Property Alert – February 2023Feb 2023 | Commercial Property
Property law reform is expected in Queensland over the next 12 months. The first item of reform is the e-Conveyancing mandate that comes into effect next week.
From Monday, 20 February 2023, certain instruments and documents needed for property transactions must be digitally prepared, signed, settled and lodged through an Electronic Lodgment Network Operator (ELNO), unless an exemption applies. In Queensland, there is currently one approved ELNO with full functionality: Property Exchange Australia Ltd (PEXA).
Many of the commonly used instruments (e.g. Transfer, Mortgage, Priority Notice, Caveat) will be a “required instrument” under the Land Title Regulation 2022 (Qld) and therefore required to be lodged using an ELNO. The Regulation also provides some exemptions which may apply to required instruments, in which case the lodger can apply for an exemption when lodging paper instruments, post-settlement.
While the mandate comes into effect this month, we have been using PEXA to settle transactions for several years and are readily able to support you with the change to electronic conveyancing.
Property Law Bill
Another key element of property law reform is the proposed repeal and replacement of the Property Law Act 1974 (Qld). The Property Law Bill 2022 brings the rules affecting many aspects of property in Queensland into line with current commercial practice.
This modernisation of Queensland’s property law includes a new statutory disclosure regime for sellers, the release of a tenant (and any guarantor of the tenant’s obligations) from liability under a lease following assignment by the assignee, and time ceasing to be of the essence in a contract for the sale of land if a party to the contract cannot complete settlement of the contract on the day and time of settlement due to an "adverse event".
A seller disclosure regime would represent a significant departure from the current practice of “buyer beware”. In Queensland currently, there is no formal seller disclosure regime applying to the sale and purchase of freehold land. The proposed regime would make it mandatory for a seller of freehold land to disclose relevant information to a proposed buyer in a single document along with any prescribed certificates. Similar disclosure regimes exist in other States, including New South Wales and Victoria.
If implemented, the seller disclosure regime will considerably change the way contracts of sale are prepared and property transactions are conducted in Queensland. For sellers, there is likely to be additional time and costs associated with obtaining the necessary searches and certificates. Buyers, on the other hand, will have an opportunity to review key information about the property and make an informed decision about whether to proceed with a transaction. We are monitoring developments in relation to seller disclosure and property law reform generally and will continue to provide updates.
For more information contact Nicola Young Berryman
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.