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Practice makes perfect in property law

Practice makes perfect in property law

Coming fresh to an area of law can sometimes feel like climbing a mountain. There's legislation to understand, procedures to get your head around and unexpected issues that can turn a Friday night of xiao long bao into hours of scrolling through LexisNexis. But we all know when it comes to applying the law, reading can only get you so far – and property law is no exception.

Yes you might have a checklist of how to do a property conveyance and you can easily read and understand a lease. But what about when your client wants their deposit released before settlement, or you need to draft special conditions for a particularly complex sale of land? They say practice makes perfect, and in our experience, there's really no substitute. 

Here at the LIV we are lucky enough to be working with Dr Vanessa Johnston – a lecturer and a chief examiner of property law at Monash University. Together with Vanessa, we are bringing you a practical Property Law Fundamentals workshop to help hone those property law skills. Vanessa has had a stellar career working in small and mid-tier firms. We sat down with Vanessa to talk all things property law and picked her brain about the real, practical skills solicitors should be focusing on to be successful. We hope you enjoy our chat.

So you've had a pretty great career so far. Can you tell us a bit about that?

I started my career in a boutique tax law firm where I was lucky enough to be involved in matters of lots of different types. I think starting my career working in tax allowed me to see that there are lots of connections between different areas of law that I didn't appreciate before. This experience meant that by the time I got into my property role, which was probably a year or two later, I was starting to think more carefully about how we do transactions and the fact that what we do in property effects and is affected by other legal issues. After my small firm experience, I went to a larger, mid-tier full service commercial law firm where I worked on commercial property matters, leasing, and a little bit of tax and revenue.

I eventually took a short break and started a PhD. I have a PhD in climate change law that examines carbon pricing in Australia. While my PhD looked at carbon taxes in detail, property rights can also be used to price carbon. It was by doing that PhD that I developed a more academic interest in property, tax and then climate change and I joined Monash University.

Do you have a career highlight?

I was part of the team that ran one of the first high court GST cases in Australia. I was very lucky to pick up that file! It was January when the Commissioner of Taxation filed court documents that we had to respond to and there was nobody in the office except the articled clerk, which was me! While Special Counsel were very involved by that stage, I was the person in the firm, other than the Principal, who helped Special Counsel to draft all the documents and do legal research. When the matter went to trial, I went to the High Court and sat with them at the instructor's table.

What challenges do you see practitioners new to property law facing?

Property is a very interesting and engaging area of law but for those same reasons it's also a little bit scary for new practitioners. As transactions grow in size they get more complicated. The average value of houses and developments is also going up. All of this means that the risks associated with doing a property transaction is increased. We're getting new taxes imposed on property all the time, there's changes to stamp duty, changes to GST, GAIC charges, etc. In that sense making sure documentation is in order and complies with both property laws and also other laws like the tax laws is a challenge. The risks involved in getting all that right are quite high. So with all the documentation involved young practitioners, who are perhaps still finding their feet, can sometimes lack the confidence they need to get the documents done the way they need to because they are still developing their knowledge in the area.

What do you think are the key skills a property lawyer needs to develop in order to be successful in the area?

There are a few. Attention to detail is really important in property, as in all areas. Also when looking at contracts to buy and sell property or leases, these transactions don't just involve contracts, they also involve plans, they often involve council documentation and things that require you to understand both what you're looking at and also the consequences of what the information means. Also again there are links between lots of different areas – property law isn't in a vacuum. You need to understand how contractual principles work, you need to appreciate risks of conflict – your client ending up in a mediation situation which is then verging on litigation and all the other elements that go with that. In some ways as a property lawyer you become a jack-of-all-trades. Property is the focus but there's other things to consider and lots of legislation to get your head around. Actually knowing what you're looking at, being able to visualise it in your head and then putting that on paper can be quite a challenge I think.

Could you briefly describe what you will be covering in your workshop?

The Property Law Fundamentals workshops cover different aspects of dealing with property law in Victoria. We look at the sale and acquisition of land, which is a fundamental transaction which most young property lawyers will probably get involved in. We also look at the basic elements of leasing, particularly retail leasing. The workshops are designed to build in practical skills to show the lawyers what they might be facing in practice but also remind them of the theoretical reasons why we take certain steps or why we do these things in practice. In that sense we are actually joining together the practical experience with more traditional, substantive knowledge.

For example in the conveyancing part of the workshop, we go through the steps of conveyancing and complete a mock settlement. Based on a fictitious scenario we basically draft the documents together and work our way up to settle the property, to get a feel of the way the process evolves, the things you do at different steps and the issues that might arise. That's based on the paper conveyancing process but we also look at e-conveyancing. It's a pretty full program.  

What do you think practitioners get out of this kind of workshop that they wouldn't by going to a seminar?

This workshop series is quite unique because it's so hands-on. Yes, it still delivers substantive content like you would expect in a lecture-style seminar, but you get to work in small groups and discuss issues as they come up. There's also more time for you to actually engage with other people in the workshop and apply what you are learning straight into practice. We actually give you the standard form documents that you will see in practice. You get to work with those documents which I think is quite unique because you don't normally get to apply the knowledge you've just learned in a normal seminar environment. The fact that you get to have a hands-on experience with the documents themselves and even practice doing this hypothetical settlement is almost like a dry run before you face a difficult file. That element, the practicality of it, is quite a unique feature of this series. 

Part 1 of the LIV Property Law Fundamentals Workshop is on Friday 2 March and Part 2 on Friday 9 March. You can register for the workshop here. Don't forget to also check out the other Fundamentals and Masterclass workshops in our series here.  

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