The Queensland government has taken a significant step towards
meeting its pre-election commitment to cut 'red tape' and
streamline buyer warning requirements for the sale of residential
land by releasing the draft Property Occupations Bill 2013
This Bill, along with three other draft industry-specific bills,
are proposed to replace the current Property Agent and Motor
Dealers Act 2000 (PAMD Act). The current buyer warning
requirements in the PAMD Act have been the subject of extensive
litigation as buyers exploited termination rights to avoid
contracts due to (sometimes minor) non-compliance with overly
Partner Tony Baldwin and associate Janelle Metcalf outline the
proposed warning requirements and address some concerns with the
Bill as drafted.
The Property Occupations Bill 2013:
requires a warning paragraph to be contained in the contract
itself (rather than by a separate warning statement document);
does not give a right of termination for non-compliance.
The draft bills are open for public consultation. Submissions
may be made to the Office of Regulatory Policy before 5.00pm on
Monday 11 March 2013.
Proposed warning requirements
The Bill requires that a contract contains a warning paragraph
immediately above and on the same page as each place the buyer
signs the contract to indicate their intention to be bound by the
contract. The words required (or words to a similar effect)
"Except if the property is sold by auction or the buyer
has waived the cooling-off period, the contract is subject to a 5
business day statutory cooling-off period. It is recommended the
buyer obtain independent legal advice about the contract before
This requirement does not apply to amendments made by a seller
as a counteroffer, unless the change is to the property description
or a party to the contract.
Non-compliance by the seller (or the seller's agent) no
longer gives the buyer a right to terminate, but sees the seller
(or the seller's agent) commit an offence punishable by a
maximum monetary fine of $22,000. The party who gave the contract
to the buyer (either the seller, or the seller's agent) is
liable for their contravention of the requirements.
Are the problems in the PAMD Act fixed?
There is the potential for further debate as to the required
placement of the warning paragraph proposed by the Bill, as it must
be inserted immediately above and at each place the buyer signs to
indicate their intention to be bound by the contract.
Some issues to be addressed include:
Immediately above and at each place: Limited
space in the contract may make inserting the warning paragraph
Signing: Will initials (as opposed to a
signature) or a shortened form of signature (eg made next to
amendments) trigger the requirement?
Intention to be bound: Will every signature
and initial made by the buyer be an indication of their intention
to be bound, and will the intention be a subjective or objective
Hopefully these areas can be addressed and clarified during the
public consultation period. However, as there is no right of
termination for non-compliance, it is likely that non-compliance
will not be pursued as feverishly as under the PAMD Act.
The provisions of the Bill will only apply to contracts entered
into after the commencement of the new legislation, while the PAMD
Act provisions will continue to apply to contracts entered into but
not yet settled at the commencement.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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