Queensland has long adopted the principle of caveat emptor, more commonly referred to as ‘buyer beware’, in relation to the sale and purchase of the property. The premise of this statement is that it should be left up to a buyer to take appropriate steps to investigate the property they are purchasing for defects, faults, or issues. Our Property Law team discusses how the principle, and the apportionment of risk may change with recent suggestions and proposals for a statutory seller disclosure scheme (‘Seller Disclosure’).

SELLER DISCLOSURE – THE RATIONALE AND CURRENT OBLIGATIONS:

The concept of Seller Disclosure came about due to numerous industry submissions and recommendations by the Commercial and Property Law Research Centre at QUT. The current scheme, included in the draft Property Law Amendment Bill 2022 (‘the Bill’), is based on the following rationale:

a) a clear framework

b) value to buyers

c) the information must be readily available to sellers or available at a reasonable cost

d) information should be in an accessible form and easy to understand

That said, at present, Queensland has no formal Seller Disclosure, and sellers are not required to disclose all information to prospective buyers except that required under common law or contract.

SELLER DISCLOSURE REQUIREMENTS AND TIMING

Under the Bill, Seller Disclosure would require sellers of freehold land (including units) to disclose relevant and accurate information about the property prior to signing a contract. If a seller fails to do so, then the buyer may have a termination right for any ‘material inaccuracies’ not disclosed. However, once pre-contractual disclosure is made, a seller is not obligated to update the buyer or provide further disclosure.

Furthermore, while under the new scheme, Seller Disclosure would usually be required before entering a contract, there are also specific provisions for properties purchased at auctions and for option deeds that sellers should be aware of.

PRESCRIBED FORM

Seller Disclosure will need to be in the approved format, and while the exact form is still in draft, sellers will need to provide buyers with a signed seller disclosure statement (‘Disclosure Statement’). The contents of a Disclosure Statement pursuant to the Bill will need to include ‘prescribed certificates’ such as:

a) Title Search

b) Registered survey plan

c) For lots in a community title scheme:

• • body corporate information certificate
  • community management statement (CMS)
  • by-laws not included in the CMS

d) Adjudicators orders (QCAT tree & fence orders)

e) Pool compliance certificate or notice of no pool safety

f) EPA notices

g) QBCC notices

h) Current rate and water notice

Moreover, the method by which a seller may give notice can be either in physical form or by electronic communication.

EXCLUSIONS AND AREAS OF CONTENTION

While the above will need to be disclosed in the Disclosure Statement, the following information concerning the property is not included:

a) the use of the property (current or historical)

b) limits on the land (i.e. planning laws)

c) encumbrances

d) structural soundness and pest attacks

That said, many of these items are already incorporated in the contract. For instance, sellers must already disclose whether a property is being sold with any encumbrances under the REIQ Contracts (13^th & 17^th editions).

Another piece of information that will not currently be included in the Disclosure Statement is flooding history and flood maps. This is an area of debate, especially given recent flooding events in South-East Queensland, and there have been discussions by the Queensland Government for this to be included in the proposed Seller Disclosure.

Other notable exceptions to Seller Disclosure include:

a) where the buyer and seller are related parties

b) where the buyer is the government, a corporation or a statutory body

c) off-the-plan contracts

d) contracts giving effect to court orders

e) leasehold land

f) property valued over $5 million where the buyer has given notice waiving disclosure

IMPACTS AND HOW WE CAN HELP:

Seller Disclosure will result in several changes for sellers in Queensland. It is likely that the proposed scheme will not take effect for a number of years yet and will be subject to further changes and amendments. However, with this shift in attitude, away from the long-established principle of ‘buyer beware’, both sellers and buyers should be seeking legal advice prior to entering and signing contracts.

Contact our lawyers today to find out more about Seller Disclosure or for assistance with your conveyancing and property needs