Frequently asked questions

• How is a property dispute investigated?

  A property dispute is investigated by establishing what the documents say, before anyone argues about what was intended. That usually means the title search and registered plan, the lease or contract and any disclosure given, survey or engineering reports where boundaries or building work are involved, and the correspondence between the parties. In commercial matters the strength of a position is generally decided by that document trail rather than by recollection.

• How are disputes between tenants resolved?

  Disputes between tenants are usually resolved by returning to the terms of each lease, because the answer is more often found in the exclusivity, permitted use and shared area provisions than in general law. Where tenants occupy the same building or centre, the landlord commonly has a role in enforcing those terms. Most are resolved through negotiation between solicitors, with mediation the next step if that stalls.

• What are two types of property disputes?

  Two of the most common types of property dispute are boundary and easement disputes, which concern where rights over land begin and end, and lease disputes, which concern what the parties agreed to do and pay. Commercial matters also regularly involve development and planning conflicts, defective building work, and disagreements over co-ownership or title.

• What does "property dispute" mean?

  A property dispute means a disagreement about rights in land or premises, rather than a disagreement about what the property is worth. It covers who owns or controls land, where a boundary sits, who may use an access way, what a lease requires of each party, and whether building work met the contract. Commercially, the practical question is usually who carries the cost and the delay.

• What is the meaning of disputed property?

  Disputed property is the land or premises itself that is the subject of a claim, as distinct from the dispute between the parties. It matters commercially because property in dispute can be difficult to sell, lease or finance while the claim is unresolved, particularly where a caveat has been lodged over the title. Resolving the claim is usually what restores the ability to deal with the asset.

• Can I evict a commercial tenant?

  You can evict a commercial tenant, but only by following the process the lease sets out, and the steps matter as much as the breach. That normally means issuing a valid breach notice, allowing the time the lease requires for the tenant to remedy it, and only then exercising the right of re-entry or forfeiture. Retail premises carry additional statutory protections, and acting outside the process can expose a landlord to a claim for wrongful termination.

• Can you walk away from a commercial lease?

  You cannot simply walk away from a commercial lease, because the obligation to pay rent generally continues until the lease ends or is properly brought to an end. The practical exits are a negotiated surrender with the landlord, assignment or subletting where the lease permits it, or exercising a break right if the lease contains one. Abandoning the premises usually leaves the tenant liable for rent and for make good.