General Property Law FAQs
What reports should I get before signing a contract?
There are a number of enquiries that should be made to protect against potential risk when purchasing a property. The relevant searches are usually conducted by your legal representative when purchasing a property, both before and after a contract becomes unconditional. The following are some of the relevant reports and searches that should be obtained. It is important to note however that the list of potential searches is extensive and your legal representative will discuss the options with you in more detail:
A. Title Search - The most important thing to do first is to check that the person who is selling the property is the person listed on the title of it. If it is found that the person selling is not registered on the title then you must determine if they have authority to do so. Further, the title search will also reveal any other interests that any other party may have in the property like a lease or mortgage for example.
B. Survey of the Registered Plan - To be certain of the boundaries of the property you should ensure you obtain a survey of the land to satisfy this.
C. Pest Inspection – A pest inspection is important as if you buy the property without conducting the relevant search you could be up for a significant repair bill if termites have infested.
D. Building inspection – This will ensure that the structure in which the property stands is stable and strong.
These are the initial due diligence searches that should be essential when deciding if or not you wish to buy a property.
What is stamp duty?
Stamp duty is now referred to as Transfer Duty in Queensland. It is a tax that must be paid on a property when it is transferred. The amount of duty is determined by the value of the property being transferred.
When do I pay stamp duty and how is it calculated?
Transfer Duty must be paid within 30 days of the unconditional contract date. It can be calculated either as the unencumbered value of a property or the amount that has been agreed under the contract, whichever is greater.
Unencumbered value refers to the value of the property without regard to any encumbrance the property is subjected to. An example of an encumbrance is a mortgage. It means that when calculating the Transfer Duty payable any limitation will be disregarded. This allows the Office of State Revenue to seek payment the of the duty based on the value of the property even if it is transferred for a lesser value.
For the specific transfer duty rates relative to you click “here” to check.
What is a “cooling off” period?
This is a statutory right that allows a buyer to terminate the contract after receiving a copy signed by both parties. The cooling-off period will last five business days. The period will end at 5 pm on the fifth business day. If the contract is signed on a weekend the period will start on the next business day. If the five business day period is interrupted by a day that is not a business day then it will continue on the next business day.
When do I pay a deposit?
The deposit is usually payable on the day the buyer signs the contract for purchase unless the contract states otherwise.
What is the settlement?
The settlement is the event of payment for ownership of the property. At settlement, payment is made and the necessary documents are exchanged, as well as property keys and other relevant items.
What does the exchange of contracts mean?
The exchange also is known as the contract date is essentially the beginning of the legally binding relationship between the two parties, the buyer and seller. The exchange occurs when contracts are signed by all parties and copies provided. It is typical for the deposit to be paid on the date of exchange. The cooling off period will start the next business day after this.
What is the difference between exchange and settlement?
An exchange is what occurs when the contract is entered into after both parties have a signed and executed contract. The settlement is the event of payment for ownership of the property. Exchange can be seen as the beginning of the contractual obligations for each party and settlement can be seen as the end of the contract.
What are the laws in relation to misleading representation and the sale of land?
Misleading and deceptive conduct is governed in Australia under section 30 of the Australian Consumer Law Act (Cth). Section 18 of the Act overlaps section 30 but section 30 is specific to the property. The aim of this legislation is to protect buyers from malicious representations.
The section applies to any representation that is made in connection with transactions involving the sale of interests in land. Representations will be inclusive of all mediums of communicating a representation. It may be statements made orally or in writing, plans and drawings, maps and pictures, gestures demeanour and other conduct.
The misrepresentation requires a person to act on the false misrepresentation and suffer damage because of it. The person making the representation will, therefore, be liable for compensating the person who relied upon it.
What is an easement?
An easement is a nonpossessory right to use another person’s land for a particular purpose. An easement has the effect of benefiting one parcel of land whilst burdening the other. An example of this is a right of way easement, it allows someone travel over the property of another. Although it may seem burdensome to one property owner it is beneficial for the community at large.
Easements are attached to the land in which they grant rights to and may be registered on the property title be found on the title search when conducted. This means that when a property is purchased, the easement will remain despite the change in owners.
Residential tenancy agreements: What are the standard terms?
In Queensland, most residential leases are entered into through a general tenancy agreement provided for by the Residential Tenancies Authority. It specifies general terms required that should be considered fundamental to any lease agreement. More specifically it includes terms on: rent; period of tenancy; increases in rent; the bond; services such as water and electricity.
It also contains the rights and obligations of each party under the lease, both the lessor and the lessee.
Overall the RTA agreement contains all general terms necessary to be sufficient to give effect to a lease while providing the relevant obligations for both parties.
Under what circumstance are landlords not allowed to increase rent?
The landlord can only increase rent once every 6 months and must give 2 months written notice before the increased rent is to become payable. If it is a fixed term lease agreement then there must be a term in the contract allowing for the increase in rent.
If the tenant believes the proposed increase to be excessive they have 30 days to apply to QCAT to have the increase set aside.
What happens if a tenant wishes to add a fixture?
A tenant may only add fixtures to the property if permission is granted in writing by the owner. The tenant must agree to any conditions that the landlord may impose upon acceptance of the request. Failing to obtain the landlord’s permission will give the landlord the right to take action for the breach of the lease agreement.
What happens if a repair is urgent and the tenant is required to pay?
The standard rent agreement used in Queensland outlines the emergencies at clause 30, they include:
(a) A burst water service or serious water service leak;
(b) A blocked or broken lavatory system;
(c) A serious roof leak;
(d) A gas leak;
(e) A dangerous electrical fault;
(f) Flooding or serious flood damage;
(g) Serious storm, fire or impact damage;
(h) A failure or breakdown of the gas, electricity or water supply to the premises;
(i) A failure or breakdown of an essential service or appliance on the premises for hot water, cooking or heating;
(j) A fault or damage that makes the premises unsafe or insecure;
(k) A fault or damage likely to injure a person, damage property or unduly inconvenience a resident of the premises; and
(l) A serious fault in a staircase, lift or other common areas of the premises that unduly inconvenience a resident in gaining access to, or using, the premises.
If any of the above events were to occur then the tenant has the right to arrange a suitably qualified person to make the emergency repairs. The maximum cost of the repair can only amount to 2 weeks rent under the agreement.
Can Tenants recover expenses on emergency repair?
If the cost is equal to or less than 2 weeks rent then the tenant may require the lessor to reimburse him or her for the amount paid. The request must be written and must be accompanied by the supporting documents such as the invoice. If the Landlord does not comply within 7 days the tenant may apply to a tribunal for an order to recover the expense incurred.
For further advice, contact ABKJ today. Servicing the Gold Coast and surrounding regions.