The Property Law Act 2023 (Qld) is set to bring about significant changes to property law in Queensland. This three-part article series entitled “Upcoming Changes Under the Property Law Act 2023 (Qld)” provides a brief overview of the origins, objectives and enactment of the new statute before examining and discussing some of the key changes its provisions bring to property law practice in Queensland and what these potentially mean for practitioners and their clients. In particular, Part 1 focuses on changes to seller disclosure requirements for all sales of land. Part 2 examines changes to extensions of time for settlement in certain cases, and some of the important changes affecting mortgages. Part 3 concludes by identifying and discussing changes affecting leases, easements, deeds and instalment contracts.

Introduction

The Property Law Bill 2023 (“Bill”) is the most significant change to property law in Queensland since the Property Law Act 1974 (Qld) (“PLA 1974”) which came into force in December 1975. The Bill received Royal Assent on 2 November 2023 as the Property Law Act 2023 (Qld) (“PLA 2023”) and will commence upon proclamation, which is expected to be sometime around mid to late 2024.

Review of the PLA 1974 was instigated by the then-Attorney General, Jarrod Bleijie, who in August 2013, instructed the Commercial and Property Law Research Centre at the Queensland University of Technology (QUT) to modernise and simplify its provisions with reference to related legislation, case law and the realities of practice.[1] The result was the “Property Law Review – Final Report 2018: Property Law Act 1974 (Qld)” (“Report”).[2]

The Report identified a number of areas of the PLA 1974 that warranted reform including recommending the insertion of new provisions and repealing others which had become obsolete or redundant such as those that pertain to old system land and conveyancing. Many of the recommendations contained in the Report were incorporated into what would ultimately become the PLA 2023.

Brief Background of the Report

The Review Panel at the Commercial and Property Law Research Centre that prepared the Report consisted of Professor Bill Duncan, Professor Sharon Christensen and Associate Professor Bill Dixon of the QUT Law department.[3] Submissions were received by the Review Panel from various organisations and individuals including the Queensland Law Society, the Real Estate Institute of Queensland, the Residential Tenancies Authority, the Society of Trust and Estate Practitioners Queensland, and the Strata Community Australia.[4] The Review Panel also received assistance in the preparation of the Report from a number of senior research associates.[5]

In order to draw its conclusions, the Review Panel performed a wide-ranging literature and case law review including reviewing equivalent property law legislative frameworks in England, New Zealand and other Australian jurisdictions for the past forty years.[6] The Review Panel considered the technological advancements and consequent changes to property law practice since the PLA 1974 was enacted and made recommendations accordingly.[7]

In total, the Review Panel made 232 recommendations with perhaps the most significant being the Recommendation 1 which recommends that the PLA 1974 be repealed and a new Property Law Act be enacted in its place.[8] Many subsequent recommendations provide draft provisions as suggested models for inclusion in such legislation.

Stated Objectives of the Bill

The Bill had its First Reading on 23 February 2023 by the Hon. Shannon Fentiman, then-Attorney-General.[9] In her speech to Parliament, Ms Fentiman stated that the Report’s recommendations were “instrumental in the development of the bill.”[10] The then-Attorney General outlined the purposes of the Bill were to modernise, streamline, clarify and simplify property legislation.[11]

The Property Law Bill 2023 – Explanatory Notes (“Explanatory Notes”) echo the purposes stated by Ms Fentiman and acknowledges that the Bill adopts most of the Report’s recommendations.[12] Furthermore, it notes that many of the amendments are to “better facilitate e-conveyancing and electronic transactions, and remove outdated provisions.”[13] The Explanatory Notes recognise that although during the drafting process comparable property law principles from other jurisdictions, including overseas jurisdictions, were reviewed and considered, the Bill has been drafted specifically with Queensland in mind and it is not intended to be uniform with or complementary to Commonwealth or other State laws.[14]

The Bill was subject to a number of minor additional amendments before it received Royal Assent on 2 November 2023. The subsequent PLA 2023 applies subject to a number of other statutes including the Land Act 1994 (Qld), the Land Title Act 1994 (Qld), and the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld).[15]

Changes to Seller Disclosure Requirements for All Sales of Land

One of the most significant amendments is the implementation of a statutory seller disclosure scheme for sales of freehold land in Queensland, which is designed to “simplify and consolidate the disclosure process… and empower prospective buyers to make informed decisions to purchase.”[16]

The current seller disclosure framework in Queensland is not succinctly outlined in any single statute and is, rather, derived from an assemblage of disparate sources including common law, statutory and contractual obligations. The obligations also differ according to the particular type of transaction.

Part 7, Division 4, Subdivision 2 of the PLA 2023

Part 7, Division 4, Subdivision 2 of the PLA 2023 contains the provisions of the seller disclosure scheme. Section 99 provides that a seller must give the buyer a disclosure statement for the relevant lot and each prescribed certificate applicable to the lot before a contract for sale is signed by the buyer.[17] The disclosure statement must be in the approved form, include any information prescribed by a regulation, include any warnings prescribed by regulation, be true and correct at the time it is given to the buyer, and be signed by the seller.[18]

The relevant regulation is the proposed Property Law Regulation 2023 (Qld), which contains provisions outlining what must be disclosed including a title search, registered survey plan, pool compliance certificate, community management statement, body corporate certificate, details of any encumbrances, contamination or environmental protection information, tree orders, heritage listings, transport proposals, and other certificates that may be required under regulation.[19] The disclosure statement may be an electronic document and signed electronically.[20]

Buyer’s entitlement to terminate if seller fails to disclose or disclosure is inaccurate or incomplete

The buyer is entitled to terminate the contract if the seller fails to comply with its disclosure obligations before the buyer signs the contract or if its disclosure was inaccurate or incomplete with respect to a material matter and the buyer was not aware of the inaccuracy or incompleteness at the time the buyer signed the contract and had the buyer been aware, the buyer would not have signed the contract.[21] In either such circumstances, the buyer may terminate by giving a notice to the seller terminating the contract at any time before settlement.[22] Within fourteen days of termination, the seller must repay to the buyer any amount paid towards the purchase of the lot to the seller or its agent and any interest that accrued on that amount while it was held by the seller or its agent.[23] This is recoverable by the buyer as a debt.[24]

Where the seller gives the buyer a prescribed certificate and the information in that certificate was given to the seller by a body corporate or other entity and it is inaccurate, the buyer’s sole remedy, without limiting the effect of the Body Corporate and Community Management Act 1997 (Qld), is contained in section 104 of the PLA 2023, being entitlement to terminate the contract and recover any moneys paid towards the purchase of the lot.[25]

Under the PLA 2023, the buyer does not have a statutory right to compensation.

Auctions

If the lot is sold by auction, the contract of sale is taken to be signed by the buyer at the completion of the auction for the disclosure purposes and if the buyer was registered as a bidder prior to the auction, the seller should provide the disclosure documents to the buyer before the start of the auction.[26]

In circumstances where the buyer was not registered as a bidder until after the start of the auction, the seller is taken to have given the buyer the disclosure documents before the completion of the auction if, for an auction conducted in-person, physical copies of the disclosure documents or a physical document stating the disclosure documents could be viewed by using a stated electronic link was displayed at the place of the auction from the beginning to the completion of the auction.[27] However, if the buyer asks for a physical copy of the disclosure documents, the seller’s obligation is only met if it then provides a physical copy of the disclosure documents or displays a physical copy of the disclosure documents at the place of auction.[28]

Where the auction is conducted electronically, a copy of the disclosure documents or a document stating the disclosure documents could be viewed by using a stated electronic link must be made available via the same electronic medium as the auction itself.[29]

If the disclosure documents are to be made available via an electronic link, the documents must have been accessible to the buyer starting at the time the link was displayed or sent and ending at the completion of the auction irrespective of whether the buyer actually used the link.[30]

Exceptions to disclosure requirements

The seller disclosure requirements prima face apply to all sales of land in Queensland including units. However, there are some exceptions. A seller is not required to give disclosure documents if, inter alia, the buyer and seller are related and the buyer gives the seller a notice waiving compliance,[31] or the buyer is a government or statutory body or listed corporation, or the buyer and seller are co-owners.[32]

Electronic methods of disclosure

In recognition of the shift in technology since the PLA 1974 was drafted, the PLA 2023 provides for the seller’s disclosure to be provided by electronic means. A seller may therefore provide a physical document to the buyer stating that the disclosure documents may be viewed by using an electronic link and that the buyer may ask for a copy of those documents.[33] If the buyer makes that request, the seller must give the buyer copies of the disclosure documents before the buyer signs the contract.[34]

Alternatively, if the buyer has consented expressly or by conduct,[35] the seller may send an email to the buyer stating that the disclosure documents may be viewed by using an electronic link or directly attaching the disclosure documents or including its contents in that email.[36]

Similarly to the process regarding electronic links at auctions discussed above, the buyer must have been able to view the disclosure documents via the electronic link at the time the relevant communication containing the link was sent and it must have been available for a reasonable time,[37] and it is immaterial whether or not the buyer actually used the electronic link.[38]

The seller bears the onus of demonstrating that it provided the buyer with the disclosure documents.[39]

Click here to read “Upcoming Changes Under the Property Law Act 2023 (Qld) - Part 2: Settlement Extensions & Changes Affecting Mortgages”.

Footnotes 

[1] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 52.

[2] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT).

[3] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 52.

[4] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 54.

[5] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 52.

[6] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 53.

[7] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 53.

[8] Property Law Review – Final Report 2018: Property Law Act 1974 (Qld) (QUT), 55.

[9] Record of Proceedings, Qld Parliament, First Session of the 57th Parliament, Hansard.

[10] Record of Proceedings, Qld Parliament, First Session of the 57th Parliament, Hansard p 275.

[11] Record of Proceedings, Qld Parliament, First Session of the 57th Parliament, Hansard pp 275, 276.

[12] Property Law Bill 2023 – Explanatory Notes, 1.

[13] Property Law Bill 2023 – Explanatory Notes, 1.

[14] Property Law Bill 2023 – Explanatory Notes, 24.

[15] Property Law Act 2023 (Qld) s 5(1).

[16] Property Law Bill 2023 – Explanatory Notes, 1.

[17] Property Law Act 2023 (Qld) s 99(1).

[18] Property Law Act 2023 (Qld) ss 99(2), 99(3).

[19] Property Law Regulation 2023 (Qld) rr 4, 5.

[20] Property Law Act 2023 (Qld) s 99(7).

[21] Property Law Act 2023 (Qld) s 104(1).

[22] Property Law Act 2023 (Qld) ss 104(2), 104(3).

[23] Property Law Act 2023 (Qld) s 105(2).

[24] Property Law Act 2023 (Qld) s 105(3).

[25] Property Law Act 2023 (Qld) s 106.

[26] Property Law Act 2023 (Qld) s 101(2).

[27] Property Law Act 2023 (Qld) ss 103(1), 103(2)(a).

[28] Property Law Act 2023 (Qld) s 103(3).

[29] Property Law Act 2023 (Qld) s 103(2)(b).

[30] Property Law Act 2023 (Qld) ss 103(4), 103(5).

[31] Property Law Act 2023 (Qld) s 100(a).

[32] Property Law Act 2023 (Qld) s 100(b).

[33] Property Law Act 2023 (Qld) s 102(1).

[34] Property Law Act 2023 (Qld) s 102(8).

[35] Property Law Act 2023 (Qld) s 102(9).

[36] Property Law Act 2023 (Qld) s 102(2).

[37] Property Law Act 2023 (Qld) s 102(3).

[38] Property Law Act 2023 (Qld) s 102(4).

[39] Property Law Act 2023 (Qld) s 101(3).

References & Further Reading

A.     Legislation

Property Law Act 1974 (Qld).

Property Law Act 2023 (Qld).

B.    Other

Property Law Bill 2023.

Property Law Bill 2023 – Explanatory Notes.

Property Law Regulation 2023 (Qld).

“Property Law Review – Final Report 2018: Property Law Act 1974 (Qld)”, (Queensland University of Technology).

Record of Proceedings, Qld Parliament, First Session of the 57th Parliament, Hansard.

Liability limited by a scheme approved under professional standards legislation.