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Free Guide to Hiring a Real Estate Lawyer
Commercial real estate in Clayton, a suburb in Melbourne's southeast within the City of Monash, covers a range of property types - retail shops, office suites, industrial and manufacturing premises, and mixed-use developments. Transactions and projects in this area are governed primarily by Victorian state laws and local planning controls administered by the City of Monash. Legal work in this field commonly involves sale and purchase contracts, leasing arrangements, development and planning approvals, title and easement investigations, compliance with building and environmental laws, and tax and financing arrangements specific to commercial property.
Because Clayton sits in a mature metropolitan area with established commercial and industrial precincts, buyers, sellers and occupiers frequently encounter issues such as planning permits for change of use, compliance with modern building codes, car-parking and access requirements, environmental site history and potential contamination, and specialised lease terms for retail versus industrial tenants.
Commercial property matters often involve large sums, complex contracts and layered regulation. A lawyer experienced in commercial real estate can help protect your interests at every stage. Common situations where legal assistance is advisable include:
- Buying or selling commercial property - reviewing and negotiating the contract of sale, conducting title and encumbrance checks, advising on settlement mechanics and risk allocation.
- Negotiating or drafting commercial leases - preparing heads-of-agreement, reviewing lease terms, advising on rent reviews, outgoings, make-good obligations and subletting rights.
- Development and redevelopment projects - obtaining planning and building approvals, structuring development agreements and managing third-party agreements such as design and construction contracts.
- Due diligence for investors - property, planning, environmental and tenancy due diligence to uncover latent risks before completion.
- Financing and securities - preparing and negotiating mortgage documentation, guarantees and intercreditor arrangements.
- Resolving disputes - landlord-tenant disputes, boundary and easement matters, defective construction claims and enforcement of contractual rights through negotiation, mediation or tribunal and court proceedings.
- Tax and commercial structuring - advice on GST treatment, land transfer duty (stamp duty) and whether a transaction qualifies as a going concern.
Several layers of law and regulation apply to commercial real estate in Clayton. Key aspects to be aware of include:
- Planning law: The Planning and Environment Act 1987 and the Monash Planning Scheme set the framework for land use, zoning and permit requirements. Zoning determines permitted uses, and many changes of use or new developments will require a planning permit from the City of Monash.
- Building and construction: Building permits and compliance with the Building Code of Australia are administered through the Victorian Building Authority and local building surveyors. Building approvals are separate from planning permits and both may be required for redevelopment.
- Title and registration: The Transfer of Land Act 1958 and the Torrens title system govern registration of land, easements and covenants. A title search will reveal mortgages, covenants, easements and other encumbrances that affect use and value.
- Sale disclosure: In Victoria, sellers provide specified information to buyers before settlement, commonly called a vendor's statement or Section 32 statement under the Sale of Land Act 1962. This statement discloses matters such as planning restrictions, outgoings and encumbrances, and it is an important part of buyer due diligence.
- Retail leasing: Retail leases are subject to the Retail Leases Act 2003 (Victoria) which imposes mandatory disclosure, minimum lease terms and processes for dispute resolution for qualifying retail shop leases. The Act is designed to protect small retail tenants but has specific definitions and exceptions - legal advice helps determine whether it applies.
- Environmental requirements: Environmental regulations administered by EPA Victoria and planning controls address contaminated land, heritage overlays and site remediation obligations. Buyers and developers commonly commission environmental site assessments.
- Taxation and duties: Transactions may attract GST and land transfer duty administered by the Australian Taxation Office and State Revenue Office Victoria respectively. GST treatment can differ depending on whether the sale is of new premises, an existing tenanted property, or a going concern.
- Dispute resolution forums: Commercial property disputes may be heard in the Victorian Civil and Administrative Tribunal - VCAT - or in courts. Specialist dispute resolution pathways exist for retail tenancy matters and small business tenancy disputes.
Commercial property law focuses on properties used for business purposes and is governed by different statutes, contract terms and commercial practices than residential property. Commercial transactions often involve more negotiation, fewer statutory consumer protections, bespoke lease terms and different tax and stamp duty implications.
Commercial property purchases typically do not attract the same statutory cooling-off rights that apply to many residential sales. Cooling-off periods can be included by agreement but are not automatic. A lawyer can negotiate appropriate protections, conditional clauses and due-diligence timeframes in the contract.
A Section 32 vendor's statement is a document provided by the seller that discloses important information about the property - for example title details, planning overlays, easements, outgoings and any notices or orders affecting the land. It helps buyers identify legal and planning risks before proceeding to settlement.
The Retail Leases Act applies to qualifying retail shop leases in Victoria and sets out disclosure obligations, minimum lease terms, and a framework for dispute resolution. Whether a lease falls under the Act depends on the use of the premises and other statutory criteria. If the Act applies, both landlord and tenant have specific rights and obligations beyond those in the lease itself.
Key due-diligence items include title search and plans, leases and tenant estoppel information, outstanding notices or orders, planning and building approvals and permits, environmental assessments, service contracts, outgoings, and verification of income and expenses. A lawyer will coordinate legal due diligence and flag contractual protections.
Generally, the purchaser pays land transfer duty (stamp duty) to the State Revenue Office Victoria. GST treatment depends on the nature of the supply - some commercial property sales are subject to GST, while sales that meet the criteria for a going concern may be GST-free. Tax advice is essential to confirm obligations and structure the deal efficiently.
Eviction or termination of a commercial lease depends on the lease terms and whether statutory protections apply. For retail tenants covered by the Retail Leases Act, additional protections and dispute processes apply. Most commercial leases specify default events, notice periods and remedies. Legal steps must be followed precisely to avoid wrongful eviction claims.
Often yes. Whether a planning permit is required depends on the current zoning and the proposed use or alterations. Common triggers include change of use, building work beyond specified thresholds, signage, and car-park changes. Pre-lodgement advice from the City of Monash or a planning lawyer can clarify requirements and likely outcomes.
Easements grant rights over a property to others - for example rights of way or drainage. Covenants are private contractual obligations that restrict use of land. Both are recorded on title and can affect development, access and the capacity to use or alter the property. Title searches and legal advice will identify these encumbrances.
Start with a clear heads-of-agreement that records key commercial terms - rent, lease term, options, rent review mechanism, permitted use, responsibilities for outgoings and repairs, assignment and subletting rights, and make-good obligations. Seek legal review of the full lease to protect long-term flexibility, limit liabilities and ensure compliance with the Retail Leases Act if applicable.
- City of Monash - planning and permits, local council requirements and pre-application advice.
- Planning and Environment Act 1987 and Monash Planning Scheme - the statutory planning framework for Clayton.
- Victorian Building Authority - building permits, registration and compliance matters.
- Land Use Victoria - land titles, plan lodgement and property information services.
- Environment Protection Authority Victoria - environmental compliance and contaminated land guidance.
- State Revenue Office Victoria - land transfer duty and state tax guidance.
- Australian Taxation Office - GST and commercial tax matters.
- Victorian Civil and Administrative Tribunal - dispute resolution and appeals relating to planning and tenancy matters.
- Victorian Small Business Commission - information and dispute assistance for small businesses, including retail tenancy issues.
- Law Institute of Victoria and local commercial property law firms - for solicitor referrals and professional legal advice.
- Industry bodies such as the Property Council of Australia and the Real Estate Institute of Victoria - resources on market practice and sector guidance.
- Gather key documents - title, existing lease(s), current contracts, building and planning approvals, environmental reports and financial records relating to the property or lease.
- Engage a specialist commercial property lawyer - look for a solicitor or firm with experience in Victorian commercial real estate, planning and leasing. Ask about experience, fees, who will do the work and estimated timelines.
- Conduct a scoped due diligence program - legal, planning, environmental, building and tax checks tailored to the transaction or project. Use findings to negotiate appropriate protections, price adjustments or risk allocations.
- Negotiate commercial terms early - use a heads-of-agreement to record critical commercial points, then have a lawyer prepare or review the full contract or lease to ensure those points are reflected and legal protections are included.
- Coordinate advisors - involve accountants, tax advisers, planners and building consultants as needed so legal advice aligns with commercial, tax and development objectives.
- Prepare for settlement and post-settlement obligations - ensure finance, title transfer procedures, registration of interests and any required permits are in place before settlement to avoid delay or penalties.
If you are unsure where to start, book an initial consultation with a commercial property lawyer who can explain your rights, outline a clear scope of work and provide a realistic timeline and cost estimate tailored to your Clayton commercial real estate matter.
