With a little more than a week away before the new Property Law Act 2023 (Qld) (“PLA 2023”), encompassing the most comprehensive set of changes to Queensland’s property laws in around 50 years, supersedes the current Property Law Act 1974 (Qld), here’s a round-up of the key highlights from our team of experienced property lawyers at HTW Legal Group.
Seller’s Disclosure Statement
One of the major and most notable change of the new PLA 2023 involves the establishment of a mandatory disclosure framework affecting sellers of both residential and commercial properties, including sales conducted through auction and negotiated agreements.
Under the new PLA 2023, sellers now bear the obligation of providing a completed and signed Form 2 Seller Disclosure Statement along with the necessary prescribed certificates to the buyer before the contract of sale, or call option deed, is executed.
For more information, please refer to our article on – New Seller Disclosure Regime in Queensland.
No Independent Conveyancers in Queensland
On the topic of conveyancing, in an article posted on Australia Conveyancers, the debate continues surrounding the introduction, or rather the re-introduction, of licenced conveyancers in Queensland.
In recent times, Ann Blannin-Ferguson, President of the Australian Institute of Conveyancers NSW, has written to both the Queensland Law Society and Queensland Premiere David Crisafulli, advocating for the reinstatement of licensed conveyancer as an official profession in Queensland.
So far, the only response from the Queensland Government has been a brief statement confirming that “the Government is not currently considering any changes to the relevant laws”. Likewise, Genevieve Dee, President of the Queensland Law Society, has also made a supporting stand in line with the Queensland Government against licencing independent conveyancers in the sunshine state.
While the debate rumbles on, as of the writing of this article, licenced conveyancers are only allowed to operate independently in the state of New South Wales, South Australia, Western Australia, Northern Territory, and Victoria.
In Queensland and Australian Capital Territory, paid conveyancing work is handled by registered solicitors, or property lawyers only.
Changes To Lease Regulations
Another significant change under the new PLA 2023 relates to the ongoing liability of a lease assignor and any guarantors upon subsequent assignments of the lease.
Under the common law, if the current assignor assigns the lease to another assignee, the original assignor and any guarantors can still be made liable for the subsequent assignees’ breach of the lease that occur during the lease term.
Essentially, the new PLA 2023 removes this ongoing liability for breaches committed by any subsequent assignee, despite any agreement to the contrary.
However, it is important to note that in the absence of an express release, or operation of a statute, to the contrary, while not liable for the breaches of subsequent lessee, the original assignor and its guarantors will still be liable for any breaches.
Lease processes are also now furthered defined, with clear process and timeframes in place for tenants seeking landlords’ consent with regards to things such as, lease assignments, sublease or change of use of the premises.
Landlords must not unreasonably withhold that consent, they are now imposed with a one month statutory timeframe in which they are required to give the tenant a decision notice regarding the tenant’s proposed request.
Tenants are now given the express right to apply to the courts for damages should the landlord fail to provide its’ decision regarding consent or if the consent withheld is unreasonable, unnecessary, or onerous.
Additionally, the new PLA 2023 establishes a framework for the enforceability of covenants in lease assignments. Lease terms, subject to some exceptions, now bind assignees to the extent the lessee was before the assignment.
Trusts and the Abolition of the Rule Against Perpetuity
Lastly, the current common law rule against perpetuities mandates that any interest in a property must be vested earlier than 21 years after the death of a person alive at the time of the interest creation, with an option of further perpetuity period of up to 80 years under the current Property Law Act 1974 (Qld).
Under the new PLA 2023, that rule is now abolished. In its’ place, a new fixed perpetuity period of up to 125 years from the trust creation is introduced.
The 125-year period commences from the date of the disposition of the property to the person under the trust, with an option to create a Trust Deed with a shorter perpetuity period.
Subject to the terms of the Trust Deed, existing trustees may adopt this new 125-period rule by amending the vesting date. Beneficiaries may also unanimously agree to vary the vesting date by executing a deed of variation to the Trust Deed.
Consideration must also be given with respect to any potential tax or duty implications when varying the trust deed. You should obtain taxation advice prior to making the any change to your trust deed.
Reduced Statutory Limitation Period for Actions on Deeds
However, not all changes under the new PLA 2023 are restricted to the act itself.
One of the changes which will impact the construction and infrastructure industry, is a modification to the Limitation of Actions Act 1974 (Qld).
Under the Limitation of Actions Act 1974 (Qld), any action on a deed must be brought within 12 years of the cause of action arising.
However, with the introduction of the PLA 2023, the limitation period has been reduced to 6 years, aligning it with the limitation period for actions under a contract, and creating an inconsistency in Australia Commonwealth laws, with the otherwise largely uniform 12 (and in some cases, 15) year limitation period for deeds nationally.
HTW Legal Group – Your Trusted Gold Coast Property Lawyers
At HTW Legal Group, our property lawyers stay at the forefront of legal developments to ensure our clients receive timely, informed and expert guidance.
What sets our team apart from other Gold Coast law firms is our commitment to delivering relevant advice that leads to favourable outcomes.
📞 Contact HTW Legal Group today or order yours directly at our Seller Disclosure Statement page.
