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The Queensland government has amended legislation to make it mandatory for sellers of residential property to complete and sign a sustainability declaration (SD Form) from 1 January 2010. The legislation which was amended is the Building Act 1975 (Qld) and the Property Agents and Motor Dealers Act 2000 (Qld). These changes will have a significant impact on the sellers of residential property in Queensland, and the real estate industry.
The major impacts for sellers and real estate agents are summarised below:
• It will be mandatory for sellers to complete the statutory sustainability declaration (SD Form) before their property (any residential home or unit) is marketed for sale (either through private sale or with an agent). This requirement will apply to all properties being marketed as at 1 January 2010. This includes new listings from 1 January, plus existing listings being marketed as at 1 January;
• The seller or agent must not publish a relevant advertisement (defined later in this fact sheet) unless the advertisement includes information about where a person may obtain a copy of the sustainability declaration (SD Form). For example, agents may include in their internet advertising and window card words such as ‘the sustainability declaration for this property can be obtained by contacting the agent’;
• The seller or agent cannot give a prospective buyer a brochure (or other similar document) marketing or advertising the sale of the property unless the person has been given either a copy of the current sustainability declaration (SD Form) OR a copy of the (SD Form) accompanies the document;
• At any time the property is open for inspection (by either the seller or agent) the sustainability declaration (SD Form) must be conspicuously displayed so prospective buyers entering the property can view the declaration. If the property is an inspection by appointment (as opposed to an open house), the prospective buyer must either be given a copy of the declaration prior to entering or the declaration must be conspicuously displayed during the inspection time;
• If a prospective buyer requests a copy of the declaration, the seller or agent must give them a copy of the SD Form as soon as practicable. This can be supplied electronically;
• If a buyer incurs a loss or expense because the seller provides a false or misleading declaration or the SD Form is not prepared with reasonable skill and care, the seller may be liable to compensate the buyer for the loss or expense;
The buyer will have no right to terminate a contract if the SD Form is incomplete or contains information that is false or misleading.
Agents will not be able to publish a relevant advertisement unless the advertisement includes information about where a person (prospective buyer) can get a copy of the declaration (SD Form). Publish is defined as “to publish on the internet or cause to be published” and relevant advertisement is defined as “an advertisement in any form or medium, other than an advertisement in a newspaper or magazine or a generic for sale signboard”.
If the property is marketed (advertised) on the internet or promoted in any form OTHER THAN magazine or newspaper, reference must be made in the marketing (advertising) as to how the prospective buyer can obtain a copy of the declaration (SD Form). For example; window cards must also refer to how the sustainability declaration can be obtained.
If the property has a specially made for sale sign board (not a general for sale sign), the sign board must include reference to where a prospective buyer can obtain a copy of the declaration (SD Form). The requirement of disclosing to prospective buyers of where a copy of the declaration can be obtained does not extend to other forms of marketing such as an advertisement published in a newspaper or magazine.
If the property is opened, other than for an open for inspection, as mentioned previously, the agent must ensure that the prospective buyer has either:
- A copy of the declaration before entering; or
- A copy of the declaration (SD Form) is made available before the person enters and the person is advised that a copy is available for inspection; or
- A copy of the declaration (SD Form) is conspicuously displayed at the dwelling so the person entering can easily read it.
It is strongly recommended that real estate agents DO NOT assist the sellers in completing the form. There may be a significant risk exposure to agents if they assist or complete the form for the seller. Agents are advised to educate sellers of their obligations at law and that it is not part of an agent’s duty to complete the statutory paperwork on their behalf – agents are conduits of the information. The agent’s duty is to ensure that the sustainability declaration (SD Form) is completed before the property is marketed for sale.
Absentee sellers, including investors, may have to engage a suitably qualified third party to complete the declaration on the seller’s behalf. The Building Act imposes a legislative duty on all sellers of residential houses and units in Queensland to complete the declaration or to appoint a representative, or third party such as a builder to complete the form. It is important to note that the Building Act requires the seller to sign the form. The signing of the form cannot be delegated to a third party, other than a duly authorised person legally, such as through a power of attorney. If agents assist the sellers in providing a third party to complete the form, agents should ensure that the third party has public liability insurance, professional indemnity insurance and for risk management, has completed a contractor appointment form.
It is recommended that agents direct sellers to the relevant government department website, and/or download government fact sheets and include these as part of the listing kit. The guidelines will support the mandatory sustainability declaration (SD Form). The two-page sustainability declaration (SD Form) consists of four key parts; water, access, safety and energy, and includes a household report card.
The government in part has said that the declaration is an educational tool to create further awareness about sustainability and housing. There are substantial penalty units (fines) for agents associated with failure to comply with the new provisions. The fines are a maximum of 100 penalty units, which equates to $10,000. Sellers may face fines of up to $2,000 for breaching particular provisions.
Agents:
Save time and resources by cutting and pasting the line below in to your email signature block:
'Sustainability Declaration Information & Forms - Click here'
Disclaimer
This website is not a comprehensive statement of the law. The laws referred to can be complex and various qualifications may apply to the provisions in different circumstances. You are encouraged to obtain independent legal advice if you are unsure if the laws apply to your situation.
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