QLD duty of disclosure

[samsmith]

Hi

I have engaged a Solicitor to handle this, but we have differing opinions and I am not convinced of our current position.

This relates to our sale of a qld residential property.

The matter relates to what extent of Duty of Disclosure is required by sellers. At this point in time, our solicitor has advised we need to inform the purchaser of anything "within our knowledge" about the property we sold.


But several things come to mind... and my query is probably best represented by examples, which I hope someone can shed light on (or at least direct me to the precise qld legislation that mandates the requirement).


Example:

1) If our property had termites in 2009 and we engaged a licenced professional to remove the termites and repair the structure. To the best of our knowledge, there are no more termites or damage, do we have to disclose information about past termites and repair?


2) if the property had asbestos on it and it was removed by a licenced contractor in 2010, and to the best of our knowledge we believe there is no more asbestos at the property, do we now have to disclose that the property did have asbestos at one stage (even though the licenced contractor removed it) ?

3) if the property had soil contamination in the back yard (eg small scale contamination... and not significant enough to be registered on the CLR or EMR), but this contamination was removed by a licenced contractor in 2011... and to the best of our knowledge, there was no more soil contamination, do we have to disclose that the property did have soil contamination at one stage?


The issue we have is essentially declaring something that we engaged a licenced contractor for... and it seems that we have to bear resposiblity for their work.


I hope you can assist.

sam

 

[Rob Legat - SBPL]

Firstly, the sale of residential property in Queensland is a combination of various statutes and the common law – so pointing you to a particular ‘precise Qld legislation mandate’ is likely impossible, and to be frank I’m not going to spend the time tracking down the exact authority and/or section which is relevant.

A large part of land sale comes down to the contract, and the laws pertaining to contract (which are in themselves a combination of statute and common law). My answer is going to suppose you’re using the most common, current form of contract – the REIQ Contract for Houses and Residential Land, 16th Edition. There are different versions for CTS lots (strata), and commercial land. Heaven help you if you are buying off the plan, or the agent has used the ADL contract template… they’re different.

Next: bear in mind that the contract has specific warranties and representations attached to it (see, generally, standard conditions 7.1 to 7.8), and that any statements made by you, the agent on your behalf, or your legal representative can form part of those representations. That includes answers to specific questions asked. So for the below responses: If you are asked specifically about a particular issue, you cannot lie. You can refuse to answer, or tell the truth. Saying you don’t know when you do is a lie.

That being said, to respond to your examples:
1. No, the defect has been rectified. You only need to disclose current hidden defects. It’ll likely show up on a building and pest report anyway.
2. No, the defect has been rectified. Retain the evidence anyway. A building and pest inspection may raise query based on the age/composition of the remaining structures.
3. Disclosure is only required if the land is on the Contaminated Land register. All prudent lawyers will search the register anyway. This is specifically covered in standard condition 7.4(3) of the contract.

 

[samsmith]

Rob

Thanks for that. It was really thorough and I appreciate your time. It all makes sense.

As you probably gathered, we did not want to be held responsible for "other peoples" work. If i have interpretted your response correvtly, if those issue(s) were rectified by a competent and licenced person, then this would effectively "reset" our knowledge, and thus would not constitute as a lie.

 

[Rob Legat - SBPL]

Yes, so long as you are aware that simply having it rectified by someone else who is reputedly competent and licensed does not excuse you if you are aware of anything which would indicate it is not fixed - e.g. exclusions to the repairs, reports of further/not rectified damage, reasonably available evidence that it wasn't fixed properly or further damage has been sustained, etc.