Conveyancing tips – changes to Queensland property laws

On Monday 1 December 2014, the Property Agents and Motor Dealers Act 2000 (PAMDA) was repealed and the following four new pieces of Queensland legislation came into force:

  • Property Occupations Act 2014
  • Motor Dealers and Chattel Auctioneers Act 2014
  • Debt Collectors (Field Agents and Collection Agents) Act 2014
  • Agents Financial Administration Act 2014

PAMDA continues to apply to relevant contracts entered into prior to 1 December.

The Real Estate Institute of Queensland released new contracts to comply with the new laws, and the new form of contract must be used for any new contract entered into.

Aside from some practical tidying up of the contract and giving it a cleaner look, there are some changes that are relevant to agents and parties buying or selling property as follows:

  1. Changes to relevant forms:
  • Form 30C Warning Statement no longer exists for residential property contracts. The contract itself now contains the warning about obtaining legal advice and an independent valuation.  It also advises that a statutory cooling off period applies.
  • Form 14 Information Sheet for the Body Corporate and Community Management Act 1997 is no longer required to be attached.
  • Form 32a lawyer’s certificate has been abolished. A buyer can now waive or shorten the statutory cooling off period with written notice to the seller.
  1. Failure to comply with technical requirements are no longer an avenue for a buyer to terminate a contract or seek compensation. Instead, a breach of the new legislation may result in a fine from the government for $22,000 for an individual and $110,000 for a corporation.
  1. The requirement of giving notice to a buyer for vacant land that cannot be lawfully used for residential purposes has been removed (where previously a buyer could terminate a contract for failure to disclose this).
  1. Finally, a practical change allowing notices under the contract to be sent by email is a welcome change.

The new contracts have also tightened up the requirements for them to be completed more fully and accurately.  An example is that it will no longer be acceptable to insert words such as ‘refer to title’ or similar in the encumbrances section.  All title encumbrances must be accurately stated in the contract.

Above are some of the main changes, but many others have also come in effect.  If you would like to find out more, please don’t hesitate to contact us.

Chattels and fixtures – What will be included with the property?

When you decide to purchase a property you will become familiar with the terms fixtures and chattels.

It’s important you have a good understanding of what these terms mean before you sign a contract of sale for the property, as you want to be sure you know what you will be receiving come settlement.

The general rules that applies to fixtures, is that an object will be considered a fixture where it is fixed to the property, or land, by any means other than its own weight. Where this is not the case the object will be considered a chattel.

Some typical fixtures you will find in a property include; the hot water system, cooktop, fixed floor coverings and dishwashers. Any plants that are planted into the soil are also considered fixtures.

Fixtures form part of the property transaction and are included in your purchase of the property, while chattels remain the property of the seller and they will take them with them as part of their sale.

It’s important to be aware though, that while most objects fall under the above general rule, there are exceptions. This is where disputes between a buyer and a seller can arise as to whether an object is to be considered a fixture.

A relevant case is that of Holland v Hodgson. In this case the court considered two circumstances relevant in determining whether an object is to be considered a fixture, or a chattel. The circumstances defined by the court were, the degree to which the object is fixed to the property and the purpose for its fixing to the property.

As detailed above, an object will in most cases, be a fixture where attached to the property by a means other than its own weight. However the court also found that the purpose of the fixing is relevant and that it must be considered whether the object was fixed for the better enjoyment of the land and building, or whether the object was fixed to the land or property for the better enjoyment of the object itself.

Where an object has been fixed to the property for more effective use of the object itself, such as a basketball hoop attached to a garage wall, then it will not be considered a fixture. However if the object is fixed for the better enjoyment of the property, such as a basketball pole attached to an inbuilt concrete court, then it will be considered a fixture.

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 Exceptions to the general rule:

  • Air-conditioning units installed in the property;
  • A dishwasher;
  • A timber house sitting on house stumps only by its own weight; and
  • A water tank resting on the land only by its own weight.

Examples of chattels which are not included:

  • Pre-fabricated transportable houses that can be moved without causing any damage to the land, despite being connected to sewerage and electricity;
  • A chandelier; and
  • Satellite dishes and antennas connected to the roof of the property.

Some practical tips you can take to protect yourself include quizzing the agent about which items will remain with the property and which the seller will take with them. Make a list of this information. The contract of sale will detail any fixtures that are excluded from your purchase and any chattels that will in included. Check that your list matches the contract before you sign in. Another tip is to take photos of these things in case a dispute later arises.

If you would like further information on what objects will be included in your purchase of a property, contact Icon Legal on 07 3399 6006, or email convey@iconlegal.com.au. We can provide advice to you before you sign a contract of sale.