Streamlining property legislation in Queensland
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The Property Regulation Act 2023 (the Act) handed Parliament on 25 October 2023. The Act goals to simplify, streamline and modernise Queensland’s property legislation regime by changing the Property Regulation Act 1974 (Qld). The Act proposes each minor and main adjustments to mirror modern industrial practices, repeal outdated and pointless provisions, and enhance certainty. The graduation date is about by proclamation and could also be delayed by as much as 12 months to permit for session and training, however there has but to be affirmation.
On this Perception, we deal with among the key adjustments to look out for as soon as the Act takes impact. Specifically:
- the Act will create a statutory vendor disclosure scheme that can apply to all freehold gross sales of land (however word that the place different acts present for added disclosure obligations or further penalties for a failure to reveal, then these acts will proceed to use);
- the Act will present that covenants in registered easements that relate to the use, possession or upkeep of the land (no matter whether or not the covenants are constructive or damaging covenants) shall be binding on future landowners except the covenants are expressed to be private; and
- the restrictions interval for bringing a declare in respect of a deed shall be lowered from 12 years to six years.
The proposed statutory disclosure scheme requires the vendor to provide the customer a disclosure assertion (the type of which shall be prescribed by regulation) together with copies of a prescribed record of searches / certificates earlier than the contract is signed. Additional, the disclosure assertion will include warnings about info that isn’t included. A listing of prescribed info for a disclosure assertion and an inventory of prescribed certificates is contained within the draft Property Regulation Regulation 2023.
The vendor should disclose the paperwork to the customer in bodily kind or, if the customer consents, by digital communication.
Penalties of non-compliance
The Act will present the customer with the appropriate to terminate in two circumstances:
- if the vendor doesn’t present disclosure paperwork, then the customer might terminate the contract at any time earlier than settlement; or
- if the vendor supplies disclosure paperwork which are inaccurate or incomplete in relation to a fabric matter, then the customer might terminate if they’d not have in any other case signed the contract.
Nevertheless, if one other act supplies a treatment for the failure to reveal specific info, then the implications of that act will apply as an alternative of the statutory vendor disclosure scheme termination rights.
Classes of gross sales excluded from the statutory vendor disclosure scheme
The next classes are exempt from the proposed scheme:
- gross sales between associated events the place the customer waives the requirement;
- gross sales between co-owners or neighbouring landowners for a boundary realignment;
- court-ordered gross sales;
- transfers to a private consultant or beneficiary below a will or on account of loss of life;
- the place contracts come up out of an possibility and the vendor beforehand made disclosure to the customer when coming into into the choice (solely the place the customer below the contract for the sale of the lot and the choice for the sale of the lot are the identical. The place a nominee is being appointed below an possibility, separate disclosure would have to be made to the nominee earlier than the choice is exercised);
- the place the sale value is larger than $10 million (together with GST) the place the customer waives the requirement;
- the place the vendor is Brisbane Metropolis Council, or one other native authorities, and the sale is to recuperate overdue charges or expenses, and the customer is given a discover that the vendor just isn’t required to offer the disclosure assertion and required certificates;
- the place the vendor is the state and the customer has been the tenant of the property for at the least three years and the customer is given a discover that the vendor just isn’t required to offer the disclosure assertion and required certificates; and
- the place the customer is a publicly listed company (or a subsidiary of a publicly listed company), the state, a statutory physique or a establishing authority below the Acquisitions of Land Act 1967 (Qld).
Beneath the present legislation, a constructive covenant in an easement just isn’t enforceable towards successors in title except the successor agrees to be sure. Part 65 of the Act goals to deal with this concern. The part operates such that covenants in registered easements that relate to the use, possession or upkeep of the land (no matter whether or not the covenants are constructive or damaging covenants) shall be binding on future landowners except the covenants are expressed to be private.
Part 65 may have a retrospective impact. It is going to apply to all easements, no matter when the easement was entered into or registered.
At present, the restrictions interval for bringing a declare based mostly on a contract is six years, whereas the restrictions interval for bringing a declare based mostly on a deed is 12 years. The Act proposes to amend the Limitations of Actions Act 1974, with a view to cut back the restrictions interval for deeds to 6 years to match the restrictions interval for contracts. Decreasing the restrictions interval will take away one of many major distinctions and one of many key benefits of utilizing a deed. Nevertheless, the proposed change is not going to have an effect on present deeds.
The Act is a much-needed modernisation of the Property Regulation Act which ought to result in an easier and extra streamlined property legislation regime in Queensland. Though the Act retains nearly all of well-established property legislation ideas, there are some important adjustments to the prevailing legislation that stakeholders ought to pay attention to.