At present, Queensland has no formal seller disclosure regime on the sale and purchase of established residential freehold land. The exposure draft of the proposed Property Law Bill 2022 advises a regime to implement a statutory seller disclosure scheme in Queensland. With some exceptions (eg where the buyer is a local government or State government agency), this would require sellers of freehold land to disclose relevant information to a proposed buyer in a single document along with any prescribed certificates. Currently, the law in Queensland reflects the historical position that risks are placed on the buyers to seek any defects and faults in a property. Sellers are not required to disclose all relevant information to a potential buyer. The proposed statutory seller disclosure scheme coincides with existing disclosure schemes in New South Wales, Victoria, South Australia and the Australian Capital Territory, which imposes disclosure obligations on sellers to provide basic searches and relevant certificates prior to any contractual agreements.
The Queensland government received submissions from a number of industry groups which acknowledged the difficulties of the current disclosure framework. The Real Estate Institute Queensland stated that the current mix of obligations creates 'inconsistency, confusion and greater potential for disputes.' The Queensland Law Society noted that disclosure obligations have been added in an ad hoc manner and had little regard for the increased complexity of obligations imposed on sellers. The Commercial and Property Law Research Centre of the Queensland University of Technology ('the Centre'), stated criticisms in their final report that the current regime holds no practical effect and does not take into account changes towards access to instant electronic title searches and contractual remedies for mistakes in the property description.
The rationale behind the regime is to streamline current processes and provide buyers efficiency and transparency to information that will allow them to make better informed decisions about property transfers prior to entry into a contract of sale. The new disclosure regime aims to clarify the disclosure obligations of the seller, requiring transparent and effective form of disclosure, providing valuable information to the decision of a buyer to purchase and balancing the information cost between buyer and seller.
What does this mean?
A disclosure statement must be given to the buyer before the buyer enters into a contract with the seller for the sale of the lot. The warranties contained in the new seller disclosure statement will not be able to be contracted out of.
The disclosure will need to be made in the approved form. A link to a draft of the approved form can be found here.
The regime will require the seller to include information (prescribed certificates) such as:
- there are no current easements, covenants or encumbrances affected the property
- there are no tree orders or applications affecting the property
- written notice is not required under the Environmental Protection Act 1994
- no building work has been carried out by an unlicensed person in the last six years
- no warranties are given about the structural soundness of the building or improvements on the property
- there are no current orders, notices or transport proposals affecting the land issued by a relevant authority that may affect the title or use of the land after settlement.
Depending on the property type, the seller is required to give certain documents with the disclosure statement, including the following:
- current title search
- registered survey plan
- body corporate certificate
- community management statement for the community titles scheme
- pool compliance certificate
- tree order under the Neighbourhood Disputes Act
- unlicensed building work under the Queensland Building and Construction Act
- rates notice
- water services notice
- notice regarding a transport infrastructure proposal.
The statement does not include information about:
- flooding history
- structural soundness of the building or pest infestation
- current or historical use of the property
- current or past building approvals for the property
- limits imposed by planning laws on the use of the land
- services that are or may be connected to the property.
Submissions made by industry groups acknowledge that a single statutory seller disclosure regime will be substantially beneficial to the conveyancing process by clearly identifying seller obligations, creating a transparent regime, promoting consistency of obligations and simplifying the current matrix of obligations.
Effects on the seller:
If the Bill is passed, this will bring significant change in which property transactions and contracts are conducted in Queensland.
The draft Bill provides that a seller's failure to comply with the statutory disclosure requirements may entitle the buyer to terminate the contract at any time prior to settlement or claim damages, depending on the circumstances.
There are no current exclusions of transactions in the Property Law Bill 2022. However, the Centre has recommended in their Final Report: Property Law Act 1974 that exclusions should apply where the buyer is a sophisticated party capable of ascertaining the value of the property and any defects through their own means. The Queensland Law Society suggests that the disclosure scheme should exclude sales by auctions, sales to government bodies and sales to other sophisticated bodies, similar to section 160 of the Property Occupations Act 2014. However, if the purchase price exceeds $5 million (excluding GST), the Bill contemplates that the purchaser may waive the requirement for a Disclosure Statement.
Consultations for the exposure draft for the statutory seller disclosure scheme had closed on 31 August 2022. It is expected that the provisions of the scheme will be incorporated as part of the Property Law Bill 2022. The date for the enactment for the Property Law Bill 2022 is unconfirmed and subject to review. Drafting changes are made in the course of finalising the draft with consultations being closed on 5pm 21 October 2022.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.