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Property & Lease Disputes

Our expert team includes 3 Accredited Specialists in Commercial Litigation, making us one of the most recognised Commercial Litigation teams in
New South Wales.

When property disputes arise in relation to land or a lease, prompt and decisive action is essential for protecting the value of your property investment or maintaining continuity of business.

Our Property Dispute Lawyers have expertise in relation to wide range of real property and lease related disputes.

We understand that when disputes arise in relation to property interests and leases there is often a lot at stake and time is usually of the essence.

How We Help

Our team will quickly evaluate your situation and let you know where you stand.

Getting terminations right is critical and early legal advice and intervention is highly recommended for avoiding expensive litigation and ensuring that you do not do anything that may weaken or jeopardise your legal position at a later stage.

If you need an answer fast, contact us today for a Free Case Evaluation.

Types of Property and Lease Disputes

Our Lawyers have extensive experience representing clients in relation to property disputes, including disputes in relation to:

Resulting Trusts & Constructive Trusts
Proprietary Estoppel
Property Developments and Construction Contracts
Commercial & Retail Leases
Contracts for the Sale and Purchase of Land
Co-ownership Land
Strata Schemes and Strata Management
Caveats and Securities over land

Resulting Trusts & Constructive Trusts

Where a resulting trust or constructive trust exists the legal owner will owe fiduciary duties to the beneficiaries who are entitled to benefit of the trust property and proceeds of sale.

What is a Resulting Trust?

A Resulting Trust is an implied trust that comes into existence in circumstances where the law presumes an intention on the part of a settlor to create a trust, in the absence of evidence to the contrary.

In the context of property transactions, a resulting trust may arise where:

a property is purchased in one party’s name with funds provided by another party,
a property is transferred to a party who pays nothing for it, and
a property is transferred to two or more purchasers who have contributed unequally to the purchase price.

What is a Constructive Trust?

A Constructive Trust is an equitable remedy imposed by a Court in respect of a property irrespective of parties’ intentions.

A Constructive Trust may be imposed where, in the all the circumstances, it would be unconscionable for one party with legal title to property to rely on that title, as against the other party, as representing the actual interests of the parties.

Proprietary Estoppel

A claim for Proprietary Estoppel arises when a party with an interest in land induces another party to assume that have acquired, or will acquire, an interest in land, and that party acts to their detriment in reliance on the assumptions such that it would be unconscionable for the owner of the land to subsequently deny that the party has any interest in the land.

In these circumstances, the property owner can be estopped from denying that the other party has acquired an interest in their land.

Typically, the claim in Proprietary Estoppel is pursued because the elements of a contract or requirement for contracts in relation to land to be in writing can not be satisfied.

An action for Proprietary Estoppel may result in a Court imposing a Constructive Trust or ordering payment of equitable compensation.

Property Developments and Construction Contracts

We represent developers and contractors and provide advice and assistance in relation to:

Disputes with Joint Venture Partners and Investors,
Disputes with Councils,
Disputes with Builders, Contractors and Consultants,
Disputes with Adjoining Owners and Neighbours, and
Disputes with Purchasers and Prospective Lessees.

Our Building & Construction Law team includes an Accredited Adjudicator under the Building and Construction Industry Security of Payment Act with over 20 years’ experience working in the construction industry as a project manager and consultant before coming to the law.

See our Commercial Building Disputes page for more information.

Commercial & Retail Leases

We act for both Landlords and Tenants of Commercial Leases and Retail Leases in relation to lease disputes including:

Termination of Leases and re-entry by Landlords,
Lessee actions for relief against forfeiture (termination),
Lessee’s obligations repair and make good leased premises,
Lessor’s obligations to structurally maintain leased properties,
Recovery of unpaid rent and enforcement of personal guarantees,
Abatement of rent,
Rent reviews,
Assignments of Lease and Subleases, and
Breaches of the Retail Leases Act.

Contracts for the Sale and Purchase of Land

We advise and assist Vendors and Purchasers of land with disputes in relation to Contracts for the Sale and Purchase of Land including:

Negligence actions against Solicitors and Conveyancers,
Advice in relation to contractual rights and obligations,
Issuing and responding to Notices to Complete,
Termination of contracts, forfeiture of deposits and claims for recovery of damages,
Actions for Specific Performance,
Actions for relief against forfeiture of deposits,
Objections in relation to defects in title and claims for compensation,
Advice in relation to Adverse Affectations and rescission of contracts,
Property damage occurring after exchange of contracts,
Removal of fixtures, fittings and inclusions prior to completion,
Misrepresentations and rescission of contracts, and
Disputes in relation to pre-contract representations and replies to requisitions.

Co-ownership Land

We can advise and assist co-owners of properties in relation to:

Partnership disputes,
Contributions to maintenance, rates and land tax, and
Applications for Orders appointing trustees for sale,

Strata Schemes and Strata Management

We can advise and assist Owners Corporations, Strata Managers and Lot Owners in relation to:

Strata Management disputes,
Breaches of By-Laws,
Maintenance of Common Property,
Building defects, and
Claims for recovery of unpaid Strata Levies.

Caveats and Securities over land

We can advise and assist property owners and secured creditors in relation to:

Unregistered mortgages and charges over land,
Priorities between competing security interests,
Enforcing securities against Liquidators and Trustees in Bankruptcy,
Registration of Caveats,
Refusals to Withdraw Caveats,
Lapsing Notices, and
Applications for Orders extending the operation of a Caveat.

I hold complete confidence with this firm.

“As somebody who had never engaged with a Solicitor before, I was lucky enough to have Hamish Taylor and Amanda Crosbie assist with the execution of two commercial leases. The process was seamless, with regular and prompt communication, all whilst being friendly and approachable at the same time. I would not hesitate to contact them for any future legal needs.”

Lauren Aspinall

Very happy with every contact I have had with Roberts Crosbie Mortensen.

“Having dealt with a few law firms in Newcastle I can confidently recommend Roberts Crosbie Mortensen before any other.”

Jonathan Quartly

More Accredited Specialists in Commercial Litigation than 99% of all firms in NSW.

Our Specialists

Our Property Dispute Lawyers

Sam Roberts

Managing Director

Accredited Specialist (Commercial Litigation)

Newcastle

Sam is an Accredited Specialist in Commercial Litigation with over 20 years’ experience helping businesses solve complex legal problems.

Amanda Crosbie

Solicitor Director

Accredited Specialist (Business Law)

Newcastle

Amanda’s practice focuses on providing timely corporate and commercial services to established and growing SMEs.

Tony Peterson

Principal Solicitor

Accredited Specialist (Commercial Litigation)

Newcastle

Tony has a decade of experience in national and international law firms representing high net wealth individuals and businesses in large and complex commercial disputes.

Phil Blaxell

Special Counsel

Sydney

Phil is an experienced Litigation Lawyer with a track record for winning cases and advocating strongly for his clients.

Felicity Donald

Special Counsel

Newcastle

Felicity is an exceptional advocate with over 17 years’ experience in Litigation & Dispute Resolution with a focus on commercial, construction, professional negligence and intellectual property disputes.

Jack Lindgren

Senior Associate Solicitor

Accredited Specialist (Commercial Litigation)

Newcastle

Jack is a specialist Commercial Litigation Lawyer adept at resolving complex commercial disputes, with a focus on Professional Negligence, Building & Construction, Employment and Insolvency related claims.

Christa Chapman

Associate Solicitor

Newcastle

Christa's diligence, attention to detail and personal approach ensures that her clients always feel well informed and in safe hands.

Isabella Hudson

Solicitor

Newcastle

Isabella is a determined and energetic Commercial Litigation Lawyer who aspires to provide every client with a positive legal experience.

View all Lawyers

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27 Feb, 2023

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‘Squatter’s Rights’ – How Time Can Lead To Ownership of Land

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20 Feb, 2023

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What is a Tenant’s Obligation to Make Good Under a Lease?

In this article we will be looking at a tenant’s obligation to make good under a lease.

13 Oct, 2022

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PPSR – The importance of registering on the The Personal Property Securities Register

The prompt registration of security interests is crucial to ensure that your security will have priority after other creditors and is enforceable in the event of a debtors insolvency.

20 Sep, 2022

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Surcharge Purchaser Duty – What is it? Who does it apply to? Who might be liable in negligence?

In this article, we’ll explain what Surcharge Purchase Duty and Surcharge Land Tax are, and the types of situations in which the advice provided (or failure to advise) by a solicitor, conveyancer, or other advisor might amount to negligence.

01 Oct, 2021

Jack Lindgren

NSW Commercial Leasing Regulations for Covid-19

The Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), which commenced on 24 April 2020, is the NSW government’s response to the National Government’s Mandatory Code.

18 May, 2020

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Commercial & Retail Fitouts

How you could find yourself out of business before you even begin.

13 Feb, 2017

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Frequently Asked Questions

When can I terminate a Commercial Lease?

If your Lease provides a process for termination, this should be the first thing you consider. Typically, the Lease will only provide for a termination upon breach, usually after a period of notice of said breach has been given and a failure upon the defaulting party to rectify. The Lease may specifically define what constitutes a breach or default. You will need to determine whether the conduct of the other party constitutes a breach of the Lease giving rise to a right to terminate and if so, strictly follow the required process under the Lease.

A right to terminate may also arise under common law when there is a:

breach of an essential term of the Lease;
sufficiently serious breach of a non-essential term of the Lease; or
repudiation of the Lease by a party.
It is important to seek legal advice prior to terminating a Lease, or even communicating with the other party about terminating the Lease, so that the correct process can be followed. If you terminate a Lease improperly, you risk facing a claim in damages for an improper termination. If you accidentally affirm the Lease, you risk losing the right to terminate.

If there has been no breach or repudiation of the Lease by a party, but you wish to terminate the Lease on another, including commercial, ground, you can approach the other party to the Lease and negotiate a termination by consent. Typically, the person seeking the termination by consent will need to agree to pay some amount to the other party, to compensate them for part of their loss suffered as a result of the termination of the Lease. This is a commercial agreement reached between the parties, and there is no guarantee that the other party will agree to terminate by consent.

What is relief against forfeiture of a lease?

Forfeiture of a Lease is where the lessor has lawfully re-entered the premises and taken possession as a result of the lessee’s breach. At the lessee’s request, the Court can grant the lessee “Relief Against Forfeiture” and allow the lessee to re-enter and take back possession of a premises. The principle is based on fairness and equity and will typically require the lessee to put the lessor back in the same position it would have been but for the breach, for example, pay all rent and other expenses due and payable under the Lease.

The relief can be available to a lessee even if the lessor has acted properly and in accordance with their contractual rights. As the principle is an equitable one, the court has discretion to determine whether to grant relief based on the particular facts of the matter, and will take into account such things as the seriousness of the breach, the extent of any loss that will be suffered by the lessee as a result of the forfeiture, whether there is a history of the lessee breaching the Lease, the likelihood of the lessee further breaching the Lease, whether the breach was deliberate or inadvertent or whether the premises has been relet to a new lessee.

If I terminate a Lease can I recover rent for the balance of the term?

If a lessor rightfully terminates a lease as a result of the lessee’s breach, including failure to pay rent or abandoning the premises, the lessor can claim damages against the lessee for rental arrears up to the date of termination, and rent that would have been payable from the date of termination to the expiry date of the Lease.

Typically, a Court or Tribunal will make an order in favour of the lessor for all rental arrears, however, will offset the damages for rent payable after the date of termination against the amount the lessor did, or should have, recovered by mitigating its loss. That is, the lessor has an obligation to mitigate its loss by advertising the property for a new tenancy at a market rent, to offset any loss it will suffer from the termination of the Lease.