Welcome to Malanda Law, your country law firm based in Far North Queensland. We understand that conveyancing can be daunting, but our team is here to guide you every step of the way.
We have developed this resource, the “A to Z of Conveyancing in Queensland” to break down the complicated terms and meanings that go hand-in-hand with conveyancing, in one easy-to-read document.
We invite you to take a look at the “A to Z of Conveyancing in Queensland ” or simply reach out to our team at Malanda Law if you require any assistance. We pride ourselves on being accessible and partnering with our clients to achieve their goals.
Take a look at what some of our clients have to say about us (at insert link to testimonials on Home page).
We offer a convenient email quote, where we can quickly provide a Fixed Residential Conveyancing Fee quote for your next residential conveyancing transaction.
Note: Malanda Law provides a ‘fixed fee’ residential conveyancing service. All other conveyancing matters are competitively quoted.
Disclaimer: All information in the “A to Z of Conveyancing in Queensland” is general in nature and is not to be relied upon or considered specific legal advice.
Common Terms and Meanings in Queensland
The law surrounding property transactions can be complex and nuanced. If you haven’t studied law or are not confident in its application, it is highly recommended to consult with a qualified legal practitioner or conveyancer before signing any contract.
Seeking a pre-contract review ensures that you have a professional assess the terms and conditions of the contract to protect your interests and rights. By doing so, you can gain a clear understanding of the legal implications and potential risks associated with the contract, allowing you to make an informed decision.
A to Z Conveyancing Terms
Building and Pest Condition: is the date recorded in a contract by which a buyer must notify the seller whether they are satisfied with the results of their building and pest inspections and wish to proceed with the purchase.
A buyer may validly terminate the contract under the building and pest condition providing they are acting reasonably (i.e., taking the age and use of a property into consideration) and their inspection report/s identified significant defects in the dwelling. Upon valid termination of the contract, the seller will authorise release of the Deposit to the buyer.
Contract Date: The Contract Date is the date on which the last party signed the contract. The due date of some conditions of a contract will either be a specific date or a number of days from the Contract Date.
Cooling Off Period: Every standard residential contract of sale in Queensland comes with a statutory Cooling Off Period of five (5) business days from the date that the buyer or their legal representative receives a copy of the fully signed contract.
If the buyer so chooses, they may terminate the contract for any reason whatsoever by instructing their legal representative to give written notice terminating the contract under the Cooling Off Period to the seller or the seller’s legal representative before 5pm on the last day of the Cooling Off Period.
A buyer may waive their rights under the Cooling Off Period by giving written notice to the Agent, or the seller or the seller’s legal representative before entering into a contract.
When a buyer exercises their right to terminate a contract under the Cooling Off Period, the seller will have a right to claim a penalty of 0.25% of the purchase price from the buyer’s deposit before refunding the balance to the buyer.
Deposit: Unlike the deposit that a financial institution may discuss with you when applying for a home loan, the contractual Deposit is a financial commitment that you pay to the Agent (or Seller’s solicitor if there is no Agent) when you sign a contract. It is a demonstration of good faith that you are a genuine buyer willing to complete your obligations under the terms of the contract.
The amount of a contractual Deposit is limited to 10% of the purchase price, however, the Seller may agree to accept less than that in certain circumstances.
Disclosure Statement: is a declaration that the seller of a unit, duplex, or townhouse (strata titled property) must sign and provide to the buyer before entering into any contract of sale.
Failure to provide the Disclosure Statement will allow the buyer to terminate the contract up to settlement date.
Electrical Safety Switch: Every property sold must have an electrical safety switch installed by settlement date.
Electronic Conveyancing (eConveyancing): enables lawyers and financial institutions to access a secure digital platform to prepare, sign and then lodge all the legal documentation needed for transfer of property ownership and financial settlement between a seller and a buyer.
Note: eConveyancing became mandatory in Queensland on 20 February 2023.
Fee Simple: is the term recorded on title of land that is freehold.
Finance Condition: is the date under a contract by which a buyer must notify the seller whether they have received a satisfactory offer of finance from a financial institution.
The buyer to validly terminate a contract under the finance condition if they have taken all reasonable steps to obtain finance for the purchase and received advice from their financial institution that the loan application has been declined. Upon valid termination of the contract, the seller will authorise release of the Deposit to the buyer.
Joint Tenants: is one of two ways to own property jointly with others. A property owned as Joint Tenants is owned in equal shares and subject to the legal rule of survivorship. This means that upon death, the share of the deceased joint tenant passes to the surviving joint tenant/s.
Owning property with others as Joint Tenants is most common between spouses and applies to both funds held in joint bank accounts and to jointly owned real estate.
An example of the operation of the survivorship rule between spouses who own property as Joint Tenants is when one spouse dies, the surviving spouse owns the entire property in their sole name.
Note: the surviving spouse must provide a certified copy of their spouse’s death certificate to their financial institution and Titles Qld office to ensure that the deceased spouse’s name is removed from the joint bank accounts and property titles.
Joint tenancy can be held by two or more property owners who own property jointly.
Leasehold: is the term recorded on title of land that is leased (often from the State Government). Note: this type of tenure may be subject to native title claims.
Neighbourhood Disputes: A seller is required to declare to the buyer any action commenced in the Queensland Civil and Administrative Tribunal (QCAT) either against the seller by a neighbour or by the seller against a neighbour in relation to dividing fence or tree disputes.
Failure to declare such action will result in the buyer having a right to terminate the contract anytime up to settlement date.
Pool Safety Certificate: Where a pool exists on private property the seller must give the buyer a current Pool Safety Certificate at the time of entering into the contract.
If there is no current Pool Safety Certificate, the seller must provide the buyer with a Notice of No Pool Safety Certificate prior to entering into the contract.
Note: If a buyer accepts a Notice of No Pool Safety Certificate from a seller, the buyer must obtain a Pool Safety Certificate at their own cost no later than 90 days following settlement of the contract. Any agreement where the seller will obtain a Pool Safety Certificate prior to settlement date should be incorporated into the contract as a special condition.
Settlement Date: is the date recorded in a contract for completion of the transaction between a buyer and seller. Settlement will not occur until all conditions of the contract are either satisfied or waived, the parties have agreed on the financial adjustments for outgoings and respective financial institutions of the parties (if applicable) are ready to either draw down loan funds from a new loan (buyer) or discharge an existing loan (seller).
Smoke Alarms: From 1 January 2022, under new legislation properties being sold must be installed with complaint smoke alarms by the settlement date.
If a seller fails to provide written evidence issued by a licensed electrician stating that the smoke alarms are compliant, the buyer will be entitled to reduce the amount paid to the seller at settlement by 0.15% of the purchase price.
Smoke alarms in the dwelling must:
i) be photoelectric (AS 3786-2014); and
ii) not also contain an ionisation sensor; and
iii) be less than 10 years old; and
iv) operate when tested; and
v) be interconnected with every other smoke alarm in the dwelling so all activate together.
Smoke alarms must be installed on each storey:
i) in each bedroom; and
ii) in hallways which connect bedrooms and the rest of the dwelling; or
iii) if there is no hallway, between the bedrooms and other parts of the storey; and
iv) if there are no bedrooms on a storey at least one smoke alarm must be installed in the most likely path of travel to exit the dwelling.
Smoke alarms must be hardwired or powered by a non-removable 10-year battery, or a combination of both may be allowed.
Tenants-In-Common: is a different way of owning property jointly with others. Unlike joint tenants which must be held in equal shares, property owned by parties as Tenants-In-Common may be held in any variation of shares, e.g., 50/50 or 60/40 or 20/20/60.
As Tenants-In-Common, when one property owner dies their share in the jointly owned property passes in accordance with the instructions in the deceased’s Will (or if they do not have a Will, in accordance with the Rules of Intestacy).
Time of the Essence: is the agreed expectation that each party will do everything they promised to under the terms and conditions of a contract by the due date recorded within. Failure of a party to comply with their obligations by the due date may be deemed a breach of contract resulting in enlivenment of the other party’s right to terminate, and in the case of a breach of an essential term of the contract, to seek financial restitution from the buyer through legal action.
Note: unless expressly deleted in its special conditions, the standard terms of a residential contract were recently amended and now incorporate a unilateral right for either party to extend the original settlement date without penalty for up to five (5) business days.
Vacant Possession: is a requirement that the seller provide the buyer with possession of the property at settlement. If a tenancy will continue past settlement date, details of the tenant, lease and rent must be recorded in the contract to avoid the buyer gaining a right to terminate the contract and take legal action against the seller for not providing vacant possession.
Vacant possession also means that the seller must remove all personal possessions, including rubbish or refuse, from the property by settlement date.
Water Licence: is a licence or permit to take groundwater issued under the Water Act 2000. Groundwater or underground water is the water beneath the earth’s surface that occurs in pore spaces and fractures of rock formations called aquifers. Groundwater is regulated and you may need authorisation before you can access it. An example is water you may draw from a bore, title of which will pass to the new owner of the land when the land is sold.
Note: authority to construct works infrastructure such as water bores or wells is issued under the Planning Act 2016. It is important to understand that a licence or permit to take groundwater does not authorise the construction of works such as water bores or wells.
Taking of groundwater for stock and domestic purposes is allowed without a licence or permit unless regulated through the Water Regulation 2016, a water plan, or a moratorium notice.
Water Allocation: is an authority to take a share of water available under the water resource in a catchment managed by the State Government.
A water allocation has its own separate title which is registered under the Water Allocations Register and can be bought and sold independently in a similar way to buying and selling land. This enables water allocation holders to buy water to expand their operations or sell water they don’t need.
Anyone can buy a water allocation – you do not need to be a landholder – however, movement of the water is restricted by trading rules specified in a water management protocol or the Water Regulation 2016.
Like land, water allocations may also be subdivided or amalgamated.
Conclusion
Conveyancing is a high-stakes process and, if you feel that there are issues with your conveyance, please seek legal advice as a matter of priority.
Disclaimer: All information in the “A to Z of Conveyancing in Queensland” is general in nature and is not to be relied upon or considered specific legal advice.