Property lawyers get excited about different things compared to normal people.
One of those things is the upcoming changes to the Property Law Act 1974 – arguably the biggest overhaul of Queensland property law in decades.
The changes are expected to become law by the end of 2023.
This article briefly discusses the expected major changes.
Queensland is currently a “buyer beware” jurisdiction for property sales. Contracts are thin and buyers (through their lawyers) conduct their own searches after the contract is signed.
The new laws will require sellers to provide a bundle of disclosure information, including searches, certificates and other information. This is similar to what is currently required of New South Wales, Victorian, South Australian and ACT sellers.
Buyers will have contract termination rights if material is not given or is materially inaccurate.
In practice, these new seller disclosure obligations will probably mean:
(a) Buyers can enter contracts with greater confidence; and
(b) Sellers will need to “do their homework” to get a contract prepared properly. It may be the case that (like in NSW) a seller will need to engage a lawyer to prepare disclosure material before a contract is given to a buyer.
Disclosure for the more unusual or difficult community title properties will also be improved.
The law currently states that “assignors” (e.g. tenants who sell their business and pass the lease to the buyer) and their guarantors (e.g. the original directors who have personal guarantees under the lease) remain liable for the defaults of the assignee (e.g. the business buyer) that occur after the lease is handed over.
In other words, business sellers still need to worry after settlement about whether their buyer keeps paying the rent!
This is often a surprise to the parties to the lease.
The proposed Property Law Act changes will cause Assignors and their guarantors to be released from such future liability after the “assignee” / business-buyer does a further assignment. In other words, if/when your Buyer eventually on-sells, you will be released from liability under the lease.
A more immediate “on first assignment/sale” release already existed to an extent in retail leasing, however the broad Property Law Act changes will give many non-retail tenants comfort (and without much practical detriment to landlords).
Landlords will be required to be prompt and reasonable (within a more structured process) when tenants/seller request consent to the assignment of lease.
There will also be greater clarity as to which parts of leases bind a successor party – with any excluded obligations needing to be expressed clearly as such. The old “touch and concern the land” test will apparently be dropped.
Currently there are enforcement problems when easements require a successor-in-title to take a positive step.
For example, currently it can be difficult to require your neighbour to repair the shared driveway “like the easement requires” when he/she is not the original party who signed the easement.
The changes will cause positive obligations (e.g. “to repair”) within easement terms will bind successors-in-title. This change will have retrospective effect.
This means that easements will “do what they say on the packet” to a much greater extent.
Many other arcane, odd or just sub-optimal features of the law are proposed to be “tidied up”, including:
– greater consistency regarding electronic documents and electronic settlements
– modernising the laws of Deeds
– “instalment contracts” amendments
– abolishing other ancient & outdated rules
As always, professional legal advice should be sought for particular circumstances and deals. The information above is very general and should not form the sole basis of major transaction decisions and/or contract preparation.
Written by Julian Creagh, Associate – Wilson Lawyers.