In a bid to improve sustainability in the building sector, all Queensland house, townhouse and unit vendors are now required to complete sustainability declarations under amendments to the Building Act 1975 ("the Act"). Having taken effect from 1 January 2010, the Building and Other Legislation Amendment Act 2009 adds to existing building requirements and is aimed at informing potential purchasers about building features including energy and water use, access and safety. The amendments also affect bodies corporate and developers. The 'ban the banners' provisions seek to prevent developers from enforcing:
- Covenants in building contracts that restrict the use of sustainable features in favour of aesthetics; and
- Covenants that require certain building size minimums.
What are the sustainability declarations and how do they affect vendors?
The aims of requiring sustainability declarations are to increase awareness of sustainable building features, encourage vendors to use sustainable building features to improve the value of their property and encourage purchasers to compare the sustainability of properties.
A vendor (or agent) has the following obligations in relation to declarations under the Act:
- To complete, to the best of their ability and knowledge, the questions set out in the sustainability declaration form available from the Department of Infrastructure and Planning;
- To sign the declaration form, ensuring it is completed with reasonable skill and care with no false or misleading information;
- To ensure sale advertisements refer to the sustainability declaration (newspaper and magazine advertisements and 'for sale' signs are excluded) and that the declaration is displayed conspicuously at open inspections;
- To provide a copy of the declaration to a prospective buyer when requested; and
- To update the declaration if relevant changes are made to the property during the marketing period.
Non-compliance carries penalties of up to $2000 (or $10,000 for agents). Also, a vendor would be liable to compensate a purchaser for any loss suffered due to false or misleading information in the declaration. However, a purchaser is not entitled to terminate a contract on the basis of false or incomplete information in the declaration.
What are the 'ban on the banners' provisions and how do they affect developers?
This part of the legislation seeks to prevent developers from hampering the construction of sustainable building features. This is done by rendering covenants that require, for example, aesthetic instead of sustainable features unenforceable. All provisions, except for those dealing with solar hot water systems and other photovoltaic cells, apply to contracts entered into on or after 1 January. Requirements not to restrict approval of photovoltaic cells apply to contracts that took effect or were entered into before 1 January.
In summary, covenants restricting the following are unenforceable:
- Light-coloured roofs;
- Window treatments (e.g. tinting);
- Specific types of materials and finishes for external walls and roofs; and
- Solar hot water systems and other photovoltaic cells, merely for preserving the external appearance of the building.
Covenants and by-laws will also not be able to require:
- Minimum floor areas;
- Minimum number of bedrooms and bathrooms;
- More than one garage;
- Minimum roof pitches; and
- Driveways, fencing and landscaping to be in place before occupation, or within a certain period of time.
These changes are subject to the requirement that any roof colour or window tint must not be too reflective so that it causes unreasonable interference with adjoining neighbours' use and enjoyment of their property. Further, any restrictions on the placement of solar hot water systems that are designed to ensure that other systems can be installed, or that the roof can support a storage tank, remain effective
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.