Below is a brief summary of the statutory seller disclosure legal framework to be published in the December update of the Conveyancing Manual Queensland. More detailed commentary will be prepared progressively and added to the Conveyancing Manual Queensland in the lead up to 1 August 2025.

Legislative framework

Seller disclosure obligations are set out in Part 7, Division 4 of the Property Law Act 2023 supplemented by the relevant Property Law Regulation 2024, applicable Body Corporate and Community Management Regulation Modules and the Building Units and Group Titles Regulation 2008. Approved forms of seller disclosure statement and body corporate certificate have also been promulgated.
The overarching reform objectives of the seller disclosure framework are to:
•    clarify the disclosure obligations of sellers;
•    introduce a transparent  and effective form of disclosure;
•    provide information of value to the decision of a buyer to purchase; and
•    balance the information cost between buyer and seller (refer to the Final Report: Seller Disclosure in Queensland, Centre for Commercial and Property Law, QUT, 2017, 16).

Application 

The seller disclosure obligations in the Property Law Act 2023 will apply where a seller of a ‘lot’ proposes to enter into a contract for the sale of a lot on or after 1 August 2025. The provisions do not have retrospective effect and will not apply to contracts form on exercise of an option unless the option was entered into on or after 1 August 2025. Refer to Property Law Act 2023, s 251.

What is the obligation imposed on a seller?

Under Property Law Act 2023, s 99 a seller under a contract for the sale of a lot is required to give (i) a seller disclosure statement and (ii)  prescribed certificates to a buyer prior to the buyer signing a contract. There is however, a range of exceptions in s 100 which may apply to the seller, buyer or transaction. 
Some exceptions to the obligation to give disclosure documents are:
a.    a contract between related parties, as defined in s 96, where the buyer of the lot waives the requirement to give a seller disclosure statement in writing prior to contract. All sellers and buyers must be related to fall within the exception;
b.    contracts where the State or a government body is the buyer;
c.    sales or transfers between co-owners or for boundary realignments;
d.    contracts formed on the exercise of an option where the buyer and seller are the same as the parties to the contract; and
e.    sales of property where the price is more than $10 million (GST inclusive) and the buyer waives compliance with s 99 in writing prior to signing the contract.

What is a contract for sale of a lot?

Lot and contract for the sale of the lot are both defined terms in s 95. The effect of these definitions is that the obligation in s 99 to give disclosure documents prior to signing a contract will apply to:
•    a contract for the transfer of title to a lot registered under the Land Title Act 1994 for valuable consideration; and
•    an option of any type (put, call or put and call) for the sale or purchase of a lot 

A contract for the sale of a lot will not include:
•    a contract for the sale or transfer of a leasehold lot or lease;
•    an agreement for the exchange of property; 
•    a transfer of land from one party to another without consideration (a gift); 
•    an agreement to sell or purchase a proposed lot; or
•    sale of a unit in a building with company title.

When should the disclosure documents be given?

A seller disclosure statement and prescribed certificates must be given to the buyer prior to the buyer signing the contract for sale of a lot.
If the lot is sold by auction, Property Law Act 2023, s 101 deems the buyer to have signed the contract at the time of the fall of the hammer. To comply with the requirement in s 99(1) a seller should give a copy of the disclosure documents to all registered bidders prior to the commencement of the auction. Specific provision is made for giving disclosure documents to a buyer who is not registered prior to commencement of the auction in Property Law Act 2023, s 103.

For options, the seller (owner of the land) is required to give the buyer under the option the disclosure documents prior to the buyer signing the option. If the disclosure documents are given to the buyer prior to signing the option and the parties upon exercise of the option are the same, no further disclosure documents are required to be given at the time of exercise.  If a third party is nominated to exercise the option or as the buyer under a contract, the seller of the lot will need to give disclosure documents to the nominee prior to the exercise of the option.

How to give disclosure documents

A seller disclosure statement or prescribed certificate may be given to a buyer in any of the following ways permitted by Property Law Act 2023, s 101:
1.    by personal delivery to the buyer or leaving it at their place of residence or business or in the case of a corporation the registered office or place of business;
2.    by post to the buyer’s place of residence or business or in the case of a corporation, the registered office or place of business;
3.    by handing to or posting to the buyer a physical document stating that the disclosure documents can be viewed by using an electronic link (in the document) and the buyer may ask the seller for a copy of the disclosure documents (applies where the documents cannot be printed from the link). 
4.    If the buyer consents, by email that:
a.    Attaches the disclosure documents;
b.    Has disclosure documents in the body of the email; 
c.    includes an electronic link that allows the buyer to view and obtain a copy of the disclosure documents.

Prescribed certificates may be given with the seller disclosure statement but are not required to be attached to the disclosure statement. Section 101(4)(b) makes it clear that prescribed certificates may be given with the disclosure statement or separately, provided they are given prior to the buyer signing the contract.

Form of seller disclosure statement 

A seller disclosure statement is required to: 
a.    be in the approved form;
b.    contain the prescribed information and warnings;
c.    contain information that is true at the time it is given; and
d.    be signed by the seller, or their authorised agent: Property Law Act 2023, s 99(2)
The approved form is Form 2 under the Property Law Act 2023 available at https://www.publications.qld.gov.au/dataset/property-law-act-2023-forms/resource/7a1be178-d2d5-4744-9147-9699c04ee8d8  

The prescribed information is detailed in the Property Law Regulation 2024, s 8 and the prescribed warnings are set out in Property Law Regulation 2024, Schedule 1. The approved form contains all of the prescribed warnings. 

According to s 99(2)(d) the seller disclosure form is required to be signed by the seller. Although there is no specific reference to signing by an authorised agent in s 99, Property Law Act 2023, s 97 provides that anything required or permitted to be done by a seller may be done personally or by an authorised agent. 

Prescribed certificates

Prescribed certificates may be given with the seller disclosure statement or separately, provided they are given to the buyer prior to the buyer signing the contract: Property Law Act 2020, s 101(4)(b). All prescribed certificates are listed in Property Law Regulation 2024, s 5 which may be amended from time to time. The current prescribed certificates are;
•    a title search for the lot showing interests registered under the Land Title Act 1994 for the lot;
•    a copy of the plan of survey registered under the Land Title Act 1994 for the lot;
•    if the seller is required to give the buyer a notice under the Queensland Building and Construction Commission Act 1991, s 47 before the buyer signs the contract for the sale of the lot—a copy of the notice;
•    if the seller has been given a notice mentioned in the Building Act 1975, section 246AG, 247 or 248 or the Planning Act 2016, section 167 or 168 and the notice remains in effect immediately before the buyer signs the contract for the sale of the lot—a copy of the notice;
•    if the seller has been given a notice or order by a competent authority requiring work to be done or money to be spent in relation to the lot and the notice or order remains in effect immediately before the buyer signs the contract for the sale of the lot—a copy of the notice or order;
•    if the seller is required to give the buyer a notice under the Environmental Protection Act 1994, section 347(2), 369C(2) or 408(2) in relation to the sale of the lot—a copy of the notice;
•    an application or order in relation to a tree under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011;
•    any document given to the seller in relation to the location of transport infrastructure on the land or altering the dimensions of the lot; 
•    a notice of intention to resume the lot;
•    if there is a relevant pool for the lot— (i)a pool compliance certificate for the pool; or (ii)a notice under the Building Act 1975, section 246ATM that there is no pool safety certificate in effect for the pool;
•    if the lot is included in a community titles scheme—
o    a copy of the most recent community management statement for the scheme as recorded under the Land Title Act 1994, s 115L or another Act; and
o    either—
    a copy of a body corporate certificate for the lot; or
    if the body corporate cannot provide a certificate an explanatory statement outlining why a certificate is not available;
•    if the lot is included in a BUGTA scheme, either—
o    a copy of a body corporate certificate for the lot; or
o    if the body corporate cannot provide a certificate an explanatory statement outlining why a certificate is not available.

Prescribed information

Prescribed information for the seller disclosure statement is listed in Property Law Regulation 2024, s 8. The approved form includes this information or provision for the information, if relevant, to be provided to the buyer in the form. The information currently prescribed is:
•    the name of the seller of the lot, the address of the lot, the lot-on-plan description of the lot;
•    whether the lot is included in—
o    a community titles scheme; or
o    a BUGTA scheme;
•    the details of each unregistered encumbrance on the lot. Unregistered encumbrance is defined to mean unregistered leases, residential tenancy, an access agreement, opt-out agreement, deferral agreement or conduct and compensation agreement under the Mineral and Energy Resources (Common Provisions) Act 2014; an unregistered charge, mortgage, easement or profit a prendre known, or reasonably expected to be known, to the seller; a statutory encumbrance (as defined).
•    the zoning of the lot;
•    whether the property is recorded on the environmental management or contaminated land register under the Environmental Protection Act 1994;
•    whether the lot is subject to an environmental enforcement order to which the Environmental Protection Act 1994, section 369C applies;
•    whether the lot is subject to a prescribed transitional environmental program to which the Environmental Protection Act 1994, section 347 applies;
•    whether the lot is affected by—
o    an application or order in relation to a tree on the lot made under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011; or
o    a notice issued by a Commonwealth, State or local government entity and given to the seller about a transport infrastructure proposal to (i) locate transport infrastructure on the lot; or (ii) alter the dimensions of the lot;
o    the Queensland Heritage Act 1992 or is included in the World Heritage List under the Environment Protection and Biodiversity Conservation Act 1999 (Cth);
o    a notice of intention to resume the lot or any part of the lot issued by any entity;
•    whether there is a relevant pool for the lot;
•    if rates are payable for the lot—the total amount payable for all rates and charges (without any discount) for the lot as stated in the most recent rate notice;
•    if rates are not payable for the lot— a statement that the lot is a rates exempt lot; or a statement that the lot is not a rates exempt lot but no separate assessment of rates is issued by a local government for the lot;
•    if a water services notice is issued for the lot—the amount payable as charges for water services under the most recent notice;
•    if no separate water services notice is issued for the lot—an estimate of the amount payable for water services for the most recent stated period;
•    if the lot was subject to a residential tenancy agreement under the Residential Tenancies and Rooming Accommodation Act 2008 during the 12 months before the contract of sale was signed by the buyer—the day of the last rent increase, if any, for the residential premises;
•    if the lot was subject to a rooming accommodation agreement under the Residential Tenancies and Rooming Accommodation Act 2008 during the 12 months before the contract of sale was signed by the buyer—the day of the last rent increase, if any, for each of the residents’ rooms.

Disclosure documents for community title scheme lots and BUGTA schemes

If the contract is for the sale of a lot in a community titles scheme the seller is required to give the buyer prior to signing:
a.    a duly completed seller disclosure statement in Form 2;
b.    all prescribed certificates which in the case of a unit will include the currently recorded community management statement and a body corporate certificate.
A body corporate certificate is required to be prepared by the body corporate in Form 33 or form 34 under the Body Corporate and Community Management Act 1997. The content of the body corporate certificate is prescribed by the relevant Regulation Module applying to the scheme. 
If the body corporate advises in writing that it is unable to provide the certificate, the seller can instead provide the buyer with an explanatory statement with the reasons why the certificate is not available. Refer to Property Law Regulation 2024, s 6.
The same requirements albeit slightly modified apply to a BUGTA Scheme lot. The seller is required to give the buyer prior to signing:
a.    a duly completed seller disclosure statement in Form 2;
b.    all prescribed certificates which in the case of a BUGTA Scheme unit will include a body corporate certificate with a copy of the bylaws.
A body corporate certificate is required to be prepared by the body corporate in Form 18 under the Building Units and Group Titles Act 1980. The content of the body corporate certificate is prescribed by the Building Units and Group Titles Regulation 2008. If the body corporate advises in writing that it is unable to provide the certificate, the seller can instead provide the buyer with an explanatory statement with the reasons why the certificate is not available. Refer to Property Law Regulation 2024, s 7.

Accuracy of information in Seller Disclosure Statement or prescribed certificates

The disclosure documents provided to the buyer must be accurate at the time the information is given: Property Law Act 2023, s 99(2). There is no statutory obligation to update the information if it becomes inaccurate before or after the buyer signs the contract, but a seller should be wary of:
a.    engaging in misleading or deceptive conduct in the period between giving the statement and signing the contract, if the seller knows the information in the disclosure documents has become inaccurate. If the seller knowingly abstains from disclosing the changed information and as a result the buyer is under a false impression at the time of signing the contract, the seller may be liable to the buyer under the Australian Consumer Law.;
b.    ensuring compliance with any disclosure obligations in the contract of sale or requirements for certain title information which must be accurate at the time the contract is entered into. For example, a seller will ordinarily need to disclose title encumbrances which are not being released at settlement. If a new encumbrance has been registered after the disclosure statement was given but before the contract is signed, this encumbrance will need to be disclosed in the contract of sale. If the omission of the encumbrance is material the buyer will have a right to terminate the contract of sale prior to settlement.

Consequences of non-compliance with s 99

A failure to comply with all requirements of s 99 may allow a buyer to terminate the contract at any time prior to settlement under s 104. Non-compliance with s 99 will occur if:
a.    no seller disclosure statement is given at all or prior to the buyer signing the contract;
b.    a prescribed certificate is not given to the buyer prior to signing the contract; 
c.    information in the seller disclosure statement or a prescribed certificate is inaccurate, at the time it is given;
d.    the seller disclosure statement is not substantially complete because relevant information is missing.

In the case of (a) and (b) the failure to give a disclosure statement or prescribed certificate will entitle the buyer to terminate the contract under s 104 at any time prior to settlement. There is no requirement for the failure to be material. In the case of (c) and (d), a buyer will only be able to terminate the contract under s 104 if the inaccuracy or omission relates to a material matter affecting the lot which the buyer was unaware of at the time of signing and if the buyer had been aware of the correct state of affairs, the buyer would not have signed the contract.  In all cases if the failure to comply or inaccuracy is non-compliance with another statute then the remedy under that statute will apply instead of s 104. For example, a failure to give the buyer a notice about contamination on the land under s 408 Environmental Protection Act 1994, will give rise to a right for the buyer to rescind the contract under s 408.

Upon termination by the buyer, the seller is required to repay any amount paid toward the purchase of the lot including a deposit or part payment of the price and interest earned. Repayment of amounts paid by the buyer such as occupation rent or a contribution toward rates and maintenance is not required. Refer to Property Law Act 2023, s 105.
According to Property Law Act 2023, s 106 if a prescribed certificate obtained from a body corporate or other entity by the seller is inaccurate, the buyer’s sole remedy against the seller is termination under s 104. The purpose of s 106 is to prevent the buyer suing the seller for compensation arising from an inaccurate certificate provided by a third party and merely passed on by the seller.  Although this provision appears to absolve the seller from liability for inaccurate information it may not prevent a claim for misleading conduct if the seller makes separate statements or representations related to the certificate that mislead the buyer. 

Conveyancing Manual Queensland by author Professor Sharon Christensen is a practical step-by-step manual which is a core reference for conveyancing practitioners in Queensland.

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