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Property Law Act 1974 – 27 September 2016

Property Law Regulation 2003 – 1 July 2016

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Land contracts are generally to be in writing (or by deed) signed by the seller/creator of the interest to be valid. Note: There is an exception for leases for a term not exceeding 3 years (with or without an option to extend the term for a term not exceeding 3 years).

  • Sections 10, 11, 12, 59

Land contracts will be set aside where the persons gaining the interest are precluded from validly carrying out the transaction (due to a fiduciary relationship or otherwise).

  • Section 14

Land contracts may be entered into with foreigners (aka ‘aliens’).

  • Section 15A

A person who holds a life estate is liable in damages to the remainder/ revisionary owner of the land if voluntary waste is committed.

  • Sections 24, 25

Property (and any interest in property) may be held by 2 or more persons as joint tenants or tenants in common.

  • Sections 33, 34

A co-owner of property (not defined to include personal chattels) may generally apply to the court for a statutory trust and sale/ partition of interests.

  • Sections 37, 37A, 37B, 38, 42

Where any chattel or chattels belong to 2 or more persons jointly or in undivided shares any such person or persons may apply to the court for the sale/ division of chattels.

  • Sections 41, 42

An individual may generally execute a deed by either signing or placing the individual’s mark on the deed. Note: 1 witness is required to sign and attest (who is not a party to the instrument).

  • Section 45

In favour of a purchaser a deed shall generally be deemed to be duly executed by a corporation if its seal is affixed in the presence of and attested by its clerk, secretary or other permanent officer or his or her deputy, and a member of the board of directors, council or other governing body of the corporation.

  • Section 46

Special rules apply in relation to execution of a conveyance of property/ deed by a person who is power of attorney of a corporation.

  • Section 3, 46, Schedule 6

In all deeds, contracts, wills, orders and other instruments executed, the word ‘month’ means calendar month and the word ‘person’ includes an individual and a corporation (unless indicated otherwise by the context).

  • Section 48

A covenant, power or other provision implied under this Act may be negatived, varied or extended by an express declaration in the instrument or another instrument.

  • Section 49

A covenant relating to land is binding on current and future owners (and persons deriving title in land through the owner), subject to a contrary intention.

  • Section 53

Contracts may be entered into for the benefit of third parties. Upon creation, a third party is given the right to seek remedies and relief.

  • Section 55

Guarantees of liability cannot be enforced unless they are in writing.

  • Section 56

Where a certificate, consent or approval is a statutory requirement for a contract or dealing with property, the requirement may generally be met if the certificate, consent or approval is tendered at settlement (in the case of a sale) or on the lessee’s entry into possession (in the case of a lease).

  • Sections 3, 57A, Schedule 6

The seller of land (or someone on the seller’s behalf) may not bid at an auction unless the conditions of sale notify such activity.

  • Section 60

The seller of land may discharge an encumbrance at settlement using purchase moneys.

  • Sections 3, 61, Schedule 6

If not otherwise provided by a land sale contract, settlement must take place at the office of the land registry.

  • Section 61

For a land sale contract, purchase money payment dates falling on a weekend or public holiday will generally be shifted to the next weekend (that is not a public holiday).

  • Section 61

Insurance money payable to the previous owner of property shall generally be paid to a person entitled to an encumbrance and the balance to the new owner.

  • Sections 3, 63, Schedule 6

A contract for the sale of a dwelling house may be rescinded by a purchaser where the dwelling house is destroyed or damaged so as to be unfit for occupation.

  • Section 64

A vendor who fails to perform a contract to sell land shall be liable by way of damages as compensation for the loss sustained by the purchaser.

  • Sections 3, 68, 70, Schedule 6

A contract for the sale of a proposed lot may provide for a sum not exceeding 20% of the purchase price of the proposed lot paid under the contract as a deposit (whether paid in 1 or more amounts) to be forfeited and retained by the vendor in the event of a breach of contract by the purchaser (resulting in termination).

  • Section 68A

A defect or doubt in the vendor’s title that does not enable the purchaser to rescind a contract for the sale of land may still allow the purchaser to recover the deposit/ instalments and to be relieved from all liability under the contract.

  • Sections 3, 69, 70, Schedule 6

Where a contract for the sale of land has a deposit greater than the ‘prescribed percentage’ of the purchase price or the contract stipulates payment of the purchase price by instalments, the vendor generally has to follow a notice process to enforce their rights where the purchaser is in breach. It is also worthy to note that for these contracts the purchaser has a right to lodge a caveat forbidding the registration of any instrument until completion of the contract and that there is a right to demand conveyance (with mortgage) after one-third of the purchase price has been  paid. For the definition of ‘prescribed percentage’, refer to section 71 of the Act.

  • Sections 71, 71A, 72, 74, 75, 76

A mortgagor of land is to keep all buildings and other improvements in good and substantial repair.

  • Sections 77, 77A, 78

A mortgagor of land has the right to inspect/ take copies of mortgage documents in the possession, custody or power of the mortgagee.

  • Sections 77, 77A, 80

A mortgagee shall not exercise a power of sale until a notice of default has been served and default has continued for 30 days.

  • Sections 77, 77A, 84, 85, 87, 88, 89, 96; Regulation 3

Land sold by a mortgagee exercising a power of sale may be transferred subject to any prior registered encumbrance.

  • Sections 3, 77, 77A, 86, 87, 88, Schedule 6

A lessee who commits voluntary waste is liable in damages to the reversioner.

  • Section 104

The obligation to pay rent and to keep the premises in good and tenantable repair are generally implied into leases of land. Note: The repair condition is not implied into residential tenancies of 3 years or less. For these leases, there is an obligation on the lessor to maintain the premises in a condition reasonably fit for occupation and an obligation on the lessee to care for the premises in the manner of reasonable tenant and to repair damage caused by the lessee or by persons coming onto the premises with the lessee’s permission.

  • Sections 105, 106

Certain powers of a lessor are implied into every lease of land, including to enter and view (with 2 days previous notice in writing), to enter and repair and, on breach of the lease for a set period of time (and in some instances after compliance with notice requirements), to re-enter and take possession.

  • Sections 107, 112, 124

Damages for the breach of lease repair conditions are limited to the value the premises are diminished owing to the breach.

  • Section 112

Consent to assign or charge a lease or to make improvements must not be unreasonably withheld.

  • Sections 121, 122

A right of re-entry or forfeiture by a lessor shall generally not be enforceable until the lessor serves on the lessee a notice in the approved form specifying the breach complained of and how the breach can be remedied (and a reasonable time has passed without compliance). Note: The notice requirement does not apply to leases of 1 year or less, or any lease of a house let as a dwelling house.

  • Sections 112, 123, 123A, 124, 126, 127

A lessor must serve a prescribed notice and follow the requirements of section 128 if they are seeking to preclude the exercise of a lease option by the lessee.

  • Section 128

A tenancy without agreement as to its duration may be terminated by 1 month’s notice in writing.

  • Section 129

A periodic tenancy (and other tenancies) may be terminated by notice complying with the requirements of this Act.

  • Sections 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 141

A person must not do anything on or below land that will withdraw support from any other land or from any building or structure that has been placed on or below it.

  • Section 179

A person may apply to the court for an easement/ licence over another’s land where it is reasonably necessary. Note: An order shall not be made unless the owner of the burdened land can be adequately compensated.

  • Section 179

A person may apply to the court for an easement/ restriction under covenant to be modified or removed. Note: The court may direct compensation be paid.

  • Section 180

An owner of land may apply to the court for relief in relation to encroachment of a building/ wall.

  • Sections 182, 183, 184, 185, 186, 187, 188, 189, 190

An owner of land may apply to the court for a determination of the true boundary.

  • Sections 182, 183, 191

A debt/ legal thing in action can be assigned if express notice in writing of assignment has been given to the person affected.

  • Section 199

An option to acquire an interest in land is generally void if exercisable more than 21 years from the date of its grant.

  • Section 218

Rent (and other periodical payments) shall be considered to accrue from day to day and shall be apportionable in respect of time accordingly. Note: apportionment does not affect the timing of payment according to subsection 232(2).

  • Sections 3, 231, 232, 233, Schedule 6

A seller is to give notice of instruments, facts and things to the purchaser if it is to prejudicially effect the purchaser. Note: Notice is not required if the instruments, facts and things could be discovered by searches/ inspections.

  • Sections 3, 346, Schedule 6
Reason for law

N/A

Relevant links

Forms [Queensland Courts]

Highlighted practice direction

1999/33 – Property Law Act s 289

2004/05 – Applications for adjustments of property interests

Property (de facto relationships)

Critique

The terms ‘livery’, ‘seisin’ and ‘feoffment’ in sections 8 and 236 are not terms commonly understood by members of the public.

The phrase ‘free and common socage’ in section 20 is not a phrase commonly understood by members of the public.

The term ‘escheat’ in section 20 and Schedule 1 is not a term commonly understood by members of the public.

The phrase ‘bona vacantia’ in section 20 and Schedule 1 is not a phrase commonly understood by members of the public.

If life estates are no longer common, the law relating to life estates may be considered for repeal.

In relation to section 28, the ‘rule in Shelley’s case’ might not be familiar to members of the public.

The term ‘coparceners’ in section 33 is not a term commonly understood by members of the public.

The term ‘moiety’ in section 38 is not a term commonly understood by members of the public.

The phrase ‘bona fide’ in sections 73, 246 and 247 is not a phrase commonly understood by members of the public.

In relation to sections 85 and 87, the word ‘damnified’ could be replaced with a softer word.

The phrase ‘interesse termini’ in section 102 is not a phrase commonly understood by members of the public.

The term ‘cesser’ in section 116 is not a term commonly understood by members of the public.

The phrase ‘de son tort’ in section 132 is not a phrase commonly understood by members of the public.

The phrase ‘mesne profits’ in sections 147 and 149 is not a phrase commonly understood by members of the public.

The phrase ‘ex parte’ in section 147 is not a phrase commonly understood by members of the public.

The phrase ‘hotchpot provision’ in section 204 is not a phrase commonly understood by members of the public.

In relation to section 204, it is not clear why a purchaser in good faith is to be not less than 25 years of age.

In relation to section 212, the timing of parenthood may now be inaccurate given new medical advancements.

The phrase ‘rent seck’ in section 231 is not a phrase commonly understood by members of the public.

Part 18 ‘Unregistered land’ may be redundant if all Queensland land is now registered.

The term ‘fiat’ in Schedule 1 is not a term commonly understood by members of the public.

Suggested further reading

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