Long overdue relief from the red tape surrounding the sale of residential property and lots in community titles in Queensland is at last on its way in the form of the Property Occupations Bill 2013 (Bill).
PAMDA TO BE SPLIT
The Bill was introduced into Parliament on 20 November 2013 as part of the move to repeal the complex Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) and to replace it with industry specific legislation. The Motor Dealers and Chattel Auctioneers Bill 2013, Commercial Agents Bill 2013 and Agents Financial Administration Bill 2013 were introduced at the same time as the Bill.
A NEW DEFINITION OF "RESIDENTIAL PROPERTY"
Navigating through the definition of a "relevant contract" to determine if PAMDA applies is difficult to say the least.
The Bill will strip back this definition so that it only applies to a contract (including a contract granting an option to purchase) for the sale of "residential property", with exemptions for contracts formed at or after auctions, because of the exercise of an option or with sophisticated buyers (as set out below).
"Residential property" is defined as land that is used or intended to be used for residential purposes but does not include land used primarily for the purposes of industry, commerce or primary production.
For vacant land, it will be interesting to see how "intended to be used" will be dealt with practically. For example, will the parties need to agree in the contract as to how the land is intended to be used, to remove any doubt?
NO MORE FORM 30C WARNING STATEMENT OR FORM 14 INFORMATION SHEET
The Bill will eliminate the requirements under:
- PAMDA for a Form 30c Warning Statement; and
- the Body Corporate and Community Management Act 1997 (Qld) (BCCM) for a Form 14 Information Sheet for a unit sale,
to be attached to the contract and there will no longer be a requirement for a clear statement to be given directing the buyer's attention to these forms.
Instead, the contract will need to include a prescribed statement that:
- the contract may be subject to a 5 business day cooling off period;
- a termination penalty of 0.25% of the purchase price applies if the buyer terminates during the cooling-off period; and
- it is recommended the buyer, before signing the contract, obtain an independent property valuation and independent legal advice about the contract and their rights during the cooling-off period.
The prescribed statement must appear only once, immediately above the execution clause for the buyer.
NO TERMINATION TRIGGER
Currently under PAMDA and BCCM, a buyer may terminate a contract if a seller fails to give the clear statement directing the buyer's attention to the Form 30c Warning Statement and (if a unit sale) the Form 14 Information Sheet.
Under the Bill, the seller or the seller's agent (depending upon who gave the contract to the buyer) will commit an offence (maximum penalty of $22,000 for an individual and $110,000 for a corporation) for failing to include the prescribed statement, but the seller's failure will not trigger a right for the buyer to terminate the contract.
Industry will embrace this relief, as a buyer will no longer be able to terminate a contract based on the slightest technical infringement of PAMDA or BCCM.
THE COOLING-OFF PERIOD WILL STAY BUT MORE EXEMPTIONS
The cooling off period will stay, but the exemptions from the Bill's application will be expanded.
A contract formed at auction will continue to be exempt as a "relevant contract". Under the Bill, a contract will also be exempt from being a "relevant contract" if:
- it is entered into with a registered bidder for an auction no later than 5pm on the second clear business day after the property was passed in at auction. Lawyers will need to add this to their initial instructions checklist;
- it is formed because of the exercise of an option granted under an earlier contract, if the parties are the same; or
- the buyer is sophisticated, that is, the buyer (or its parent company) is a publicly listed corporation, the buyer is the State or a statutory body or the buyer is purchasing (whether or not in the one contract) at least 3 lots at the same time.
COOLING-OFF PERIOD CAN BE WAIVED OR SHORTENED BY NOTICE
Currently under PAMDA, the cooling off period may only be waived by the buyer's lawyer giving a Form 32a Lawyer's Certification to the seller.
The Bill will remove this requirement (which is considered an unnecessary expense) and allow a buyer to waive or shorten the cooling off period by written notice to the seller.
TERMINATION DURING THE COOLING OFF PERIOD WILL BE LESS TECHNICAL
The Bill will remove minor technicalities with a buyer terminating during the cooling-off period. The termination notice will no longer need to specify the section of the legislation under which the buyer is terminating, nor be dated.
BUYER'S LAWYER NO LONGER REQUIRED TO CERTIFY INDEPENDENCE
The Bill will remove the requirement for the buyer's lawyer to give the buyer a Form 32a Lawyer's Certification.
SNAPSHOT OF CHANGES AFFECTING AGENTS
Briefly, the Bill will:
- reduce the current number of licence categories to 3 – real estate agents, auctioneers and residential letting agents;
- remove the requirement for an agent to give notice to the buyer if the contract is for the sale of vacant land where use for residential purposes is unlawful, and the consequent right of the buyer to terminate the contract for the agent's failure to do so;
- remove the requirement for property developers and their employees to be licensed. This will bring Queensland into line with other States;
- remove the maximum caps on real estate commissions, to introduce more competition and again bring Queensland into line with other States;
- remove the requirement for an agent to disclose the amount of commission they will or expect to receive;
- allow an agent to obtain a commission where the agent has a beneficial interest, provided that the agent has disclosed that interest and it has been acknowledged by the seller;
- extend the exemption for administrators, controllers, liquidators and receivers from the licensing provisions where they are appointed for corporations or natural persons who have become unlicensed (e.g. where the licensee has been unable to pay for the renewal of their licence);
- exempt agents from the Act for large scale transactions involving non-residential and non-rural property. The exemption will apply where the property's total gross floor area or estimated value exceeds the threshold or, where each party owns other property and that property exceeds the threshold. The thresholds will be prescribed by regulation;
- extend the maximum term for a sole or exclusive agency appointment from 60 to 90 days; and
- permit resident letting agents to manage more than one building complex and remove the requirement that they reside on-site
WHERE TO FROM HERE?
The Bill has been referred to the Legal Affairs and Community Safety Committee for consideration.
It is expected to be passed by Parliament in March 2014 and to commence in late May to early June 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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