A long-awaited revamp of Queensland’s property laws will bring the state in to line with the rest of the country, requiring sellers to hand over more information that should empower buyers in their decision-making. The changes will affect real estate agents too and the way they prepare contracts, writes Aimee Turner, Property and Commercial Lawyer at Attwood Marshall Lawyers.
Summary
After several years of consultation and extensive scrutiny on a raft of recommendations designed to modernize Queensland’s property laws, the government has drafted a new Bill that will change the way sellers present information to potential buyers.
The looming introduction of a statutory seller disclosure scheme marks the first time Queensland’s property laws have been reformed since the introduction of the current Property Law Act 1974.
The Queensland government sought feedback on a proposed legislative disclosure regime in June 2022. Since then, the new rules have been introduced to Parliament in the form of the Property Law Bill 2023.
The changes will be of interest to everyone involved in the sale of a property – from the seller, who will need to disclose more information before a contract is signed, all the way to the buyer, who will be able to terminate a contract and potentially claim damages if a seller doesn’t comply.
Real estate agents, too, should be closely following the passage of the QLD Bill and the implementation of the new disclosure requirements, as it will change the way contracts are prepared.
The need for reform
The new Property Bill was created in response to the 19 recommendations that were tabled in 2017 by QUT’s Commercial and Property Law Research Centre.
QUT carried out an independent review of Queensland’s property law and found a long list of inefficiencies in the current system that demanded a more streamlined, coordinated, and transparent approach. The final report focused predominately on a seller’s disclosure requirements, arguing that a single statutory framework was needed.
Queensland has been behind in setting up a formal disclosure regime. Up to now, the state has required sellers to comply with a mix of common law, statutory and contractual obligations instead – often with different requirements and formats. And so, the changes have been much anticipated. New South Wales, for example, has had similar disclosure requirements in place since 2017.
In NSW, a buyer will receive several certificates and other search results in a combined form. Certain information such as a title search, drainage diagram, planning certificate from the local council and any dealings relevant to the lot, swimming pool, smoke alarms or loose asbestos insulation must be included in the draft Contract and made available to prospective buyers.
The new requirements – what do they mean?
In February, Queensland’s Attorney-General and Minister for Justice Shannon Fentiman said the state’s new property bill will revamp the selling regime with more “contemporary language that reflects current commercial practice.”
The idea is to make sure buyers are as informed as possible as they weigh up a property transaction.
A seller’s disclosure obligations will now be consolidated into a single form – making it a much more straightforward process than the current disconnected method.
Some of the biggest changes include:
- Requiring a seller to alert buyers to the need to carry out their own due diligence on flood information, as well as direction on where they should go to access a property’s flood history and assessments.
- Making it mandatory for a seller of freehold land to disclose relevant information to the buyer in a single document along with any prescribed certificates – including for e.g.:
- a body corporate certificate plus any bylaws or exclusive use allocations
- a title search with registered interests
- the registered plan of survey of the property
- any enforcement notices related to the property
- a pool compliance certificate, if there is a pool.
There are exceptions to the requirements, including when the seller and buyer are related – whether by a family connection or a related body corporate – and if the buyer is a listed corporation or a federal, state, or local body. Exemptions also apply if the sale involves a boundary being adjusted, an interest being sold to a co-owner, or the contract has come about because of a court order or death of the owner.
Next steps
Although it’s unclear when the disclosure requirements will come into force, agents should ensure they are familiar with them now so that they can help sellers with their obligations and facilitate a smooth property transaction when that day comes.
It’s also important to be aware of the nuances between different states’ disclosure regimes, particularly for those agents that operate in, say, both Queensland and New South Wales where the two disclosure regimes may have commonalities but use different forms.
Attwood Marshall Lawyers – supporting real estate agents and their clients to facilitate stress-free property transactions
Attwood Marshall Lawyers has a dedicated Property and Commercial team, with experienced property solicitors available to provide advice on contracts, searches, and disclosure if you have any questions or concerns.
We understand the process of buying and selling a property can be stressful and it is our goal to reduce stress throughout the transaction.
For help and advice relating to a property matter, contact our Property and Commercial Department Manager, Jess Kimpton, on direct line 07 5506 8214, email jkimpton@attwoodmarshall.com.au or mobile 0432 857 300.
