A Shift From The ‘Buyer Beware’ Contracting Position To A New Seller Disclosure Regime

What Buyers and Sellers Now Need to Know

Buyers and Sellers of most freehold property in Queensland now need to be aware of the shift in the ‘buyer beware’ contracting position to a mandatory Seller disclosure regime to be introduced under the new Property Law Act 2023 (Qld) (the New Act).

This New Act will affect registered residential and commercial freehold properties and will commence on 1 August 2025.

Whilst freehold property is affected by the New Act, it will not affect off-the-plan contracts for the sale of unregistered freehold residential and commercial properties. Those off-the-plan sales will continue to be regulated by the Land Sales Act 1984 (Qld) and the Body Corporate and Community Management Act 1997 (Qld).

Under the new disclosure regime, Sellers must now provide to a Buyer a completed and signed disclosure statement as well as certain prescribed certificates before a Buyer signs a contract to purchase freehold property in Queensland.

The New Act allows for the Seller to provide the disclosure documents physically or electronically. The onus is on the Seller to demonstrate that they provided the Buyer with the disclosure.

What is a Seller Disclosure Statement and What Are the Prescribed Certificates to be Given to a Buyer

The new Seller disclosure statement is intended to provide Buyers will important legal and other information about properties being offered for sale in Queensland. The Seller disclosure statement and prescribed certificates must be provided to a Buyer before they sign a contract.

There are two forms of disclosure statements.

Form 2: Seller Disclosure Statement (for all registered residential and commercial properties).
Form 33: Body Corporate Certificate (if the sale of a lot is included in a community titles scheme under the Body Corporate and Community Management Act 1997).

The Seller disclosure statement outlines information that must be disclosed including:

Registered encumbrances;
Unregistered encumbrances;
Statutory encumbrances;
Zoning;
Transport proposals and resumptions;
Contamination;
Unlicensed building work under owner builder permit;
Notices and orders; and
Rates and charges.

The prescribed certificates that will be required to be given to a Buyer include:

The title search and registered plan;
Notices issued under specific building and planning legislation (e.g. Queensland Building and Construction Commission Act 1991 or Building Act 1975);
Notices that have been given to complete work or spend money on the property;
Pool compliance certificate;
A notice, order, proposal or correspondence about transport infrastructure, resumption, or local transport infrastructure;
Documents relating to heritage registers; and
Material relating to community title schemes.

What is Not Included in the New Seller Disclosure Statement

The new Seller disclosure statement is not required to include information about:

Flooding or other natural hazard history;
Structural soundness of the buildings, or improvements on the property or pest infestation affecting the property;
Current or historical use of the property;
Current or past building or development 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; and
The presence of asbestos within buildings or improvements on the property.

Buyers are still encouraged to make their own enquiries about these matters especially the structural soundness of the building or improvements before signing a contract or request the selling agent to include a due diligence special condition in the contract allowing for enquiries to be made regarding these issues.

Effect of Non-Compliance by a Seller

If a Seller fails to comply with the disclosure obligations before the Buyer signs the contract, the Buyer may terminate the contract at any time up until settlement.

Additionally, the Buyer may terminate the contract prior to settlement if:

The disclosure statement was incomplete or inaccurate; and
The Buyer signed the contract without knowledge of the inaccuracies; and
Had the Buyer been aware of the correct information they would not have signed the contract.

The New Act also provides that the Seller must refund the deposit paid by the Buyer within 14 days of termination.

Are There Any Exceptions To This New Seller Disclosure Regime

There are certain sales that are exempt from this new disclosure regime which include:

If the Seller and Buyer are related and the Buyer gives notice waiving the compliance of the disclosure obligation;
If the sale is between co-owners or neighbouring landowners for a boundary realignment;
If the sale price is over $10 million (including GST);
If the Seller is a local government exercising their power of sale to recover rates;
If the Buyer is a government, listed corporation, statutory body, or constructing authority;
If the Seller is the State Government and the Buyer has been the tenant of the property for at least 3 years and the Buyer is given a notice that the Seller is not required to comply, and that the Buyer must make their own enquiries about the property; or
Where body corporate for the scheme has advised the Seller in writing that the body corporate does not have records that could be used to prepare a body corporate certificate (documents have been destroyed or are missing).

How can we help with the Sale Process

Although the New Act won’t come into effect until August 2025, if you’re planning to sell your property next year it is important to be aware of these new changes.

Engaging a solicitor early can help you through the transaction, ensure you understand how the New Act will impact your sale, help with a smooth transaction, and safeguard your interests.

It is important for you to comply with the New Act to prevent termination of your contract, financial loss and other legal disputes.

Our experienced property law and commercial law teams are here to help you with your sale.

Please contact us on (07) 5532 3199 or submit an enquiry.