Useful Links

QLD Fire & Emergency Service - Smoke Alarms https://www.qfes.qld.gov.au/prepare/fire/smoke-alarms

Understand what legislations are in place for the smoke alarms in your property.

Foreign Investment Review Board:

firb.gov.au

For all the latest news regarding the Australian Government FIRB check out link to stay up to date.

ATO- Clearance Certificate

https://www.ato.gov.au/forms/capital-gains-withholding-clearance-certificate-application-paper-form-instructions---for-australian-residents/

Australian resident vendors should use the Foreign resident capital gains withholding clearance certificate application form.

Body Corporate & Community Management:

www.qld.gov.au/law/housing-and-neighbours/body-corporate

Got Body Corporate attached to your contract? Check out the QLD Government site so you understand all the ins and outs of Body Corporate.

Land Tax Information:

www.qld.gov.au/environment/land/tax

Want to understand what Land Tax is? Click the link to find what Land Tax is and the essentials or exemptions involved from the QLD Government.

PEXA (Property Exchange Australia) Limited:

www.pexa.com.au/lawyers-conveyancers

Have a settlement by PEXA but not sure what it is? PEXA helps you save time and provide a greater certainty of settlement to ensure you obtain excellent service.

LadyBird Blog

Stay up to date on all of the LadyBird know how by having a look through our blog. Get to know all the ins and outs of conveyancing.

Update: Compliant smoke alarms - 2022
Smoke Alarms - New clause 7.8:
7.8 Compliant Smoke Alarms
(1) The Seller must install smoke alarms in any domestic dwelling on the Land in accordance with the Smoke Alarm Requirement Provision by the Settlement Date.
(2) If the Seller fails to comply with clause 7.8(1), the Buyer is entitled to an adjustment at settlement equal to 0.15% of the Purchase Price but only if claimed by the Buyer in writing on or before settlement. This is the Buyer’s only remedy for non-compliance with clause 7.8(1).

Rational:
From 1 January 2022, dwellings or residential units offered for sale must have smoke alarms installed in accordance with the Fire and Emergency Services Act 1990 and Building Fire Safety Regulation 2008.
New clause 7.8 imposes a contractual obligation on the seller to install smoke alarms complying with these new requirements in any dwelling on the Land or a Lot prior to settlement.
If smoke alarms are not installed the buyer will be entitled to an adjustment on the price payable at settlement of 0.15% of the purchase price. The buyer will need to claim this adjustment prior to settlement. There is no right to terminate or claim damages for a breach of clause 7.8(1).
A right to access the property with notice to inspect the smoke alarms has been added to clause 8.2.

Impact on Conveyancing Practice:
A seller should be advised of this obligation as soon as possible and warned of the adjustment to the price if complying smoke alarms are not installed. A buyer should be advised to check compliance prior to settlement as the right to seek an adjustment must be claimed in writing prior to settlement. The buyer will be required to install compliant smoke alarms after settlement if the seller has not complied.
Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Update: Deposit by direct debit grace period

Deposit by direct debit - grace period - New cl2.2 (3)-(5):
(3) Subject to clause 2.2(4), if the Buyer,
(a) effects an electronic transaction to pay all or part of
the Deposit to the account of Deposit Holder on a day;
(b) provides written evidence to the Deposit Holder that
the electronic transaction has occurred; and
(c) does not take any action to defer the payment to the
Deposit Holder to a later day,
the payment is taken to be received by the Deposit Holder
on the day the Buyer effects the electronic transaction
even if, because of circumstances beyond the Buyer's
control, the payment to the Deposit Holder's account
happens on a later day.
(4) If the Deposit Holder has not received a payment referred
to in clause 2.2(3) by the due date for payment:
(a) the Seller may give the Buyer notice that the payment
has not been received by the Deposit Holder; and
(b) if the payment has not been paid into the account of
the Deposit Holder by 5pm on the date 2 Business
Days after the Seller's notice under clause 2.2.(4)(a) is
given to the Buyer then clause 2.2(3) will not apply
and the Buyer will be in default.
(5) The Seller may recover from the Buyer as a liquidated debt
any part of the Deposit which is not paid when required.

Rational:
Express provision is made in clause 2.2 for the payment of the deposit by direct debit. Clause 2.2(3) provides clarity in relation to when a deposit is paid by direct
debit.
A buyer who pays a deposit using direct debit is taken to have paid the deposit on the day the buyer effects an electronic transaction to pay the deposit. This will be the day the buyer instructs their financial institution to pay the funds from their account.
To take advantage of this deeming provision the buyer will be required to provide evidence of the payment to the Deposit Holder and must not take any action to delay the payment. The deeming provision applies no matter when the payment is received by the Deposit Holder. However, if the money is not received by the due date in the contract, the seller may give a notice to the buyer requiring payment within 2 business days. If the
payment is not received within the 2 business days stated in the notice, the buyer will be in breach.
The purpose of the clause is to address the impact of delays in the deposit of money to accounts when using
direct debit. The clause seeks to reach a balance
between allowing time for the money to be credited after payment by the buyer and allowing a seller to take action if the payment is not received. The 2 business
days’ notice is to allow the buyer time to remedy the late payment.

Impact on Conveyancing Practice:
A buyer should be advised to provide a copy of the receipt for payment of the deposit by direct debit to the Deposit Holder as soon as possible.
A seller should request confirmation of receipt of the deposit from the Deposit Holder on the due date.
If payment has not been received the seller should confirm if the payment was made by electronic means on or before the due date to the account of the Deposit Holder:
1. If evidence of electronic payment on or before the due date is provided, the seller must issue a notice under clause 2.2(4) requiring payment within 2 Business Days before terminating. If it is not paid to the Deposit Holder by this date, the buyer will be in default and the seller will be entitled to exercise their right to terminate; or
2. If evidence of payment by electronic means is not provided, clause 2.2(3) will not apply. This means the buyer is in default because the deposit is not in the account of the Deposit Holder (ie paid) on the due date. The seller may exercise their rights under clause 9.1 without a notice under cl 2.2(4) provided the late payment has not been waived.
3. If the evidence provided confirms payment was made after the due date, clause 2.2(3) will deem the payment to be made on that date. As it is after the due date, the buyer will be in default under clause 2.2(2). No notice under clause 2.2(4) is required prior to terminating for default

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Update: Extension of settlement date

Right to extend settlement - new clause 6.2:
6.2 Extension of Settlement Date
(1) Either party may, at any time up to 4pm on the Settlement Date, extend the Settlement Date by giving a notice under this clause nominating a new date for settlement which must be no later than 5 Business Days after the Scheduled Settlement Date

(2) The Settlement Date will be the date specified in the Extension Notice and time is of the essence in respect of this date.

(3) More than one Extension Notice may be given under clause 6.2(1) but the new date for settlement nominated in an Extension Notice may not be a date later than 5 Business Days after the Scheduled Settlement Date.

(4) In this clause 6.2, "Scheduled Settlement Date" means the Settlement Date specified in the Reference Schedule as extended:

(a) by agreement of the parties; or
(b) under clause 6.3 or 11.4,

but excludes any extension of the Settlement Date as a result of the operation of this clause 6.

Rational:
New clause 6.2 allows either party to give a notice extending the date for settlement up to 5 business days after the Scheduled Settlement Date.
QLS and REIQ have updated these provisions relating to time of the essence, to alleviate the difficulties and potentially unfair result for a buyer who is unable to settle on the settlement day as a result of delays by financiers. The new clause 6.2 will allow a buyer to extend settlement for up to 5 business days to enable the financier time to be ready for settlement.
New clause 6.2 can only be used to extend the settlement date and will not apply to extend other dates in the contract, for example, under contingent conditions such as finance or building and pest inspections. However, if there is a condition which requires performance ‘at settlement’, the time for performance will become the new settlement date set under the Extension Notice.
Impact on Conveyancing Practice:
This is a significant change to conveyancing practice. Either party will be able to extend the settlement date at any time up to 4pm on the settlement date.
To use this unilateral extension right a party must:
a. give a notice in writing prior to 4pm on the scheduled settlement date (The notice should be given in accordance with clause 10.4);
b. nominate a new settlement date in the notice;
c. the settlement date in the notice must be no more than 5 business days after the scheduled settlement date;
d. time will be of the essence of the nominated settlement date.

The unilateral right to an extension cannot be exercised after the scheduled settlement date.
The nominated settlement date will be the settlement date for all purposes under the contract.
More than one Extension Notice may be given but the settlement date nominated in the notice cannot be later than 5 business days after the Scheduled Settlement Date.
The definition of Scheduled Settlement Date does not include a settlement date set by an Extension Notice under cl 6.2 but does include:
a. a new settlement date agreed by the parties; or
b. a settlement date under clause 6.3 or clause 11.4.
For example, if a seller is prevented from attending settlement due to a delay event under clause 6.3, the date for settlement may be reset under clause 6.3(6). This will become the Scheduled Settlement Date. If on the date set under clause 6.3 the buyer’s financier is not ready for settlement, the buyer may give an Extension Notice nominating a new settlement date of up to 5 business days after the settlement date set under clause 6.3.
The unilateral right to an extension cannot be exercised after the scheduled settlement date and does not preclude the parties from agreeing to a longer extension.
In the case of an electronic settlement an extension notice can be given at any time up to 4pm. In most cases the workspace will not lock as the required information or signing for settlement has not been completed. After an Extension Notice the settlement can be rescheduled.
If the workspace does lock, but due to an error, rather than an inoperative computer system under clause 11.4, it does not settle by 4pm, an extension notice can be given, but must be given prior to 4pm. An extension notice may be given after locking but will not be effective unless the workspace unlocks. If settlement fails due to the unavailability of a computer system listed in clause 11.4, settlement will roll over to the next business day under that clause.

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Update: Services unrelated to land

Clause 7.5 - Services unrelated to the land:

(2) If:

(a) there is an error in the boundaries or area of the Land;

(b) there is an encroachment by structures onto or from the Land

(c) there are Services that pass through the Land which do not service the Land and are not protected by any Encumbrance disclosed to the Buyer in this contract; or

(d) there is a mistake or omission in describing the Property or the Seller’s title to it;
which is material, the Buyer may terminate this Contract by notice to the Seller given before settlement.
(3) If a matter referred to in clause 7.5(2) is:

(a) immaterial; or

(b) material, but the Buyer elects to complete this contract;

the Buyer’s only remedy against the Seller is for compensation, but only if claimed by the Buyer in writing on or before settlement.
(4) The Buyer may not delay settlement or withhold any part of the Balance Purchase Price because of any compensation claim under clause 7.5(3)

Rational:
A new right to terminate is added to clause 7.5. Under clause 7.5 a buyer may terminate if infrastructure unrelated to delivery of services (gas, electricity, water, sewerage) to the Land pass through the Land and are not protected by a registered easement, BMS or statutory authority that has been disclosed to the buyer.
A new definition of ‘Services’ for the purpose of this clause is included in clause 1.
The same clause was also added to the Residential CTS contract, but any services infrastructure protected by a statutory easement under part 6A of the Land Title Act 1994 is exempted from the operation of the clause.

Impact on Conveyancing Practice:
A seller will need to disclose the existence of infrastructure located on or under the land that does not provide a service to the land. A search of all services infrastructure prior to contract will be required to ensure the seller complies with this obligation. A search of Dial before You Dig should provide the location of services infrastructure on or over the land.
If there is infrastructure on the land and it is protected by a registered easement, BMS or statutory authority these encumbrances must be noted under Title Encumbrances in the Reference Schedule. In the case of a lot in a CTS scheme, statutory easements under the Land Title Act 1994 do not need to be listed under Encumbrances.
If there is no disclosure of Title Encumbrances related to services or disclosure of the existence of unprotected services infrastructure prior to contract, a buyer may terminate if the impact of the service infrastructure is material: clause 7.5(2). The test in Flight v Booth will apply. If not material, compensation is available if notice is given by the buyer prior to settlement.

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Update: Contract date - definition

Contract Date - definition clause 1.1(j):
“Contract Date” or “Date of Contract” means:
(i) the date inserted in the Reference Schedule as the Contract Date; or
(ii) if no date is inserted, the date on which the last party signs this contract;

Rational:
New definition of Contract Date – the definition of Contract Date in clause 1 is amended to accommodate signing of electronic contracts in Realworks using DocuSign.
If signed using Realworks the date is not automatically added to the Reference Schedule. If no date appears in the Reference Schedule the Contract Date will be the date the last party signed the contract.

Impact on Conveyancing Practice:
Practitioner should ascertain this date and note it on the file if the date is not inserted.

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Have you ticked Smoke Alarms are compliant?

As of January 1, 2022, all homes or units being sold will require hardwired photoelectric, interconnected smoke alarms.

In accordance with the REIQ Update on January 20, 2022, the new clause 7.8 imposes a contractional obligation on the seller to install smoke alarms complying with these requirements in any dwelling on the Land or a Lot prior to settlement.
If smoke alarms are not installed the buyer will be entitled to an adjustment on the price payable at settlement of 0.15% of the purchase price. The buyer will need to claim this adjustment prior to settlement. There is no right to terminate or claim damages for a breach of REIQ clause 7.8(1).

The requirements to smoke alarms include:
- Smoke alarms to be photoelectric (AS3786-2014)
- Not to contain an ionisation sensor
- To be hardwired to the main power supply. Otherwise, to be powered by a non-removable 10 yr. battery or a combination
- Be interconnected with all other smoke alarms within the dwelling
- Positioned in legislation required locations:
o On each storey
o In each bedroom
o If there’s no hallway, between the bedrooms and other parts of the storey
o If there are no bedrooms on a storey, at least ONE in the most likely path travelled to the exit

The seller must be advised as soon as possible and warned of the price adjustments if compliant smoke alarms are not installed. A buyer should be advised to check compliance prior to settlement and seek adjustment claims in writing prior to settlement. The buyer will be required to install compliant smoke alarms after settlement if the seller has not complied.

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Confirming Contract Dates:

When completing an REIQ 17th Edition Contract for House and Land or 13th Edition Contract for Lots in a Community Titles that is electronically signed, there is no need to date the contract. The Contract Date is defined as the date on which the last party signs the contract.

When inserting the Contract Date, it must be the date that the contract was signed even if it was signed outside business hours - do not date the contract with the following day’s date.

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Smoke Alarm Compliance Certificate:

Version 17 smoke alarm rules are that the seller is not required to provide a Smoke alarm compliance certificate (unless of course there is a special condition).

The seller do not need to provide any evidence that the property is compliant, this is up to the buyer to have their smoke alarm inspection.

Disclaimer: This article is provided for general information & education purposes only, and is not a substitute for legal advice.

Are you asking to waive condition 6.2?
As a result of the recent contract updates, you may see Seller’s Solicitors granting condition extensions to the Buyer on the basis that they waive their rights to condition 6.2 (5 business day settlement extension).
This isn't intended to be difficult or to jeopardise the contract, it is a solicitor requirement to act in their client's best interests.
Clause 6.2 allows for either party to extend the settlement date by up to 5 business days without needing approval and not providing for any default penalty interest. therfore, in extending a condition it is in the Seller's best interest that the Buyer not have the benefit of this clause.

Pool Safety Certificate.

REIQ - clause 1.1 (w) and 5.3(1)(e) (Note clause 4.2 is deleted)
A seller is required to hand over a Pool Compliance Certificate for a non-shared pool on the land at settlement. The only exception to this obligation is if a Notice of No Pool Safety Certificate is given to the buyer prior to contract.

Body Corporate Disclosure is a Statutory Right
As Body Corporate disclosure is a statutory right, it cannot be contracted out and therefore despite any special conditions, if a Buyer wished they could contravene the special condition and terminate for non-disclosure at any time.
Unlike Cooling Off, there is no statutory provision allowing for the 'wavier' of this right.

Is LadyBird Conveyancing
a Law firm?

In Queensland, all paid conveyancing matters
must be completed by a Law Firm. LadyBird Law
is a law firm with a property division known as
LadyBird Conveyancing.

A few of the benefits of referring to a law firm that specialises in conveyancing like LadyBird Conveyancing are:

Response within a timely manner to each individual enquiry or request
A dedicated team that can offer experience and advice on all types of circumstances due to our vast exposure to conveyancing matters
An experienced team who combine a modern approach with legal advice delivered in plain English
Providing competitive fixed-fee pricing with exceptional service and support.

Rest assured Law Firms that specialise in conveyancing are the right solution for all clients wanting exceptional support and service for residential purchases and sales.

For more information click the link to check out this video: https://youtube.com/shorts/iZsF-tOcpto

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