Reviewing the Property Occupations Act 2014 (QLD)

MSI - Property Occupations Act 2014 (QLD)By Nicole Withers & Sylvia Lopez, Tucker & Cowen, Solicitors, Brisbane.

On 1 December 2014 the Property Occupations Act 2014 (Qld) (“POA”) commenced and is the update is relevant for all Real Estate Agents and Property Developers in Queensland.  POA and ancillary legislation replace the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”).

Key Changes under POA 

There have been a number of key changes following the commencement of POA, including the abolishment of the Form 30C Warning Statement and Form 14 BCCM Information Sheet.  POA now prescribes particular words that must be inserted in the contract immediately before the signature of the purchaser.  Failure to insert the prescribed words will not provide a right to terminate, however the seller (or the seller’s agent) commits an offence.

Purchasers of residential property will continue to have a five business day cooling-off period, however a purchaser may now waive the cooling off period without seeing a solicitor.

Failure to give proper notice of the cooling-off period on a residential contract can result in a penalty of up to $22,000.

Changes to the definition of ‘Residential Property’ 

The term Residential Property is now defined in s21 of POA as “real property that is used, or is intended to be used, for residential purposes but does not include real property that is used primarily for the purposes of industry, commerce or primary production”.  Whether or not the property is ‘intended’ to be used for residential purposes has already been identified as an area of concern, and where there is any doubt as to the intended purpose of the property, a contract should comply with the requirements of POA.

Property sold at Auction

Where a property has been passed in at auction, and is sold to a registered bidder before 5pm on the second clear business day after the property is passed in, the cooling-off period will not apply.

Seller’s Agents and Licensing 

Licences for the sale of property under PAMDA have been abolished and replaced by one real estate licence under POA.  A company can now hold a real estate agent’s licence without the requirement that a director of the company hold a licence, provided that the executive officers of the company satisfy the suitability criteria.  POA also removes the maximum commission rates that can be charged on residential sales.  New forms for the appointment of an agent have now been released.

The terms of sole and exclusive agency appointments have been increased from 60 day to 90 days.  Any appointment exceeding 60 days can now be terminated by either party giving 30 days written notice provided that the appointment will continue for a minimum of 60 days from the date of appointment.

Property Developer Licences

Property developer licences have now been abolished, however there are certain disclosure requirements that a property developer must make.  The disclosure must be given in the approved form.

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