The Property Law Act 2023 (PLA 2023), passed by the Queensland Parliament on 25 October 2023 and assented to on 2 November 2023, introduces the most significant changes to property law in Queensland in 50 years.

The Act repeals the Property Law Act 1974 replacing it with modernised provisions reflecting current commercial practice. The Act was the culmination of detailed consideration and consultation with many stakeholders, including the Queensland Law Society, REIQ, Property Council, UDIA and community title stakeholder groups and enacted a majority of the recommendations from the QUT Centre for Commercial and Property Law Report from 2017 about modernisation of property laws in Queensland.

A major change is the introduction of a new mandatory seller disclosure regime to ensure buyers of freehold land are given relevant information about a property before making the decision to purchase. The regime consolidates statutory and contractual requirements already applicable to most sales in Queensland by means of the standard contracts of sale.

Outdated and unnecessary provisions, such as those relating to unregistered or ‘old system’ land, and the provisions dealing with property settlement in de facto relationships have been removed, and areas of uncertainty and improvements to existing property laws have been addressed, including:

• an updated legal framework that reflects modern practice for electronic property transactions and the electronic creation and signing of deeds;
• substantial clarification, modernisation and updates to provisions relating to leases;
• clarifying the powers of mortgagees and the protections for mortgagors;
• enhancing the enforcement of easement covenants;
• improved provisions dealing with support for land and building between neighbouring land; and
• simplifying and updating the common law rule against perpetuities.

The government has allowed sufficient time for the necessary education and preparation work by affected legal, financial, property sector and community titles sector participants before the Act commences. The Act was proclaimed to commence on 1 August 2025.

Some of the major changes are outlined below with an emphasis on sections commonly used by property practitioners. The annotations have been updated to accommodate the new Act.

Orders for sale of co-owned property

The Act provides a simpler statutory framework for sale or division of co-owned property which is modelled on Part IV of the Property Law Act 1958 (Vic). The main changes are:

• The court may order a sale or physical division of land without appointing a statutory trustee to conduct the sale. A trustee may still be appointed if the court thinks this is necessary or desirable (s 37).   
• The court has a wide power to make any order that the case requires to ensure a just and fair sale or division of property (s 34). 
• To obtain an order for division of the property (rather than sale) it must be established that division is more just and fair than an order for sale.
•  In addition to the existing power to order an accounting between the co-owners, the court now has wider powers to make orders for compensation or reimbursement: ss 40-42.   

Deeds

• Electronic form and signing permitted
• Limitation period reduced to 6 years from 12 years

Current provisions validating electronic deeds will remain largely unchanged and apply to deeds signed by individuals, corporations, partnerships, statutory corporations, unincorporated associations and the State. These provisions do not affect the signing of instruments under the Land Title Act 1994. However, the limitation period of 12 years for suing on a deed will be reduced to 6 years by an amendment to the Limitation of Actions Act 1974.

Both guarantees and indemnities must be in writing and signed by the guarantor/indemnifier (s 69 of the Act). Both can be electronically signed, subject to any restrictions in the National Consumer Credit Protection Act 2009.

Sales of land

• Requirements of writing and parol interest unchanged

The principles governing the sale or disposition of an interest in land are largely unchanged in relation of the requirements of writing and signing (ss 7-10). Interests that may be created by parol are the same, including short leases, resulting, constructive and implied trusts. The common law rule about passing of risk has not changed but s 58 and s 63 Property Law Act 1974 related to claims on the seller’s insurance have been omitted.

• Rescission of contract of sale where dwelling becomes unfit for occupation after contract

The right of a buyer to rescind a contract of sale for a residential dwelling where it is so damaged or destroyed to be unfit for occupation in s 64 PLA 1974 is re-enacted in s 77. The buyer will have a right to rescind prior to settlement unless the seller restores the dwelling to its condition prior to the damage. If a seller restores the dwelling a notice must be given by the seller when complete allowing the buyer to inspect. The buyer’s right to terminate under s 77 expires when the property is restored.

Section 77 PLA 2023, unlike the existing s 64, gives the seller an opportunity to restore the dwelling to habitability before settlement if the damage to the property was light and capable of being fixed in the narrow window of time between its occurrence and settlement or earlier possession. In such a case, the seller, upon assessing the damage, should notify the buyer immediately and advise that the seller will be undertaking restoration and that they will advise the buyer when it is completed to enable an inspection to be carried out by the buyer. Nothing in the section prevents the buyer from rescinding at the time when the property is uninhabitable before restoration. Where restoration is undertaken, it is a matter for the buyer to assess whether it is satisfactorily restores the property to its original condition or not and settle or rescind as the case may be.

• Electronic settlement

Several provisions related to settlement have been updated to take into account electronic settlement including:

• extension of settlement to the next business day where it falls on a non-business day under the contract (new s 78);
• rights to extend the settlement date where settlement is prevented due to computers in the land registry being inoperative on the settlement date or in the case of an electronic settlement any computer system required for settlement being unavailable (new ss 79 and 80)

Section 78 provides for settlement on the next ‘business day’ (or as agreed) where the contract provides for settlement on a non ‘business day’ in the place where the contract is to be settled in the case of a paper settlement, or in the case or an electronic settlement, the location of the land. The expression ‘business day’ is contained in Schedule 1 of the Acts Interpretation Act 1954 where it is defined as ‘a day that is not—(a) a Saturday or Sunday; or (b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done’. The time of settlement applies ‘despite the terms of the contract’ (s 78(2)).

Section 70A of the existing Property Law Act 1974 is effectively re-enacted by s 79 of the Act where the buyer cannot verify the seller’s title because of inoperative computers in the land registry and a new s 80 is added where computers in any part of the electronic settlement process are inoperative both preventing settlement upon the day of settlement. In the first instance, (s 79) notice must be given by the buyer to the seller nominating a day, not less than 3 or more than 7 business days after the computers become operative again for settlement, and in the latter case, (s 80), the day of settlement becomes the next business day after the electronic system is again operational but excluding 27-31 December. If on the next business day the computer system is still inoperative, a further extension to the next business day will occur (s 80(6A).

• Adverse events affecting settlement

A new section which mirrors to some extent clause 6.3 of the REIQ contracts is enacted as s 81 of the Act. The section applies if an adverse event prevents one of the parties from attending settlement and delays an ability to delay settlement where a party is prevented from settling due to an adverse event.

Section 81 of the Act is similar to the current clause 6.3 of the standard REIQ Contracts permitting an extension of time for settlement where a party cannot complete the contract due to an adverse event as defined in s 81(9). This would include although not expressly so, the non-attending party’s solicitor as the party’s agent. In the context of electronic conveyancing, by parity of reasoning, this would include a situation where the solicitor, as an authorised person, could not, because of some adverse event, access a computer to attend to an electronic conveyance on the date of settlement.

• Mandatory Seller Disclosure

The most significant change to the law and practice is the introduction of a mandatory seller disclosure regime for all sales of land. Elements of the framework are as follows:

• applies to all freehold land, including units but there are a number of exceptions listed in s 100;
• applies to sales by private treaty and auction;
• seller is obliged to disclose information prior to contract and in the case of an auction prior to commencement of the auction;
• disclosure by the seller is required to be given using an approved form with some prescribed certificates attached;
• the information to be disclosed mirrors existing statutory, common law or contractual disclosure requirements, including a title search, registered plan, tree orders, contaminated land notice, heritage listings, transport infrastructure proposals. Some additional information is required such as a body corporate information certificate and a Community Management Statement. A BMS is not required to be attached but the existence of a BMS must be acknowledged by the seller in the disclosure statement;
• the disclosure must be accurate at the time it is given;
• if there is a material inaccuracy or omission in the disclosed information and the buyer was not aware of this inaccuracy or omission at the time of contract, the buyer may terminate; and
• if the buyer terminates there is no statutory right to compensation, but contractual compensation is not precluded.

Practice Notes  

The approved form of the disclosure statement and prescribed certificate is set out in the Regulations.

As well, alterations have been made to the standard REIQ/QLS Contracts of Sale to accommodate the introduction of this more extensive statutory disclosure. There are several other general matters to note which are apparent now from the Act.

1. It will not be possible to contract out of the seller disclosure requirement (s 98)
2. The requirement applies to all sales of registered lots under $10 million (incl GST) including residential and non-residential property.
3. Seller disclosure does not apply to sales of registered land over $10 million (incl GST) provided the buyer gives the seller(s) a notice waiving compliance with the requirement prior to contract. (s 100 (c) (ii) (A) and (B)).
4. The disclosure regime only applies to lots under the Land Title Act 1994 and does not include a proposed lot under the Land Sales Act 1994 or Body Corporate and Community Management Act 1997 or Building Units and Group titles Act 1980 or lots under the South Bank Corporation Act 1989 where existing requirements will continue to apply.
5. A buyer may terminate a contract up until settlement where:
   1. the seller fails to give the buyer a disclosure statement or a prescribed certificate before the buyer signs the contract; or
   2. the statement or certificate given to the buyer is inaccurate in relation to a material matter affecting the lot at the time it is given to the buyer AND the buyer at the time of signing the contract is not aware of the correct state of affairs AND had the buyer been aware of them, the buyer would not have signed the contract. This standard for termination is not the same as the ‘material prejudice’ test which is a subjective test as to how the failure or inaccuracy affects the buyer.
6. The only remedy is termination of the contract and refund of the deposit and any interest paid (s 105, s 106(1) and (2)). The Act does not give a buyer a right to any other compensation, including for an inaccurate prescribed certificate prepared by a third party eg. body corporate manager or secretary.
7. Certain sellers are not required to give disclosure (s 100) (See eg related parties (as defined in s 96), the State or statutory bodies, local governments, listed corporations, etc (as defined in s 95)
8. The disclosure statement and prescribed certificate may be given electronically (s 99(7) and s 102).

Leases

• Assignment of reversion subject to lease

The concept of covenants that touch and concern the land will no longer be relevant to determining the enforceability of covenants after a transfer of the reversion. According to s 140 PLA 2023, the benefit and burden of all covenants in a registered lease will run with the land unless:

• the term of the lease is expressly stated to be personal to the parties; or
• a term of the lease excludes the operation of the PLA or s 140 PLA specifically; or
• a lessor and the transferee of the land agree in writing that the benefit of a term remains with the lessor. This will enable the parties, for example, to retain the right to sue for arrears of rent.

Consistent with the current position, the transferor will remain liable for past breaches. An attornment notice to the lessee directing rent to be paid to the new lessor is required; s 141 PLA 2023.

This section will apply to all transfers of freehold land subject to lease after the commencement of the Act, irrespective of the date of the lease. This will mean a review of leases before a contract of sale is entered into to determine whether a lease has to be amended or whether the contract of sale will need to contain a clause that the benefit of a specified lease term will remain with the seller after transfer of the freehold. This is consistent with the current approach of excluding s 117 of the Property Law Act 1974 in relation to arrears of rent, except that under the new provisions the contract will need to spell out the specific right to remain with the seller.

When drafting a lease, the new section may be expressly excluded or specific covenants may be declared to be personal, which means the enforceability of lease terms after transfer of the freehold would be interpreted according to the express wording of the lease or, in the absence of these express exclusions,,by this new section.

• Assignment of Leases - enforceability of covenants

Similar to s 140 PLA 2023, s 143 provides that an assignee of a lease is bound by each term and entitled to the benefit of all terms in the lease except where:

• • A covenant in the lease expressly provides the term is personal to the parties;
  • A term of the lease excludes the operation of s 143;
  • The lessee and assignee expressly agree in writing that the benefit of the term remains with the lessee and either:
    • benefit of the term accrued to the lessee prior to assignment; or
    • the lessor consents to the benefit of the term remaining with the lessee.

The operation of this section is not affected by s 62 Land Title Act 1994 but is subject to agreement to the contrary.

As the practical operation of this section is subject to any contrary agreement in the lease or at the time of assignment, a consideration of the application of the section would need to be carried out at the time of every assignment of the lease. The agreement between the assignee and assignor that the benefit of any term remains with the assignor, with the consent of the lessor, should be documented by a tripartite Deed of Covenant.

The section applies to all leases regardless of when they were entered into.

• Release of subsequent assignee and guarantor post lease assignment

The legislation does not expressly release an assignor from the covenants in the lease upon assignment, so the current position after an assignment from one lessee to the next lessee is unchanged. However, if an assignee of the lease effects a further assignment to a subsequent assignee, s 144 releases the original lessee and their guarantors from liability under the lease for breach by a subsequent lessee.

The section cannot be altered by the terms of the lease or the guarantee.

The section will operate as follows:

1. A lease is entered into, after commencement, by Lessor A and Lessee B.
2. Lessee B then assigns to Lessee C (at this point Lessee B is not released and will be liable as a party to the lease to Lessor A).
3. Subsequently, during the term of the lease, Lessee C assigns to Lessee D. At this time Lessee B and their guarantors will be released in relation to liability for breaches of the lease by Lessee D. If there happens to be an accrued breach of the lease by Lessee C, Lessee B and their guarantor will continue to be liable for this breach (subject at all times to the operation of the covenants in the lease or the guarantee).

Consideration should be given at the time of a new lease post commencement to incorporating provisions in leases requiring new guarantors/security to be provided by the assignee as a condition of consent to an assignment.

Section 144 will only apply where the lease was entered into after commencement. (s 255(2)).

• Consent to assignment of lease, sublease, change of use or alterations

Various provisions related to consent from the lessor currently in s 121 PLA 1974 will be re-enacted in s 142. Similar to the current position, s 142 PLA 2023 applies if a provision of the lease requires the lessee to obtain the lessors consent, in which case the consent must not be unreasonably withheld.

A significant difference is that all requests for consent will be dealt with in the same way under s 142. If the lessee requests consent to an assignment, sublease, parting with possession, change to the permitted use, creation of a mortgage, or to carry out alterations or carrying out works the following will apply:  

• lessee is to give the lessor a proposal notice with all information required by the lease
• further information necessary for the decision can be requested by the lessor (giving a notice);
• a lessor is required to give a decision notice within 1 month of the lessor receiving all necessary information. The parties can agree to an extension of the date for the decision notice, during the 1 month period;
• the decision notice must state: If consent on conditions – the conditions of the approval; If consent is refused – the reasons for the refusal.

A lessee can apply to the Supreme Court for an order if consent is withheld or no decision notice is given. Importantly, this does not alter the right of an assignee to proceed with the transaction where the lessor has unreasonably withheld consent. It is likely that the unreasonable withholding of consent to a retail shop lease will continue to be dealt with under that regime given the cost of litigation of this matter in the Supreme Court.

The new section applies notwithstanding any agreement to the contrary [s 142 (11)] from the commencement of the Act regardless of the date of entry into the lease. A lessor can avoid the application of the section by prohibiting assignment, sublease, alteration in use, mortgaging of the lease or building works in all cases.

If the section applies ‘not unreasonably withhold consent’ will have the same meaning as existing s 121 Property Law Act 1974.

If the lease does allow a lessee to seek consent, consideration should be given to:

1. What information a lessee should be required to provide in the event consent is sought, this should be specified in the lease;
2. Whether agreed conditions of consent could be specified in the lease as being reasonable in the event consent is sought.

Note that a longer time for the giving of a decision notice cannot be specified in the lease but the parties may during the 1 month period extend the period by agreement.

Under the new regime, lessor’s will need to pay particular attention to the 1 month time period. Failure to comply gives the lessee the same rights as if consent was unreasonably withheld.

In the case of an assignment of a retail shop lease, the process in s 142 applies to a request for assignment. If the lessor does not provide a decision notice within 1 month of receiving full particulars the lessee, a retail shop lease dispute exists and the lessee can apply to QCAT for a resolution.

Easements

Enforceability of covenants between subsequent owner of land subject to easement

Under the current law, a positive covenant in an easement is subject to the general rule that such covenants are not enforceable against successors in title: Rhone v Stephens [1994] 2 AC 310 at 316-7. This principles has been applied in Queensland to covenants in easements obliging a party to pay for the cost of construction of road, drainage or infrastructure, (Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35) a covenant to keep the servient tenement free of noxious weeds (Fanigun Pty Ltd v Woolworths Ltd [2006] 2 Qd R 366 and an obligation to pay for use of an extension to a party wall (Rufa Pty Ltd v Cross [1981] Qd R 365). The application of this principle is not altered by registration of the easement.

Section 65 is aimed at ensuring both positive and negative covenants in registered easements are binding on subsequent owners. The section will have retrospective effect and will apply to all easements (including easements in gross), regardless of when the easement was entered into and parties cannot contract out of the section except by expressly providing in the easement that the covenant is personal to the grantor and grantee named in the grant.

The section will apply to positive or negative covenants related to “use, ownership or maintenance” of burdened land unless the covenant is expressed to be personal to the parties.

A non-exhaustive list of examples where the section will apply is provided in s 65(2) including covenants:

(a) to maintain or repair the burdened land; or

(b) to construct, maintain, repair or replace improvements or infrastructure on the burdened land used in connection with the easement; or

(c) to pay for or contribute to the performance of an obligation mentioned in paragraph (a) or (b); or

(d) to pay for or contribute to rates or taxes relating to the burdened land; or

(e) to indemnify a party to the easement in connection with the use of the easement; or

(f) to insure, pay for or contribute to insurance in connection with the use of the easement.

Electronic Service of documents required by Act or agreement relating to property.

The Act includes new default processes for electronic service of documents with a deemed service provision which overrides the rules in the Electronic Transactions (Queensland) Act 2001 but are subject to the terms of the contract.

Property Law Act 2023 (Qld), ss 229-233 will apply to service of documents required by the Act or any agreement, or other document related to property which authorises or requires the services of a document on a person.

When drafting or reviewing contracts of sale, lease, mortgages or other property related agreements consider if the rules imposed by the new sections are appropriate. This includes: 

• deemed time for service by post (7 business days) unless proved otherwise (s 231);
• provision for service if individual absent from State or deceased (s 232).
• electronic service permitted if address ‘designated’ by a person for service of documents (s 233). Electronic service will include sending an email with an attached document and sending an email with a link to a document.
• a document served by electronic means in accordance with s 233 will be deemed received at a certain time depending on when the electronic message is sent. See s 233(4). The operation of s 233(4) is subject to agreement to the contrary and does not apply if the time the message became capable of being retrieved is actually proven.

Perpetuities

The Act considerably modifies the law relating to the rule against perpetuities. The common law rule against perpetuities is abolished (s 200) and replaced with a statutory perpetuity period of 125 years for the vesting of a disposition of property to a person under a trust.  The intent is that the disposition must vest in interest by the end of the statutory period. A shorter period will apply if this is required under the express or implied terms of the trust: (ss 201 and 202). The ability to “wait and see”, reduce an age contingency, and exclude a non-complying member of a class have been retained: (ss 203-205). The new provisions will apply to dispositions made after 1 August 2025. Trusts that are already in existence at commencement date may have an option to “opt in” to the 125-year perpetuity period (ss 216-217). Sections 212 to 215 set out the circumstances where the statutory perpetuity period does not apply. The main exemptions of note are an option to purchase and right of pre-emption (s 213). 

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Property Law & Practice Queensland contains extensive author annotations to the Property Law Act 2023 by William Duncan, Emeritus Professor at Queensland University of Technology; Anne Wallace, Adjunct Associate Professor, School of Law, Faculty of Business and Law at the Queensland University of Technology and Professor Sharon Christensen, Head, School of Law, Gadens Professor of Property Law, Faculty of Business and Law, Queensland University of Technology.

The service includes the Land Act 1994 and Land Regulation 1995, which is annotated by Chris Boge, Special Counsel with Clayton Utz, Brisbane.

To subscribe to Property Law & Practice Queensland on Westlaw, contact Thomson Reuters.