |
| Property Management: The business usually conducted by an estate agent composed of leasing of property, collection of rents, selection of tenants and generally the overall maintaining and managing of real estate properties for clients. | |
PROPOSAL PLAN: | |
| Proposal Plan:
is a plan prepared to support an application to council to subdivide or develop a parcel of land. Is prepared from a combination of existing documents and field survey if necessary. The surveyor will always attempt to keep the cost of this section of your instruction to a minimum but he is also responsible to ensure that sufficient information is provided to council to allow an informed decision to be made. This is the reason why some Proposal Plans cost significantly more than others. It is always best to undertake at a minimum a field check of the compiled data, and quite often cost effective to undertake a Detail Survey . This information then forms the basis of any engineering design required to satisfy Permit Conditions . Proposal Plans carry the disclaimer:
SHOULD THIS PLAN BE UTILISED FOR CONTRACTUAL PURPOSES FINAL SURVEY DIMENSIONS SHALL PREVAIL. THIS PLAN HAS BEEN PREPARED ONLY FOR THE PURPOSE OF OBTAINING PRELIMINARY SUBDIVISION APPROVAL FROM THE LOCAL AUTHORITY AND IS SUBJECT TO THAT APPROVAL. ALL MEASUREMENTS ARE IN METRES AND SQUARE METRES UNLESS OTHERWISE STATED AND ARE SUBJECT TO FINAL SURVEY. DO NOT USE THIS PLAN FOR BUILDING DESIGN OR ANY OTHER PURPOSE APART FROM OBTAINING PRELIMINARY SUBDIVISION APPROVAL. NOTE: TO BE DEVELOPED IN STAGES WHERE POSSIBLE. SIMPLY: is a plan prepared to give council the general concept of the proposed development. Is not a final survey and quite often reflects boundaries in a general manner only. HOW WE ASSIST: we prepare Proposal Plans on you behalf. | |
PUBLIC HEALTH APPROVAL | |
| Public Health Approval:is a term referred to in some old Planning Schemes and related to the obtaining of approval for an effluent disposal system. Usually related to those Council's that did not have the 'power' to handle such approvals themselves; ie they did not have deligated power from the Public Health office. Nowadays can be read as Council Health approval. SIMPLY: An old term that can now be read as Council Health Approval. HOW WE ASSIST: We can organise the necessary consultant to handle the obtaining of approval for any effluent disposal system. Contact us for advice in relation to these matters. | |
PUBLIC OPEN SPACE OR POS | |
| Public Open Space: means land set aside, usually as part of a planning permit, for public recreation or public gardens or for similar purposes of public pursuit. SIMPLY: Subject to the comments below, when large scale developments are undertaken Council's have certain rights in relation to 5% of the land being set aside for Public Open Space purposes. They also have the right to request that instead of land being given 5% of the value of the land is to be paid to Council. This is often the case with small subdivisions where 5% of a small lot is of little use to Council.This usually forms part of the Permit. It is State Government Legislation and not as commonly thought a Council whim. Council's do have the discretion to apply it or not; most do. On small developments it can be one of the bigger costs. The following rules apply when making a Subdivsion Submission to Council: NO OPEN SPACE SHOWN ON PROPOSAL CASH IN LIEU WANTED: Where no open space is shown on a proposal, council as a condition, can require cash in lieu if it is of the view that the subdivision gives rise to the need for the provision of open space NO OPEN SPACE SHOWN ON PROPOSAL LAND WANTED: Where council have formed the view that the proposal will give rise to the need for public open space that is not provided in the proposed subdivision and they are of the opinion that LAND should be provided, their only option is to REFUSE the subdivision on the grounds that the proposal should be altered to include public open space OPEN SPACE SHOWN ON PROPOSAL CASH IN LIEU WANTED: Where council have formed the view that the public open space provided in the proposed subdivision does not suit the public convenience or there is no other means of providing public open space which would be of public benefit, their only option is to REFUSE the subdivision on the grounds that the proposal should be altered to omit public open space OPEN SPACE SHOWN DIFFERENT LOCATION WANTED: Council may, in lieu of the public open space set out on the proposal plan, ask that the final plan contain 'the area set out in the plan annexed' as public open space and further advise that the subdivider is to sell that area to the Council for the sum of $1.00 and further the subdivider is to execute a transfer of the land in favour of the Council immediately upon the issue of titles OPEN SPACE SHOWN ON PROPOSAL EXTRA LAND WANTED: Council have the power to ask for extra public open space but must pay for that in excess of 5% OPEN SPACE LESS THAN 5% SHOWN ON PROPOSAL Council have the power to ask for the difference between the area shown on the plan as public open space (if it is less than 5%) and 5%, to be paid as cash in lieu COUNCIL CAN'T DELETE POS AND ASK FOR CASH IN LIEU It is not possible for a council to impose a condition on a permit approving a plan of subdivision which deletes public open space provided in the plan and then to require a contribution of cash in lieu of public open space by a further condition COUNCIL TO ESTABLISH A NEED It is not enough that council has a policy requiring contribution, it must make an individual assessment of each subdivision, it must form the view that the subdivision will give rise to a need ADHESIONS PUBLIC OPEN SPACE SHOULD NOT BE ASKED FOR: In general terms, unless a new lot is being created, it is hard to see how a Council could bona fide come to the conclusion that the plan of subdivision created an additional need for public recreation space such that such space should be included(or cash in lieu). GENERAL COMMENTS POS: HOW VALUED: VALUE IS BASED ON THE VALUE OF THE NEW LOTS CREATED LESS DEVELOPMENT COSTS eg. If 6 lots are created out of 1, councils usually seek funds for 5 new lots STANDARD POS CLAUSES USED BY COUNCILS. 1. The land shown on the proposal plan as “public open space” is to be sold to the Council by the subdivider for the sum of $1.00 and the subdivider will execute a transfer of that land in favour of the Council immediately upon the issue of titles. 2. That in lieu of the public open space set out on the proposal plan the final plan is to contain the area set out in the plan annexed as public open space and is to sell that area to the Council for the sum of $1.00 and further the subdivider is to execute a transfer of the land in favour of the Council immediately upon the issue of titles. 3. The subdivider shall sell to the Council the land shown on the plan as public open space for the sum of $1.00 and the subdivider shall execute a transfer of the land in favour of the Council immediately upon the issue of titles. 4. The subdivider shall also pay to Council within 90 days of demand an amount of money which bears the same ratio to the value of the whole area comprised in the plan as one twentieth of that area less the area already provided for public open space in the proposal plan and any area created by the final plan of the littoral or riparian reserve bears to the whole area. 5. The subdivider prior to the lodgement of the final plan is to provide security for the above payment by a bond and bank guarantee as set out in Section 117(4) of the Local Government (Building and Miscellaneous Provisions) Act 1993. 6. The subdivider is to pay to the Council an amount which bears the same ratio to the value of the whole of the area comprised in the plan as one twentieth of that area less the area provided for public open space in the proposal plan and any area created by the final plan of the littoral or riparian reserve bears to that whole area. 7. Prior to the lodgement of a final plan the subdivider is to provide security for the payment referred to above by bond and guarantee as set out in Section 117(4) of the Local Government (Building and Miscellaneous Provisions) Act 1993 If Public Open Space already taken with a previous subdivision, it should not be taken again. | |
PUBLIC ROAD | |
| Public Road: means a way maintained by a highway authority and subject to use by the public as of right. SIMPLY: This means that if a Council or Department of Roads maintains a road then that road is public road. Note that the word 'road' alone is considered to mean Public Road, whereas the general public often use the word 'road' to mean a driveway or way, when such is often 'Private Road' HOW WE ASSIST: This issue quite often arises when an owner wishes to develop or further subdivise their title onto a road that is of dubious construction and status. Quite simply, if the road is maintained by Council it is a Public Road and provides a legal frontage to satisfy the Recorder of Titles. | |
PURCHASER | |
| Purchaser: In real estate transactions, the person who is buying the property. | |
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