Property developments are a complicated process. You need to go through the process of executing the development, while at the same time taking the necessary steps to protect your interests. You can see complications arise when it comes to things like copyright – in particular, copyright pertaining to plans associated with the development. You might have heard of the recent case involving Carlisle homes where a previous employee of Carlisle Homes went to work for a rival company, Tick.
Soon after their employment commenced with Tick, a development took place which included plans for homes that were distinctly similar to the homes designed by Carlisle. Understandably, Carlisle sued Tick for copyright infringement.
While you might not be worried about an employee leaving your company and breaching your copyright, have you considered who owns the intellectual property for the plans associated with your property development?
To avoid getting into the same (costly) situation, it is possible to protect yourself – as both a consultant and a land owner – by seeking legal advice, and by following a few critical steps. We’re going to take a look at some of these steps and options here.
And remember, if you need legal advice around anything to do with property development law – McAndrew Law are here for you.
When purchasing land subject to a pre-existing development approval, you need to make sure that the vendor has disclosed to you whether there is any restriction on you using the plans and drawings associated with the development approval. It is important that if you are purchasing land subject to any approvals that you get legal advice..
Although it is true that development approvals run with the land, this does not necessarily mean you have a right to all of the associated plans and drawings. This is especially relevant where it becomes necessary to make minor changes to those documents, as is often the case.
If you have enlisted an architect, surveyor, engineer or other consultant to develop plans and drawings for you, then you need to ensure that the implied licence to use the plans is not excluded with any contract that you have with them. You should also ensure that any contract you have in place doesn’t limit the rights of a third party who purchases the land.
One of the critical parts of any case in copyright claims is the evidence that you have produced the work yourself from your own design. If you cannot show evidence that you have developed a concept through drafts and proofs, then you’re going to find it difficult to be able to present any conclusive evidence in court.
When drafting and developing ideas, make sure that you keep your sketches, concepts, proofs, and ideas. That way, if you do find that someone brings a claim against you for copyright infringement, you can present evidence to the contrary.
You may wish to seek legal advice about your terms and conditions, in case there is any issue in protecting your building plans.
In case you were wondering, the case of Carlisle ended up with the other party, Tick, not being liable for the copyright infringement. The court found against Carlisle, which meant that not only did Carlisle not get the injunctive relief they sought (an order for Tick to cease development) – but Carlisle had to pay Tick’s costs! This is a highly undesirable situation and one that could have been avoided with some sound legal advice.
Call McAndrew Law today on (07) 3266 8555 or contact us online and we will get back to you. If you are planning a property development, drafting property developments or purchasing land for a property development project, you absolutely must seek sound legal advice prior to going any further.