Buying and selling real estate property in Queensland is covered by many different laws. Also a variety of government and professional organisations manage and control the conduct of people who work in the real estate business. Real estate property includes land, houses, units, townhouses, retirement villages and timeshare.
Buying or selling your property is a huge financial commitment and you should carefully think about who you deal with. Before signing anything you should get legal advice. The Queensland Law Society can refer you to a solicitor who can give you advice on buying or selling your property.
Who do I need to see when buying or selling real estate?
If you deal with licensed agents, the way they take care of the buying or selling property is controlled by the law, Property Agents and Motor Dealers Act. This means that licensed agents must meet certain industry based standards and codes of conduct. The law provides for legal processes and fines if registered agents do not act appropriately. If you buy or sell property privately, you will not be protected by these laws. Licensed agents are also controlled by a strict code of conduct required by the Office of Fair Trading and the Real Estate Institute of Queensland (REIQ).
Do I have to sign a contract when I buy or sell real estate?
Contracts for the sale of real estate must be in writing. There is a standard contract used in most cases which is approved by the REIQ and the Queensland Law Society. You might want to make the contract conditional on some things happening. You should think about whether you want to make the contract conditional on:
- satisfactory building and pest inspection
- getting a loan to finance the purchase
- selling your existing property
A lawyer will be able to advise you on important conditions, so before you sign anything you should get legal advice.
Is there a cooling off period if I sign a contract?
Yes. There is a cooling off period of five business days for the sale of residential property. The cooling off period starts on the day you receive a copy of the contract signed by both parties if that day is a business day or the first business day after you receive the signed contract from the seller. The cooling off period ends at 5pm on the fifth business day.
You can waive or shorten the cooling off period by giving written notice to the seller.
You can cancel the contract during the cooling off period by giving a signed notice of termination to the seller. If you cancel the contract in the cooling off period then you may have to pay the seller a termination fee. This may be deducted from any deposit you have paid under the contract.
The cooling off period does not apply to the sale contracts of residential property where:
- the sale was by auction
- the contract was entered into 2 days after an auction with a registered bidder for the auction
- contract formed because of the exercise of an option granted under an earlier contract, if the parties to both the earlier and later contract are the same
- if the buyer is a publicly listed corporation or subsidiary of a publicly listed corporation
- if the buyer is the State or a statutory body
- a contract if the buyer is purchasing at least 3 lots at the same time.
Do I have to pay a deposit when buying real estate?
You usually pay a deposit. Sometimes the seller will accept a small deposit on signing the contract with the rest of the deposit to be paid once the contract becomes unconditional. There is no set amount for a deposit, it is up to the buyer to say how much they will accept.
What happens after I sign the contract?
It will take some time for the sale of the property to be finished and the process, which happens after the contract is signed is called conveyancing. Conveyancing involves all steps necessary to make sure that the registration of the land is in the name of the buyer at the government's land title office. During the conveyance period, searches are done to make sure that the property is owned by the seller and that it is not affected by things such as proposed reclaiming of land, contaminated land, easements or other government requirements.
You should get legal advice even if you plan to do your own conveyancing.
What happens at an auction?
If you decide to buy or sell a property at auction, generally the property will be offered for sale to the highest bidder. If your bid is accepted then you are required to sign an unconditional contract immediately. This means that if you want to buy at auction you need to do a lot more work beforehand to check everything out.
What is a mortgage?
If you borrow money to buy, build or renovate a property from a bank, building society or other lender you usually do this with a mortgage. The lender (called the mortgagee) creates a legal document (called a mortgage) where you (the mortgagor)offer the property as security until you pay out the loan. That means if you do not make payments on the loan, the lender has the right to sell the property to recover all that you owe them. The sale of the property is called a mortgagee sale.
In a mortgagee sale, the lender must sell the property for a reasonable market value. The lender is then entitled to keep money from the sale to cover the costs of sale and all money which is owed by you. If there is money left over it will be paid to you.
If there is not enough money from the sale to cover all that is owed to the lender, then you will remain legally responsible for the extra amount and the lender can take you to court you to recover the money that is still owing.
What are the different ways to own property?
In Queensland, you can own property either as a joint tenant or tenant in common.
What is the difference between owning a property as a joint tenant or tenant in common?
When you own a property as a joint tenant, you and the other joint tenants own the property together. It is not divided into shares, you each own the whole property together.
If you own property as a joint tenant you cannot leave that property in your will. When a joint tenant dies, their ownership in the property automatically passes to the surviving joint tenants. If you are the only surviving joint tenant then you will be the sole owner of the property.
If you want to end a joint tenancy you should get legal advice.
If you own property as a tenant in common you own a defined share of the property. This might be an equal share with the other owners or percentages might be defined (eg 50% each, or 25% and 75%).
As a tenant in common you can transfer your share to someone else, so you can leave your share in the property in your will.
If there is a dispute between myself and other owners of property what should I do?
If you are married and you have separated, or if you were in a de facto relationship (including same sex relationship) and have separated after 1 March 2009, then the dispute about property is decided under the Commonwealth family law.
If you were in a de facto relationship (including same sex relationship) and you separated before 1 March 2009, then your dispute will be decided in the state courts and state de facto property laws. Couples who separate before 1 March 2009 may be able to choose for their matter to be heard under the Commonwealth legislation if both parties consent. Clients should get independent legal advice from a private lawyer to assess which legislation to apply under.
If you are not married or in a relationship and there is a dispute about the property with another owner, then the state laws apply and you or the other owners can ask the court for the property to be sold and the proceeds of sale divided.
The law about solving property disputes is complex and you should get legal advice.
What is a caveat?
A caveat is a document that prevents any dealings with land (for example prevents the land from being sold). A caveat must be lodged with Titles Registration in the Department of Natural Resources and Water. If you wish to lodge a caveat you should get legal advice as you may be held responsible for payment of costs to another person if the caveat is lodged when there is no legal right to do so.
What can I do if there is a dispute about ownership of land or body corporate matters?
If you have a dispute about ownership of land, a dispute between you and other owners of land or a dispute about body corporate matters, a variety of legal options may be available to you. However, this area of law is complex and you should get legal advice.
Can the government resume my land?
Governments may resume land for government purposes provided that they give adequate compensation. A person who receives notice of intended resumption of land should get legal advice.