Property Law Act 2023 (Qld)

Property Law Act 2023

An Act to consolidate and provide for the law relating to property

Part 1    Preliminary

Division 1 Introduction

1   Short title

This Act may be cited as the Property Law Act 2023.

2   Commencement

This Act commences on a day to be fixed by proclamation.

Division 2 Application of Act

3   Act binds all persons

(1)This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)Nothing in this Act makes the State, the Commonwealth or another State liable to be prosecuted for an offence against this Act.

4   Act applies to land, property and documents

This Act applies to—

(a)land in Queensland; and

(b)property, other than land, whether in or outside Queensland, to the extent the general law of Queensland applies to the property; and

(c)documents, whether executed in or outside Queensland, to the extent the general law of Queensland applies to the documents.

5   Relationship with other Acts

(1)This Act applies subject to the following Acts—

(a)the Land Act 1994;

(b)the Land Title Act 1994;

(c)the Mineral and Energy Resources (Common Provisions) Act 2014;

(d)each Resource Act.

(2)If this Act is inconsistent with an Act mentioned in subsection (1), unless this Act or the Act mentioned in subsection (1) expressly provides otherwise, the Act mentioned in subsection (1) prevails to the extent of the inconsistency.

Division 3 Interpretation

6   Dictionary

The dictionary in schedule 2 defines particular words used in this Act.

Note—

The Acts Interpretation Act 1954, schedule 1 defines particular words used in this Act, including, for example—

•property

•land

•interest

•estate

•mortgage

•lease

•transfer

•transmission

•document

•proceeding

•corporation

Part 2    General rules affecting property

Division 1 Requirement for writing

7   Contracts for disposition of land not enforceable unless in writing

A contract for the disposition of land is not enforceable by action in a proceeding unless—

(a)the contract is in writing or some memorandum or note of the contract is recorded in writing; and

(b)the contract or the memorandum or note of the contract is signed by the party against whom the contract is sought to be enforced.

8   Writing required for creation of particular interests in land

(1)The creation of a legal or equitable interest in land must be in writing and signed by the person creating the interest.

(2)A trust relating to land must be created or declared in writing and signed by the person creating or declaring the trust.

9   Nature of interest in land created by parol

(1)An interest in land created by parol, and not put in writing and signed by the person creating the interest, has the effect of an interest at will only.

(2)Subsection (1) applies despite any consideration given for the interest.

10   Particular matters not affected

(1)This division does not affect—

(a)the creation of a short lease; or

(b)the application of the law relating to part performance; or

(c)the creation or operation of a resulting, implied or constructive trust; or

(d)the making or operation of a will; or

(e)the disposition of land by operation of law; or

(f)the disposition of land by order of any court.

(2)To remove any doubt, it is declared that a short lease created by parol takes effect when the lessee has an immediate entitlement to possession.

Division 2 Other rules

11   Transfer or lease to self and others

A person may transfer or lease property to the person’s self, or to the person’s self and others.

12   Merger of estate

An estate does not merge by operation of law with another estate unless the person acquiring both estates intends the estates to merge.

Part 3    Freehold estates

13   Freehold estates capable of creation

The following estates of freehold are capable of being created and subsisting in land—

(a)an estate in fee simple;

(b)a life estate.

14   Abolition of obsolete estates and rules

(1)The following estates can not be created—

(a)an estate tail;

(b)a quasi-entail.

(2)In a document, words that, apart from this section, would have created an estate tail are taken to create an estate in fee simple.

(3)The rule known as the rule in Shelley’s Case is abolished.

15   Abolition of incidents of tenure for benefit of State

A tenure created by the State on granting an estate in fee simple is in free and common socage without any incident of tenure for the benefit of the State.

16   Abolition of quit rent

If quit rent issues to the State out of land, or the residue of quit rent issues to the State out of land in relation to which quit rent has been apportioned or redeemed, the land is released from quit rent.

17   Abolition of escheat for dissolved corporation

If a corporation is dissolved or otherwise ceases to exist, subject to the Corporations Act, the State is entitled to take as bona vacantia any of the corporation’s property that would have been liable to escheat if escheat had not been abolished.

18   Waiver by State of any remaining rights to property by escheat

(1)This section applies if a person believes the State may have a right to property by escheat, devolution or bona vacantia on the death intestate of a person.

(2)The person may apply to the Minister to waive the State’s rights.

(3)The Minister may waive the State’s rights on terms the Minister considers appropriate.

(4)The Minister must publish in the gazette the details of a waiver under this section.

(5)The Minister may delegate the Minister’s functions or powers under this section to an appropriately qualified public service employee.

(6)In this section—

right includes a supposed right.

19   Voluntary waste or equitable waste by life tenant

(1)A life tenant who commits voluntary or equitable waste in relation to land, other than under subsection (3) or (4), is liable in damages to the person entitled, immediately after the life estate ends, to the fee simple interest in remainder in the land (the remainder person).

(2)If the interest of the life tenant is an equitable interest, the trustee for the remainder person may bring a proceeding for the damages on behalf of the remainder person.

(3)A life tenant may commit voluntary waste in relation to land if an express or implied term in the document creating the life estate permits the waste.

(4)A life tenant may commit equitable waste in relation to land if an express term in the document creating the life estate permits the waste.

20   Recovery of property when life estate ends

(1)This section applies if—

(a)a life estate ends; and

(b)a person (the remainder person) is entitled, immediately after the life estate ends, to an interest in the property; and

(c)a person, other than the remainder person (the third person), continues in possession of, or receives rent or profits in relation to, the remainder person’s interest in the property.

(2)The remainder person may apply to the court for any or all of the following in relation to the interest in the property—

(a)possession;

(b)damages;

(c)an account of rent or profits.

(3)If the life tenant or third person has been absent for at least 7 years, the court may presume the life tenant or third person has died.

(4)The presumption mentioned in subsection (3) is rebuttable.

(5)The court may hear and decide the application and make the orders it considers appropriate.

(6)If, after the court has decided the application, a life tenant or third person presumed dead by the court is proved to be alive—

(a)a person with an interest in the property may apply to the court for any or all of the following in relation to the property—

(i)possession;

(ii)damages;

(iii)an account of rent or profits; and

(b)the court may hear and decide the application and make the orders it considers appropriate.

21   Penalty for holding over possession after life estate ends

(1)This section applies if—

(a)a life estate ends; and

(b)a person (the remainder person) is entitled, immediately after the life estate ends, to an interest in remainder in the land; and

(c)another person (the third person) holds over possession of the remainder person’s interest in remainder in the land; and

(d)the remainder person gives the third person a notice asking for possession of the remainder person’s interest in remainder in the land; and

(e)the third person does not give the remainder person possession of the remainder person’s interest in remainder in the land within 30 days after the notice mentioned in paragraph (d) has been given.

(2)The third person is liable to the remainder person for the market rent for the remainder person’s interest in remainder in the land for the period—

(a)starting on the day the life estate ends; and

(b)ending on the day the remainder person is given possession of the land.

(3)The remainder person may recover the market rent for the remainder person’s interest in remainder in the land as a debt due to the remainder person.

Part 4    Future interests

22   Creation of future interests in land

(1)If a future interest in land is created, it takes effect as an equitable and not a legal interest.

(2)Despite the Land Title Act 1994, an interest in remainder must not be registered in the freehold land register.

(3)In this section—

future interest means—

(a)a legal contingent remainder; or

(b)a legal executory interest.

23   Creation and disposition of interests in property

(1)Each interest in property that can be created or disposed of may be created or disposed of by an individual—

(a)during the individual’s lifetime; or

(b)by will.

(2)However, subsection (1) does not make a joint tenancy severable by will.

24   When gift over stops being capable of taking effect

(1)This section applies if—

(a)a person (the first person) is entitled to an interest in property; and

(b)the interest in property is subject to a gift over to another person if the first person has no child, or no child of a stated class, whether at any stated time or within any stated period.

(2)The gift over stops being capable of taking effect when the first person has a child, or a child of the stated class, who attains 18 years.

(3)Subsection (2) applies even if the child dies after attaining 18 years.

(4)For this section, a gift over includes a gift over expressed to take effect on the ending of an interest preceding that of the person whose interest is the subject of the gift over.

(5)In this section—

child, of a person, has the meaning given by the Succession Act 1981, section 5A.

Part 5    Co-ownership of property

Division 1 General rules

25   Forms of co-ownership

Property may be held by 2 or more persons—

(a)as joint tenants; or

(b)as tenants in common.

26   Corporation may hold property as joint tenant

(1)A corporation may acquire and hold property in joint tenancy in the same way as if it were an individual.

(2)If a corporation and an individual, or 2 or more corporations, become entitled to property under circumstances or because of a document that would, if the corporation or corporations had been individuals, have created a joint tenancy, the corporation and the individual, or the 2 or more corporations, are entitled to the property as joint tenants.

(3)However, the acquisition and holding of property by a corporation in joint tenancy is subject to the same conditions and restrictions as attach to the acquisition and holding of property by a corporation in severalty.

(4)If a corporation is a joint tenant of property and the corporation is dissolved or otherwise ceases to exist, the property devolves on the other joint tenant.

27   Liability of co-owners to account

If a co-owner of property receives more than the co-owner’s just or proportionate share according to the co-owner’s interest in the property, the co-owner is liable to account to each other co-owner of the property.

28   Construction of disposition of property to 2 or more persons

(1)A disposition of an equitable interest in property, whether with or without a legal interest in the property, to 2 or more persons together beneficially takes effect as a disposition to the persons as tenants in common, and not as joint tenants.

(2)Subsection (1) does not apply to—

(a)a disposition to 2 or more persons that provides the persons are to take as joint tenants; or

(b)a disposition to 2 or more persons as administrators, executors, mortgagees or trustees; or

(c)a disposition to 2 or more persons carrying on business in partnership for partnership purposes.

(3)Subject to the Partnership Act 1891 or any agreement to the contrary, a disposition of property to 2 or more persons carrying on business in partnership for partnership purposes takes effect as—

(a)a disposition of the legal interest, if any, in the property to the persons as joint tenants; and

(b)a disposition of the equitable interest, if any, in the property to the persons as tenants in common.

(4)In this section—

disposition includes a disposition that is wholly or partly oral.

29   Tenants in common of equitable interest who become entitled to legal interest

(1)This section applies if 2 or more persons holding property—

(a)are entitled beneficially as tenants in common to an equitable interest in the property; and

(b)are or become entitled in their own right, whether as joint tenants or tenants in common, to a legal interest in the property equal to and coextensive with their equitable interest in the property.

(2)Subject to any agreement to the contrary, both the legal and equitable interests in the property are held by the persons as tenants in common.

Division 2 Sale and division of co-owned property

Subdivision 1 Preliminary

30   Definitions for division

In this division—

property does not include a future or contingent legal or equitable interest in real or personal property.

security interest—

(a)means an interest in property by way of security for the payment of a debt or other pecuniary obligation; and

(b)in relation to land—includes a mortgage and a lien, whether or not registered under the Land Title Act 1994.

31   Other forms of severance not affected

Nothing in this division affects or prevents the severing of a joint tenancy under—

(a)a provision of this Act other than this division; or

(b)another Act or law.

32   Security interests not affected

Despite anything to the contrary appearing in a document creating or related to a security interest, the severing of a joint tenancy under this division—

(a)does not constitute a breach of the terms of the document; and

(b)does not affect any existing powers, rights or interests of a person who holds a security interest over the property to which the severance relates.

Subdivision 2 Sale and division

33   Application to court for sale or division of co-owned property

(1) A co-owner of property may apply to the court for an order under this subdivision to be made in relation to the property.

(2)The application may request—

(a)the sale of the property and the division of the proceeds among the co-owners; or

(b)the physical division of the property among the co-owners; or

(c)a combination of the actions mentioned in paragraphs (a) and (b).

(3)The applicant must, within 30 days after making the application, give a copy of the application to each person who holds a security interest over the property.

34   Orders court may make

(1)In the proceeding, the court may make any order that the nature of the case requires to ensure a just and fair sale or division of the property.

(2)Without limiting subsection (1), the court may make any of the following orders—

(a)an order for the sale of the property and the division of the proceeds among the co-owners;

(b)an order for the physical division of the property among the co-owners;

(c)an order for a combination of the actions mentioned in paragraphs (a) and (b).

35   Sale and division of proceeds to be preferred

(1)If the court decides to make an order for the sale or division of the property, the court must make an order under section 34(2)(a) unless the court considers an order under section 34(2)(b) or (c) would be more just and fair.

(2)In deciding whether an order under section 34(2)(b) or (c) would be more just and fair, the court must consider—

(a)the use being made of the property, including, for example, any use of the property for residential or business purposes; and

(b)whether the property is able to be divided and the practicality of dividing the property; and

(c)any particular links with or attachment to the property, including, for example, whether the property is unique or has a special value to 1 or more of the co-owners.

(3)Subsection (2) does not limit or otherwise affect the matters the court may consider.

36   Order varying entitlements to property

In making an order under section 34, the court may order that—

(a)the property be physically divided into parcels or shares that differ from the entitlements of each of the co-owners; and

(b)compensation be paid by a stated co-owner to another stated co-owner to compensate for any difference in the value of the parcels or shares when the property is physically divided under paragraph (a).

37   Order appointing trustee

(1)In the proceeding, if the court considers the appointment of a trustee for the sale or physical division of the property is necessary or desirable, the court may order—

(a)the appointment of a trustee; or

(b)the removal of a trustee.

(2)In an order appointing a trustee for the sale of the property, the court may make any order that the nature of the case requires, including, for example, any of the following orders—

(a)an order directing the trustee as to the terms and conditions on which the sale is to be carried out;

(b)an order directing the distribution of the proceeds of the sale in a way stated by the court;

(c)an order that the remuneration of the trustee be paid from the proceeds of the sale.

(3)In an order appointing a trustee for the physical division of the property, the court may make any order that the nature of the case requires, including, for example, any of the following orders—

(a)an order directing the trustee as to the way in which the division is to be carried out;

(b)an order that the remuneration of the trustee be paid by the parties to the proceeding.

(4)If the property is held by joint tenants, an order of the court appointing a trustee for the sale of the property does not of itself sever the joint tenancy.

(5)Subject to an order of the court, if the property is land held by co-owners, an order of the court appointing a trustee for the sale of the land converts the interest of each co-owner into an interest in the proceeds of the sale of the land.

(6)Subject to an order of the court, a trustee appointed by the court may pay the following amounts out of income generated by the property or the proceeds of the sale of the property—

(a)costs, expenses and other outgoings relating to the property;

(b)costs and expenses relating to the sale of the property.

38   Vesting of property in trustee

(1)If the court orders the appointment of a trustee for the sale or physical division of the property, the order is taken to vest the property in the trustee in the same way as a vesting order under the Trusts Act 1973, section 90.

(2)If the property is subject to a security interest affecting the entirety, the property vests in the trustee subject to the security interest.

(3)If the property is subject to a security interest affecting an undivided share of the property—

(a)the property vests in the trustee free of the security interest; and

(b)the interest of the person entitled to the benefit of the security interest is converted to an equitable interest in the proceeds of sale.

39   Other orders court may make

(1)In the proceeding, the court may also make any other order the court considers appropriate, including, for example, any of the following orders—

(a)an order that the property be sold by private sale or at auction;

(b)an order that the co-owners may purchase the property at the sale or auction mentioned in paragraph (a);

(c)for a private sale—an order that the sale be at market value as determined by an independent valuation;

(d)for an auction—an order that the reserve price be the reserve price set by the court;

(e)an order that an independent valuation of the property take place;

(f)an order that a sale be completed within a stated time;

(g)an order that the costs of the sale be paid—

(i)by 1 or more of the co-owners; or

(ii)from the proceeds of the sale;

(h)an order that the sale and division of the proceeds of sale or the physical division of the property be subject to stated terms and conditions;

(i)an order that any document be produced or other thing done that is necessary to enable an order to be carried out effectively.

(2)This section does not limit or otherwise affect section 34 or 37.

40   Orders for compensation and accounting

(1)In the proceeding, the court may order that—

(a)a co-owner pay compensation or make a reimbursement to another co-owner; or

(b)a co-owner account to another co-owner under section 27; or

(c)a co-owner’s interest in the property be adjusted to take account of amounts payable by the co-owners to each other during the co-ownership.

(2)In deciding whether to make an order under subsection (1), the court must consider the following matters—

(a)amounts reasonably spent by a co-owner in improving the property;

(b)costs reasonably incurred by a co-owner in the maintenance or insurance of the property;

(c)damage caused by the unreasonable use of the property by a co-owner;

(d)the payment by a co-owner of more than that co-owner’s proportionate share of rates, mortgage repayments, purchase money, instalments or other outgoings in relation to the property for which 1 or more of the other co-owners are liable;

(e)for land—whether or not a co-owner who has occupied the land should pay an amount equivalent to rent to a co-owner who did not occupy the land;

(f)for property other than land—whether or not a co-owner who has used the property should pay an amount equivalent to rent to a co-owner who did not use the property.

(3)The court must not make an order requiring a co-owner who has occupied land (the occupying co-owner) to pay an amount equivalent to rent to a co-owner who did not occupy the land (the non-occupying co-owner) unless—

(a)the occupying co-owner seeks compensation, reimbursement or an accounting for money expended by the occupying co-owner in relation to the land; or

(b)the non-occupying co-owner has been excluded from occupation of the land; or

(c)the non-occupying co-owner has suffered a detriment because it was not practicable for the non-occupying co-owner to occupy the land with the occupying co-owner.

(4)The court must not make an order requiring a co-owner who has used property other than land (the using co-owner) to pay an amount equivalent to rent to a co-owner who did not use the property (the non-using co-owner) unless—

(a)the using co-owner seeks compensation, reimbursement or an accounting for money expended by the using co-owner in relation to the property; or

(b)the non-using co-owner has been excluded from using the property; or

(c)the non-using co-owner has suffered a detriment because it was not practicable for the non-using co-owner to use the property with the using co-owner.

(5)This section applies despite any other Act or law.

Subdivision 3 Accounting of amounts received by co-owners

41   Application to court for accounting

(1)A co-owner of property may apply to the court for an order for an accounting under section 42.

(2)An application under subsection (1) may be made whether or not an application is made under subdivision 2.

42   Orders court may make

(1)In the proceeding, the court may make any order that the nature of the case requires to ensure a just and fair accounting of amounts received by the co-owners in relation to the property.

(2)Without limiting subsection (1), the court may make an order that a co-owner, who has received more than the share of rent or other payments from a third party in respect of the property to which that co-owner is entitled, account for that rent or those other payments to the other co-owners.

Subdivision 4 Miscellaneous matters

43   Adjournment or stay of co-ownership proceeding—family law proceeding

(1)The court may adjourn or stay a proceeding under subdivision 2 or 3 in relation to property at any time before it has made a final order if a co-owner starts, or has started, a family law proceeding in relation to the property.

(2)Also, the court may adjourn a proceeding under subdivision 2 or 3 in relation to property at any time before it has made a final order to allow a co-owner of the property to start a family law proceeding.

(3)This section does not limit or otherwise affect the power of the court to grant or refuse an adjournment or stay in relation to a proceeding.

(4)In this section—

family law proceeding means a proceeding under the Family Law Act 1975 (Cwlth).

Part 6    Deeds and covenants

Division 1 Deeds

Subdivision 1 Preliminary

44   Definitions for division

In this division—

copy, of an electronic document, means a reproduction of the document in either electronic or hard copy form.

counterpart, for a document, see section 45.

director, of a corporation, means—

(a)if the corporation is established under an Act of the Commonwealth or a State—a director under that Act; or

(b)if the corporation is established under a constitution or another governing document—a director under that constitution or governing document; or

(c)otherwise—a member of the board of directors, council or other governing body of the corporation.

document means a record of information however recorded and includes—

(a)a physical document; and

(b)an electronic document.

information includes information in the form of data, text or images.

seal, of a corporation, includes a common seal of the corporation.

secretary, of a corporation, means the clerk, secretary or other permanent officer of the corporation.

sign, a document, means—

(a)for a physical document—physically sign the document; or

(b)for an electronic document—electronically sign the document.

45   What is a counterpart for a document

(1)A counterpart, for a document, is a copy of the document that includes the entire content of the document.

(2)Despite subsection (1), a counterpart need not include—

(a)the signatures of all persons who have signed, or are to sign, the document; or

(b)if a seal is, or is to be, fixed to the document—the seal.

46   Division does not apply to enduring documents

This division does not apply to an enduring document under the Powers of Attorney Act 1998.

47   Application of division to powers of attorney

(1)Each of the following documents made by an individual must be a physical document that is signed by the individual in the presence of a witness—

(a)a general power of attorney made under the Powers of Attorney Act 1998;

(b)a power of attorney given under a deed.

(2)However, a document containing a power of attorney given by an individual under a deed may be an electronic document that is electronically signed by the individual if—

(a)the document is part of a commercial or other arms-length transaction; and

(b)the power of attorney is given for the purpose of the commercial or other arms-length transaction.

Example of a document that may be electronically signed—

a document containing a power of attorney given by an individual under a deed as security for a proprietary interest of another party to the document or the performance of an obligation owed by the individual

(3)To remove any doubt, it is declared that—

(a)subsection (2) applies to a document even if the document is executed at a different time from, and is separate to, other documents that form part of the transaction; and

(b)a power of attorney given by an individual under a deed under subsection (2) may be signed under subsection (2) whether or not in the presence of a witness.

(4)This section applies—

(a)subject to section 53; and

(b)despite another provision of this division.

(5)In this section—

individual includes an individual in the individual’s capacity as a sole trader.

48   Execution of documents under other Acts

This division does not limit or otherwise affect the way in which documents are validly executed under the Land Act 1994 or the Land Title Act 1994.

Subdivision 2 Form and execution

49   How deed is made generally

(1)A document takes effect as a deed if the document—

(a)is in writing; and

(b)contains a clear statement that the document is a deed; and

(c)is executed under this division; and

(d)is delivered in accordance with section 56.

(2)A document takes effect as a deed under subsection (1) even if—

(a)it is not written on paper or parchment; or

(b)it is not an indenture or stated to be an indenture; or

(c)it is not sealed or stated to be sealed.

50   Electronic document and electronic signing

A document that is to have effect as a deed may be in the form of an electronic document and may be electronically signed.

51   Execution by individual

(1)An individual may execute a document that is to have effect as a deed by signing the document.

(2)An individual may sign a document under subsection (1) whether or not in the presence of a witness.

52   Execution by corporation

(1)A corporation may execute a document that is to have effect as a deed, without using a seal, if the document is signed by—

(a)2 directors of the corporation; or

(b)1 director and 1 secretary of the corporation; or

(c)for a proprietary company that has a sole director—that director, if—

(i)the director is also the sole company secretary; or

(ii)the company does not have a company secretary; or

(d)a lawfully authorised agent or attorney of the corporation, whether or not the agent or attorney is appointed under seal or under a deed.

(2)A corporation with a common seal may execute a document that is to have effect as a deed if the seal is fixed to the document and the fixing of the seal is witnessed by—

(a)2 directors of the corporation; or

(b)1 director and 1 secretary of the corporation; or

(c)for a proprietary company that has a sole director—that director, if—

(i)the director is also the sole company secretary; or

(ii)the company does not have a company secretary.

(3)Despite subsections (1) and (2), a corporation sole or statutory corporation may execute a document that is to have effect as a deed, without using a seal, if the document is signed by a person, or in a way, authorised by the Act or another document under which the corporation is established, incorporated or registered.

(4)For a corporation with a common seal executing a document that is to have effect as a deed, or a corporation sole or statutory corporation using a seal, the fixing of the seal to the document is taken to have been witnessed by a person if—

(a)the person observes the fixing of the seal by audio visual link; and

(b)the person signs the document; and

(c)the document includes a statement that the person observed the fixing of the seal by audio visual link.

(5)A corporation that is not incorporated under a law of the Commonwealth or a State may execute a document that is to have effect as a deed if the document is signed by a person, or in a way, authorised by the law of the place in which the corporation is incorporated.

(6)A document that is to have effect as a deed may be signed under this section whether or not in the presence of a witness.

(7)If a person signs a document that is to have effect as a deed for a corporation as a lawfully authorised agent or attorney for the corporation, the person must—

(a)sign the document in a way that indicates the person is signing as a lawfully authorised agent or attorney; and

(b)if the person is an individual—sign the document under section 51; and

(c)if the person is a corporation—sign the document under this section.

(8)This section does not limit or otherwise affect the ways in which a document that is to have effect as a deed for a corporation may be executed by the corporation.

(9)In this section—

attorney, for a corporation, means a person acting under the authority of a power of attorney given by the corporation under a deed, a general power of attorney made under the Powers of Attorney Act 1998, or another law.

audio visual link means facilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing.

statutory corporation means an entity established, incorporated or registered under an Act of the Commonwealth or a State, that is not a corporation registered under the Corporations Act.

53   Execution by partnership or unincorporated association

(1)An individual may execute a document that is to have effect as a deed on behalf of a partnership or unincorporated association by signing the document.

(2)An individual may sign a document under subsection (1) whether or not in the presence of a witness.

(3)If an individual signs a document under subsection (1), the individual must sign the document in a way that indicates the person is executing the document on behalf of the partnership or unincorporated association.

(4)A reference in subsection (1) to a document includes a document containing a power of attorney for the partnership or unincorporated association.

(5)This section does not limit or otherwise affect another law or document that requires or permits a document executed on behalf of a partnership or unincorporated association to be executed in a particular way.

Example—

This section does not affect a document that requires or permits a document executed on behalf of a partnership to be executed by a stated number of partners.

54   Execution by the State

(1)A person who is authorised to execute a document that is to have effect as a deed for the State may execute the document by signing the document.

(2)The person may sign the document under subsection (1) without using a seal and whether or not in the presence of a witness.

(3)If a seal is used to execute a document that is to have effect as a deed for the State, the fixing of the seal to the document is taken to have been witnessed by a person who is authorised to witness the fixing of the seal if—

(a)the person observes the fixing of the seal by audio visual link; and

(b)the person signs the document; and

(c)the document includes a statement that the person observed the fixing of the seal by audio visual link.

(4)This section does not limit or otherwise affect—

(a)section 52(3); or

(b)the State’s powers or legal capacity under another law.

(5)In this section—

State includes a public sector unit and any other entity that represents the State.

55   Signing counterpart or true copy

(1)A document that is to have effect as a deed for a person may be signed by or for the person by signing a counterpart or true copy of the document.

(2)For subsection (1), if the counterpart or true copy is electronically signed by a person, the counterpart or true copy need not include any material included in the document about the method used for electronically signing the document.

(3)In this section—

person includes a partnership, an unincorporated association and the State.

Subdivision 3 Miscellaneous matters

56   Delivery

(1)The execution of a document in the form of a deed does not, of itself, constitute delivery of a deed, unless it appears the execution of the document was intended to constitute delivery of the document.

(2)Subject to subsection (1), delivery of a deed may be inferred from any fact or circumstance, including, for example, words or conduct, that indicates delivery.

(3)In this section—

delivery, of a deed, means an intention to be legally bound by the deed either immediately or subject to the fulfilment of 1 or more conditions.

57   Receipt in body of deed sufficient

(1)A receipt for consideration in the body of a deed or other document is a sufficient discharge for the consideration to the person giving the consideration without any further receipt for the consideration being endorsed on the deed or document.

(2)In this section—

consideration includes money and securities.

58   Deposit of deed in registry

(1)This section applies to a deed made under this division that is proposed to be deposited in a registry for the purpose of supporting another document lodged or deposited in the registry.

(2)If the deed is made in counterparts, each counterpart must be deposited in the registry for the purpose.

(3)If the deed or a counterpart of the deed is in the form of an electronic document, a printed copy of the deed or counterpart certified under subsection (4) must be deposited in the registry for the purpose.

(4)For subsection (3), the printed copy must be certified as a true copy of the original deed or counterpart—

(a)on a page of the printed copy; and

(b)by 1 of the following persons—

(i)1 of the signatories;

(ii)a lawyer;

(iii)a justice;

(iv)a commissioner for declarations;

(v)a notary public;

(vi)a trustee company under the Trustee Companies Act 1968;

(vii)a stockbroker.

(5)In this section—

registry means—

(a)the land registry; or

(b)the water allocations register under the Water Act 2000.

59   Protection for third parties

(1)A person may assume that a document has been duly executed by a corporation if—

(a)the document appears to have been signed under section 52(1) or (3); or

(b)for a corporation using a seal—

(i)the seal of the corporation appears to have been fixed to the document; and

(ii)the fixing of the seal appears to have been witnessed under section 52(2) or (4).

(2)This section does not limit or otherwise affect any requirement to be satisfied that a person signing a document is a director, secretary, or lawfully authorised agent or attorney, of a corporation.

60   Abolition of rule in Pigot’s case

(1)The rule of law known as the rule in Pigot’s case is abolished.

(2)Accordingly, a material alteration to a deed does not, by itself, invalidate the deed or render it voidable, or limit or otherwise affect any obligation under the deed.

Division 2 Covenants

61   Construction of expressions used in deeds and other documents

(1)In a deed, contract, will or other document, unless the context otherwise requires—

(a)the term month means calendar month; and

(b)the term person includes an individual and a corporation; and

(c)words indicating a gender include each other gender; and

(d)words in the singular include the plural and words in the plural include the singular.

(2)A covenant, power or term implied in a deed, contract, will, or other document under this Act or another Act must be construed under subsection (1).

62   Implied covenants may be negatived

(1)A covenant, power or term implied, under this Act or another Act, in a document has the same effect, and may be enforced in the same way, as if the covenant, power or term had been expressed in the document.

(2)However, the covenant, power or term implied in the document may be negatived, varied or extended by the express terms of the document or another document.

(3)This section is subject to this Act or another Act.

63   Covenants and agreements made by person with self and others

(1)A covenant, whether express or implied, or agreement, entered into by a person with the person’s self and 1 or more other persons, has the same effect, and may be enforced in the same way, as if the covenant or agreement had been entered into by the person with the other person or persons alone.

(2)In this section—

implied includes implied under this Act or another Act.

64   Covenants relating to land bind successors

(1)A covenant relating to land of a covenantee is taken to be made with each of the following—

(a)the covenantee;

(b)the covenantee’s successors in title;

(c)each person deriving title from a person mentioned in paragraph (a) or (b).

(2)A covenant relating to land of a covenantor, or land capable of being bound by a covenantor, is taken to be made by each of the following—

(a)the covenantor on behalf of the covenantor’s self;

(b)the covenantor’s successors in title;

(c)each person deriving title from a person mentioned in paragraph (a) or (b);

(d)for a restrictive covenant—the owners and occupiers for the time being of the land burdened by the covenant.

(3)Subsection (2) extends to a covenant to do some act relating to the land, notwithstanding that the subject matter of the covenant may not be in existence when the covenant is made.

(4)This section applies subject to any agreement to the contrary.

65   Particular covenants in registered easements bind successors

(1)This section applies to a covenant contained in a registered easement over land (the burdened land).

(2)If the covenant imposes an obligation, whether positive or negative, in relation to the use, ownership or maintenance of the burdened land, the covenant binds the grantor and the grantee of the easement, and each of their successors in title.

(3)A covenant imposes an obligation in relation to the use, ownership or maintenance of the burdened land if the covenant imposes an obligation—

(a)to maintain or repair the burdened land; or

(b)to construct, maintain, repair or replace improvements or infrastructure on the burdened land used in connection with the easement; or

(c)to pay for or contribute to the performance of an obligation mentioned in paragraph (a) or (b); or

(d)to pay for or contribute to rates or taxes relating to the burdened land; or

(e)to indemnify a party to the easement in connection with the use of the easement; or

(f)to insure, pay for or contribute to insurance in connection with the use of the easement.

(3A)Subsection (3) does not limit the covenants that may impose an obligation in relation to the use, ownership or maintenance of the burdened land.

(4)Subsection (2) does not apply if the covenant is expressed to be personal to the grantor or the grantee of the easement.

(5)This section does not limit or otherwise affect the Land Title Act 1994, part 6, division 4 or 4A.

(6)To remove any doubt, it is declared that a registered easement under this section includes a registered easement in gross.

66   No right to register restrictive covenant

To remove any doubt, it is declared that this Act does not confer on any person a right to register a restrictive covenant.

Part 7    Contracts, sales of land, instalment contracts and seller disclosure for sales of lots

Division 1 Contracts

67   Effect of joint promises and liabilities

(1)Subject to this Act and any other Act—

(a)a promise made by 2 or more persons takes effect, unless a contrary intention appears, as a promise made jointly and severally by each of those persons; and

(b)a joint liability is discharged, or a cause of action with respect to a joint liability is extinguished, by a fact, event or other thing only to the extent the liability would be discharged, or cause of action extinguished, by the fact, event or other thing if the liability were joint and several.

(2)In this section—

promise includes—

(a)a promise, bond or other obligation under seal or under a deed; and

(b)a covenant, whether express or implied under this Act.

68   Contract containing promise for benefit of third party

(1)This section applies if—

(a)a person (the promisor) and another person (the promisee) enter into a contract; and

(b)the contract contains a promise that the promisor will do or refrain from doing an act for the benefit of another person who is not a party to the contract (the third party).

(2)The promisor is subject to a duty enforceable by the third party to perform the promise.

(3)Subject to the terms of the contract, the contract or the promise may be terminated or modified by the agreement of the promisor and promisee before the third party accepts the benefit of the promise.

(4)If the third party accepts the benefit of the promise, either expressly or by conduct, an obligation imposed by the contract on the third party for the benefit of the promisor is enforceable by the promisor.

(5)The promise is enforceable by the third party in a proceeding brought in the third party’s own name.

(6)If the third party brings a proceeding under subsection (5)—

(a)the third party must serve each party to the contract with a copy of the proceeding; and

(b)a defence that would have been available to the promisor had the third party been a party to the contract is available to the promisor.

(7)If the promise creates an interest in land, this section applies subject to part 2, division 1.

(8)In this section—

contract includes a deed or another document if the deed or other document provides for the giving of consideration.

third party includes—

(a)a person designated by name, description or class; and

(b)a person not in existence when a promise is made.

69   Guarantee not enforceable unless in writing

(1)A guarantee is not enforceable in a proceeding unless—

(a)the guarantee is in writing or its terms are recorded in writing; and

(b)the guarantee or written record is signed by the party against whom the guarantee is sought to be enforced.

(2)However, subsection (1) does not require the consideration given for the guarantee to appear in writing or by necessary inference from a written document.

(3)Subject to the National Consumer Credit Protection Act 2009 (Cwlth), a guarantee may comply with subsection (1) even if the guarantee is—

(a)an electronic document; or

(b)digitally signed.

(4)In this section—

digitally sign, an electronic document, means sign the document using a method mentioned in the Electronic Transactions (Queensland) Act 2001, section 14.

guarantee includes an indemnity.

70   Effect of conclusive evidence provision

(1)If a contract or other document provides that a certificate of a person is conclusive evidence of a fact, the certificate is evidence, but not conclusive evidence, of the fact.

(2)However, subsection (1) does not apply to—

(a)a certificate of a person bound to act judicially, quasi-judicially or as an arbitrator in giving the certificate; or

(b)a certificate of an expert, including, for example, an architect or engineer, required to be independent and act fairly to the parties to the contract or other document in giving the certificate; or

(c)a provision in a contract or other document agreed to after a dispute has arisen about the fact.

(3)Subsection (1) applies—

(a)subject to any other Act; and

(b)despite any agreement to the contrary.

(4)In this section—

certificate includes a statement and an opinion.

fact includes a circumstance, event, matter and state of affairs.

71   Effect on contract of non-compliance with statutory instrument

(1)A statutory instrument, other than prescribed subordinate legislation, does not and can not—

(a)render voidable or unenforceable any contract or disposition concerning property that is made, entered into or effected contrary to the statutory instrument; or

(b)for a contract for the sale of land—give a party to the contract a right to terminate the contract for a failure by another party to the contract to comply with the statutory instrument.

(2)In this section—

prescribed subordinate legislation means subordinate legislation prescribed by regulation for this section.

72   Effect of statutory requirement for certificate

(1)This section applies if an Act requires a certificate to be obtained or given before or when—

(a)entering a contract for the disposition of property; or

(b)making a disposition of property.

(2)It is sufficient compliance with the requirement if the certificate is obtained or given before settlement of the contract or disposition.

(3)Subsection (2) does not apply if this Act or another Act expressly provides otherwise.

(4)In this section—

certificate includes an approval and a consent.

settlement, of a contract or disposition, means—

(a)for a sale—settlement of the sale; or

(b)for a lease—entry into possession under the lease by the lessee; or

(c)for a mortgage—the acceptance of liability under the mortgage by the mortgagor; or

(d)otherwise—the finalisation of the contract or disposition.

73   Stipulations not of essence of contract

(1)This section applies to a stipulation in a contract, as to time or otherwise, that under the rules of equity is not of the essence of the contract.

(2)The stipulation must be construed, and has effect at law, under the rules of equity.

Division 2 Sales of land

74   Definitions for division

In this division—

computer means all or part of a computer, computer system or computer network and includes, for example, all external devices connected to the computer in any way or capable of communicating with each other as part of a system or network.

conveyancing transaction see the Electronic Conveyancing National Law (Queensland), section 3.

e-conveyance means a conveyancing transaction to be completed using e-conveyancing.

e-conveyancing means a system of land conveyancing that uses an ELN to lodge documents electronically for the purpose of land titles legislation.

electronic workspace, for an e-conveyance, means a shared electronic workspace within an ELN that allows the participating subscribers to the e-conveyance—

(a)to lodge a document electronically under the Electronic Conveyancing National Law (Queensland); and

(b)if relevant, to authorise or complete financial settlement of the e-conveyance.

ELN means an Electronic Lodgment Network under the Electronic Conveyancing National Law (Queensland).

financial settlement, of an e-conveyance, means the exchange of value, in an ELN, between financial institutions in accordance with the instructions of participating subscribers to the e-conveyance.

land titles legislation see the Electronic Conveyancing National Law (Queensland) Act 2013, section 6.

participating subscriber, to an e-conveyance, means a subscriber who is involved in the e-conveyance as a party to the e-conveyance or as a representative of a party.

sale, of land, includes an exchange for value.

subscriber see the Electronic Conveyancing National Law (Queensland), section 3.

75   Reference to settlement of sale of land using e-conveyancing

(1)A reference in this Act or another Act to the settlement, however described, of the sale of land or a contract for the sale of land, using e-conveyancing, is a reference to the electronic workspace for the e-conveyance recording—

(a)financial settlement of the sale; or

(b)if there is no financial settlement of the sale—the acceptance by the registrar, for electronic lodgement, of the documents necessary to transfer title.

(2)Subsection (1) does not apply if this Act or another Act expressly provides otherwise.

76   Implied conditions

(1)The following conditions are implied in a contract for the sale of land—

(a)the seller must give the buyer, at the cost of the seller, a copy of each document, in relation to which a caveat is registered, that is in the possession of the seller;

(b)the seller must, at the cost of the seller, remove any objection to the registration of any document required to give effect to the contract unless—

(i)the objection arises from the buyer’s own act or omission; or

(ii)the objection may have been discovered by a reasonable person in the position of the buyer, and was not raised by the buyer, before settlement;

(c)if the seller is required under the contract to transfer the land free from encumbrances—the seller must, on settlement of the contract—

(i)discharge any encumbrances out of the purchase money payable under the contract by the buyer; and

(ii)for an encumbrance registered on the title to the land—give the buyer a release of the encumbrance in registrable form.

(2)Also, if a sale of land is not an e-conveyance, the following conditions are implied in the contract for the sale of the land—

(a)payment or tender of money payable under the contract may be made by a cheque drawn on a financial institution;

(b)settlement of the contract must take place at—

(i)the office of the land registry at which the document relating to the sale may be lodged; or

(ii)if there is more than 1 office under subparagraph (i)—the office of the land registry nearest the land.

(3)This section applies subject to the terms of the contract for the sale of the land.

77   Buyer may rescind contract if residential dwelling unfit for occupation

(1)This section applies if—

(a)parties enter into a contract for the sale of land; and

(b)the land contains or comprises a residential dwelling; and

(c)before the earlier of the following to happen, the residential dwelling is so damaged or destroyed as to be unfit for occupation as a residential dwelling—

(i)the settlement of the contract;

(ii)the buyer taking possession of the land under the contract or another document.

(2)The buyer may rescind the contract by giving notice to the seller of the rescission before the earliest of the following to happen—

(a)the settlement of the contract;

(b)the buyer taking possession of the land under the contract or another document;

(c)the seller restoring the residential dwelling to the condition it was in immediately before it was so damaged or destroyed as to be unfit for occupation as a residential dwelling.

(3)If the seller restores the residential dwelling to the condition it was in immediately before it was so damaged or destroyed as to be unfit for occupation as a residential dwelling, the seller must give notice to the buyer of the restoration as soon as practicable after the restoration.

(4)The buyer may, after receiving notice under subsection (3) and giving reasonable notice to the seller, inspect the residential dwelling.

(5)On rescission of the contract, an amount, if any, paid under the contract by the buyer must be refunded to the buyer.

(6)This section applies despite any agreement to the contrary.

(7)In this section—

residential dwelling—

(a)means a building or part of a building used, or currently designed for use, only as a single dwelling; and

(b)includes a residential dwelling that comprises—

(i)a lot included in a community titles scheme; or

(ii)a lot under the Building Units and Group Titles Act 1980; or

(iii)a leasehold building units lot under the South Bank Corporation Act 1989, section 97B; and

(c)does not include a building or part of a building used, or currently designed for use, as temporary accommodation.

78   When day of settlement is next business day

(1)This section applies if—

(a)parties enter into a contract for the sale of land; and

(b)the contract provides that the day of settlement of the contract is a day that is not a business day in—

(i)the place where the contract is to be settled; or

(ii)if the contract is to be settled electronically and the contract does not provide for a place where the contract is to be settled—the place where the land is located; and

(c)the contract does not designate the day mentioned in paragraph (b) as a Saturday, Sunday or public holiday.

(2)Despite the terms of the contract, the day of settlement of the contract is—

(a)if the parties to the contract agree to another day of settlement—the day agreed; or

(b)otherwise—the next business day in the place mentioned in subsection (1)(b) after the day of settlement provided for in the contract.

79   Effect of inoperative computers in office of the land registry on day of settlement

(1)This section applies if—

(a)parties enter into a contract for the sale of land; and

(b)the contract provides that time is of the essence; and

(c)the buyer, without default on the buyer’s part, can not, on the day of settlement of the contract, verify the seller’s title because computers in the office of the land registry being used to verify the seller’s title are inoperative.

(2)Time stops being of the essence of the contract.

(3)The seller is taken—

(a)not to have proved title to the land; and

(b)not to be in breach of the contract only because of the failure to prove title at that time.

(4)The seller or buyer may give a notice to the other party to the contract to complete the contract.

(5)The notice must state—

(a)that the computers are again fully operational; and

(b)the day, at least 3 business days but not more than 7 business days after the day the notice is given, for settlement of the contract.

(6)The notice may not be given earlier than the day after the first continuous day of operation of the computers after the computers are again fully operational.

(7)From a party’s receipt of the notice, time is again of the essence of the contract.

(8)This section applies subject to the terms of the contract for the sale of the land.

80   Effect of inoperative computers in particular entities on day of settlement

(1)This section applies if—

(a)parties enter into a contract for the sale of land that is an e-conveyance; and

(b)the contract provides that time is of the essence; and

(c)the contract can not, on the day of settlement of the contract, be settled because computers used by any of the following entities are inoperative, including, for example, because the entity is closed for business—

(i)an office of the land registry;

(ii)an office of the Commissioner of State Revenue under the Taxation Administration Act 2001;

(iii)the Reserve Bank of Australia;

(iv)a financial institution;

(v)an ELN.

(2)The parties to the contract are taken not to be in breach of the contract only because of the failure, on the day of settlement of the contract, to complete settlement of the contract.

(3)Time does not stop being of the essence of the contract.

(4)The day of settlement of the contract is taken to be the next business day.

(5)The parties must do everything required under the ELN to enable the contract to be settled on the next business day.

(6)This section applies subject to any agreement to the contrary.

(6A)To remove any doubt, it is declared that if, on the next business day mentioned in subsection (4), the contract again can not be settled because of the circumstances mentioned in subsection (1), this section again applies in relation to the circumstances.

(7)In this section—

business day means a day that is not—

(a)a Saturday or Sunday; or

(b)a public holiday in—

(i)the place where the contract is to be settled; or

(ii)if the contract is to be settled electronically and the contract does not provide for a place where the contract is to be settled—the place where the land is located; or

(c)a day in the period starting on 27 December and ending on 31 December.

81   Effect of adverse event on day of settlement

(1)This section applies if—

(a)parties enter into a contract for the sale of land; and

(b)the contract provides that time is of the essence; and

(c)a party to the contract (the non-attending party), because of an adverse event, can not, on the day and at the time of settlement of the contract, complete settlement of the contract.

(2)Time stops being of the essence of the contract.

(3)The non-attending party—

(a)must take reasonable steps to mitigate the effects of the adverse event on the settlement of the contract; and

(b)subject to compliance with paragraph (a)—is taken not to be in breach of the contract only because of the failure, on the day and at the time of settlement of the contract, to complete settlement of the contract.

(4)Despite the terms of the contract, but subject to any right under the contract to nominate a new day and time of settlement of the contract, the day and time of settlement of the contract are—

(a)if the parties to the contract agree to another day and time—the day and time agreed; or

(b)otherwise—the day and time determined under subsections (5) to (8).

(5)The non-attending party must—

(a)as soon as practicable after the adverse event, tell the other party of the adverse event and how the adverse event has caused the non-attending party to fail to complete settlement of the contract; and

(b)as soon as practicable after the adverse event stops preventing the non-attending party from completing settlement of the contract, give a notice to the other party to the contract to complete the contract.

(6)The notice under subsection (5)(b) must state—

(a)a day, at least 5 business days and not more than 10 business days after the day the notice is given, for settlement of the contract; and

(b)a time for settlement of the contract.

(7)From a party’s receipt of a notice under subsection (5)(b) and (6), time is again of the essence of the contract.

(8)If a notice is given under subsection (5)(b) by the buyer and the seller in relation to the same adverse event on the same day of settlement, the notice given by the seller prevails.

(9)In this section—

adverse event means an event that causes serious disruption to a community, including, for example—

(a)a cyclone, fire, flood, landslide, seismic event, storm, storm tide, tsunami or tornado; and

(b)a public health emergency under the Public Health Act 2005; and

(c)a requirement to comply with a lawful direction or order given by a government entity under a law of the Commonwealth or a State; and

(d)an act of terrorism, activity related to war, civil commotion, public disturbance or riot; and

(e)an explosion or sudden impact of an object, including, for example, an aircraft or object from space.

business day means a day that is not—

(a)a Saturday or Sunday; or

(b)a public holiday in—

(i)the place where the contract is to be settled; or

(ii)if the contract is to be settled electronically and the contract does not provide for a place where the contract is to be settled—the place where the land is located; or

(c)a day in the period starting on 27 December and ending on 31 December.

82   Direction for payment given by seller’s authorised agent sufficient discharge of buyer

(1)A written direction given by a seller’s authorised agent to the buyer or the buyer’s authorised agent in relation to the payment of money under a contract for the sale of land is sufficient discharge of the buyer in relation to the payment of the money.

(2)In this section—

authorised agent means—

(a)a legal practitioner; or

(b)a manager of a financial institution.

83   Buyer may recover damages if defective title

(1)The rule of law known as the rule in Bain v Fothergill is abolished in relation to a contract for the sale or other disposition of land.

(2)The court may award damages for loss of bargain against a seller who can not perform a contract for the sale or other disposition of land because of a defect in the seller’s title.

(3)This section does not affect a right, power or remedy available to a buyer under a contract for the sale or other disposition of land in relation to a defect in the seller’s title, or a failure of the seller to perform the contract, that is available under a law other than this section.

(4)This section applies despite any agreement to the contrary.

84   Buyer may recover deposit and instalments if defective title but no rescission

(1)This section applies if a seller is not entitled to specific performance of a contract for the sale of land against a buyer because of a defect in the seller’s title but the defect does not entitle the buyer to rescind the contract.

(2)The buyer may recover the buyer’s deposit and any instalments under the contract and is relieved from all liability under the contract, unless the contract discloses the defect and contains a term precluding the buyer from objecting to the defect.

(3)If the defect was known, or should reasonably have been known, to the seller at the date of the contract the buyer may also recover the buyer’s expenses of investigating the title.

(4)Also, without being limited by subsection (1), in any proceeding in which the court refuses to order specific performance of a contract, or in which the buyer seeks return of the deposit or any instalments under a contract, the court may order the repayment of the deposit and any instalments.

(5)This section applies despite any agreement to the contrary.

85   Seller may forfeit deposit of no more than 20 per cent if buyer breaches contract for sale of proposed lot

(1)This section applies in relation to a contract for the sale of a proposed lot.

(2)The contract may provide for a sum of not more than 20% of the purchase price of the proposed lot that is paid under the contract as a deposit, whether paid in 1 or more amounts, to be forfeited and retained by the seller in the event of a breach of the contract by the buyer.

(3)However, the sum mentioned in subsection (2) may only be forfeited or retained by the seller if the breach of the contract by the buyer results in termination of the contract.

(4)The sum mentioned in subsection (2) is not, either at law or in equity, a penalty if the sum is forfeited or retained by the seller under subsection (3).

86   When statutory right of termination on settlement ends if e-conveyance

(1)This section applies if—

(a)an Act provides for a right of termination, however described, in relation to a sale of land or a contract for the sale of land; and

(b)the right is expressed to end on settlement; and

(c)the sale is completed using e-conveyancing.

(2)The right of termination—

(a)ends on settlement; and

(b)may not be exercised during any period the electronic workspace for the e-conveyance is locked for the purpose of settlement.

(3)In this section—

locked, in relation to an electronic workspace for an e-conveyance, means the ELN for the workspace does not allow a participating subscriber to the e-conveyance to change a document or instruction in the workspace.

Division 3 Instalment contracts for sale of land

87   Definitions for division

In this division—

buyer, in relation to an instalment contract, includes a person deriving an interest under the contract from the original buyer.

contract, for the sale of land, includes—

(a)an agreement for the sale of land; and

(b)an option to purchase land.

deposit, in relation to a contract for the sale of land, means a sum of not more than the prescribed percentage of the purchase price of the land that is payable by the buyer in 1 or more amounts, and refundable to the buyer if the seller breaches the contract or does not fulfil a contingent condition of the contract.

instalment, in relation to a contract for the sale of land, does not include—

(a)an option fee relating to the land; or

(b)an amount paid by the buyer, after the contract was entered into and before settlement of the contract, in relation to any of the following—

(i)maintenance of the land;

(ii)rent and outgoings relating to the land;

(iii)rates and taxes relating to the land;

(iv)interest on any part of the purchase price under the contract for the land;

(v)an extension of time to complete the contract.

instalment contract see section 89.

option fee, relating to land, means an amount paid for the grant or exercise of an option to purchase the land.

prescribed percentage, of the purchase price of land, means—

(a)if the land is a proposed lot—20%; or

(b)otherwise—10%.

seller, in relation to an instalment contract, includes a person to whom the rights of the seller under the contract have been assigned with the consent under section 92 of the buyer.

88   Application of division

(1)This division applies in relation to an instalment contract despite any agreement to the contrary.

(2)However, despite section 3, this division does not bind the State, the Commonwealth or the other States.

(3)To remove any doubt, it is declared that this division does not apply in relation to a contract for the sale of land by the public trustee.

(4)In this section—

public trustee see the Public Trustee Act 1978, section 6.

89   What is an instalment contract

An instalment contract is a contract for the sale of land under which the buyer is bound to make 1 or more payments by instalment of the purchase price of the land, other than a deposit, and is not entitled to receive a transfer of the title to the land in exchange for the payments.

90   When buyer must give seller notice to constitute contract an instalment contract

(1)This section applies if a contract for the sale of land may, at the election of the buyer, be performed in a way that would constitute the contract an instalment contract.

(2)The contract is not an instalment contract unless and until the buyer gives the seller a notice stating that the buyer elects to perform the contract in a way that will constitute the contract an instalment contract.

91   Restriction on seller’s right to termination if buyer defaults on payment of instalment

(1)The seller under an instalment contract may not terminate the contract because of default by the buyer in payment of an instalment of the purchase price of the land, or in payment of any other sum of money, other than a deposit, until 30 days after the seller gives the buyer a notice in the approved form about the default.

(2)If a buyer receives a notice under subsection (1) about a default by the buyer in payment of an instalment or sum of money mentioned in subsection (1), the buyer may, within 30 days after the seller gives the notice to the buyer, pay the outstanding instalment or sum to the seller.

(3)If a buyer pays the outstanding instalment or sum to the seller under subsection (2), any right or power of the seller to terminate the contract because of the default ends and the buyer is taken not to be in default under the instalment contract.

92   Seller can not sell or mortgage land

(1)The seller under an instalment contract must not without the consent of the buyer sell or mortgage the land the subject of the contract.

(2)The buyer may give consent under subsection (1) only by giving the seller a notice stating that—

(a)the buyer has received a notice from the seller stating the terms of the sale or mortgage; and

(b)the buyer consents to the sale or mortgage on the stated terms.

(3)If land is sold or mortgaged in contravention of subsection (1), the instalment contract is voidable by the buyer before settlement of the contract.

(4)If the buyer elects to render the instalment contract void under subsection (3), the buyer may recover as a debt a deposit or instalment paid to the seller under the contract.

(5)This section does not limit or otherwise affect—

(a)a right or remedy of the buyer under a law other than this section; or

(b)a right of another person who buys from the seller in good faith, for value and without notice of the instalment contract.

(6)In this section—

consent, to a sale or mortgage, means consent to the stated terms of the sale or mortgage.

93   Buyer may lodge caveat

(1)The buyer under an instalment contract may, by a caveat under the Land Title Act 1994 that is stated to be lodged under this section, forbid the registration of any document affecting the land the subject of the contract until settlement of the contract.

(2)The caveat is taken, for the Land Title Act 1994, to have been lodged other than under part 7, division 2 of that Act.

(3)The caveat may, on the application of any person interested, be removed on proof to the satisfaction of the registrar or of the court that—

(a)the buyer has consented to removal of the caveat; or

(b)the instalment contract has been rescinded or terminated or discharged by performance or otherwise; or

(c)the caveat should be removed on another ground.

(4)This section does not limit or otherwise affect the powers of the registrar in relation to caveats under the Land Title Act 1994.

94   Buyer not in default may require seller to transfer land

(1)A buyer not in default under an instalment contract may give a notice to the seller requiring the seller to transfer the land on a stated day (the day of settlement) in exchange for payment of the balance of the purchase money owing at the day of settlement.

(2)The notice must—

(a)make time of the essence of the contract, if time is not already of the essence of the contract; and

(b)be given to the seller at least 3 months before the day of settlement.

Division 4 Seller disclosure for sales of lots

Subdivision 1 Preliminary

95   Definitions for division

In this division—

buyer, under a contract for the sale of a lot, means—

(a)if the contract is an option—

(i)for a call option—the grantee of the option; or

(ii)for a put option—the grantor of the option; or

(iii)for a put and call option—a person who is the grantee of the call option or grantor of the put option; or

(b)otherwise—the person who is bound under the contract, absolutely or conditionally, to buy the lot.

call option, for the sale of a lot, means an agreement or promise under which the grantor of the option agrees or promises to sell the lot to the grantee of the option if requested by the grantee.

contract, for the sale of a lot, includes—

(a)an agreement or promise for the sale of the lot; and

(b)an option for the sale of the lot.

disclosure documents, for a lot, means the documents required to be given by the seller of the lot to the buyer of the lot under section 99.

disclosure statement, for a lot, see section 99(1)(a).

listed corporation see the Corporations Act, section 9.

lot—

(a)has the meaning given by the Land Title Act 1994; and

(b)does not include a proposed lot.

option, for the sale of a lot, means—

(a)a put option for the sale of the lot; or

(b)a call option for the sale of the lot; or

(c)a put and call option for the sale of the lot.

prescribed certificate, applicable to a lot, see section 99(1)(b).

put and call option, for the sale of a lot, means a contract under which there is a call option for the sale of the lot and a put option for the sale of the lot.

put option, for the sale of a lot, means an agreement or promise under which the grantor of the option agrees or promises to purchase the lot from the grantee of the option if requested by the grantee.

related, for a buyer of a lot and a seller of a lot, see section 96.

seller, under a contract for the sale of a lot, means—

(a)if the contract is an option—

(i)for a call option—the grantor of the option; or

(ii)for a put option—the grantee of the option; or

(iii)for a put and call option—a person who is the grantor of the call option or grantee of the put option; or

(b)otherwise—the person who is bound under the contract, absolutely or conditionally, to sell the lot.

statutory body—

(a)has the meaning given by the Financial Accountability Act 2009; and

(b)includes—

(i)an entity of the Commonwealth or another State that is equivalent to a statutory body under the Financial Accountability Act 2009; and

(ii)an entity prescribed by regulation to be a statutory body for this definition; and

(c)does not include an entity prescribed by regulation not to be a statutory body for this definition.

96   When buyer and seller are related

(1)The buyer of a lot and the seller of a lot are related if—

(a)for a seller who is an individual—

(i)the buyer is a relative of the seller; or

(ii)the buyer is in a partnership under the Partnership Act 1891 with the seller; or

(iii)the buyer is a corporation of which the seller is a director or member; or

(iv)the buyer is a related body corporate of a corporation of which the seller is a director or member; or

(b)for a seller that is a corporation—

(i)the buyer is a related body corporate; or

(ii)if the seller is a corporation other than a listed corporation—the buyer is a director or member of the corporation or of a related body corporate.

(2)In this section —

related body corporate see the Corporations Act, section 9.

relative, of a seller, means—

(a)a parent, step-parent or grandparent of the seller; or

(b)a sibling, half-sibling or step-sibling of the seller; or

(c)an uncle, aunt, nephew, niece or cousin of the seller; or

(d)a child, step-child or grandchild of the seller; or

(e)a spouse of the seller; or

(f)if the seller has a spouse—a person who is a relative, of the type mentioned in any of paragraphs (a) to (d), of the seller’s spouse; or

(g)if the seller is an Aboriginal person or Torres Strait Islander—a person who is a relative, of the type mentioned in any of paragraphs (a) to (f), of the seller under Aboriginal tradition or Island custom.

97   References to things done by or in relation to buyer or seller

(1)This section applies in relation to a provision of this division that refers to—

(a)a thing required or permitted to be done by or in relation to a buyer of a lot or a seller of a lot; or

(b)a thing having been done by or in relation to a buyer of a lot or a seller of a lot.

(2)The thing may be done, or the thing may have been done, by or in relation to the buyer of the lot or seller of the lot either—

(a)personally; or

(b)by an agent who is authorised to act for the buyer or seller in relation to the thing.

Examples—

1A seller of a lot may sign a disclosure statement for the lot personally or by an agent authorised to act for the seller.

2A seller of a lot may give to the buyer of the lot a disclosure statement for the lot personally or by an agent authorised to act for the seller.

98   Contracting out prohibited

This division applies despite any agreement to the contrary.

Subdivision 2 Disclosure requirement

99   Seller must give buyer disclosure documents

(1)Before a contract for the sale of a lot is signed by the buyer, the seller must give the buyer—

(a)a statement (a disclosure statement) for the lot; and

(b)each document prescribed by regulation (each a prescribed certificate) applicable to the lot.

Note—

See section 97 in relation to acting by an agent.

(2)The disclosure statement must—

(a)be in the approved form; and

(b)include the information prescribed by regulation; and

(c)be completed with the information that is true at the time the statement is given to the buyer; and

(d)be signed by the seller.

(3)The approved form must contain, in appropriate places on the form, the warnings and other statements prescribed by regulation.

(4)A prescribed certificate may be a document that is required to be given to the buyer under another Act.

Examples of prescribed certificates—

1a document relating to the lot issued under another Act

2a document in which the seller of the lot certifies a stated thing has been done under another Act in relation to the lot

3a document containing information about the lot in a register kept under another Act

(5)For a contract under which there are 2 or more sellers of a lot, a reference in subsection (1) to the seller of a lot giving a disclosure statement or prescribed certificate is a reference to any of the sellers giving the statement or certificate.

(6)For a contract under which there are 2 or more buyers of a lot—

(a)a reference in subsection (1) to the seller of a lot giving a disclosure statement or prescribed certificate to a buyer of the lot is a reference to giving the statement or certificate to any of the buyers; and

(b)a reference in subsection (1) to the time the buyer of the lot signed the contract is a reference to the time the first buyer signed the contract.

(7)To remove any doubt, it is declared that a disclosure statement may be an electronic document and may be electronically signed.

100   Exceptions to requirement

The seller of a lot is not required to comply with section 99 if—

(a)both of the following apply—

(i)the buyer of the lot and the seller of the lot are related, or if there is more than 1, all of the buyers and all of the sellers are related;

(ii)before the buyer of the lot signs the contract for the sale of the lot, the buyer gives the seller of the lot, or if there is more than 1, any of the sellers, a notice waiving compliance with section 99; or

Example—

A seller is selling a lot to a parent and a person who is not related to the seller. The buyer who is the seller’s parent gives the seller a notice waiving compliance with section 99. The exception under paragraph (a) does not apply in relation to the contract because not all of the buyers are related to the seller.

(b)the buyer of the lot is—

(i)the State, the Commonwealth or another State; or

(ii)a local government or a local government, however described, of another State; or

(iii)a constructing authority under the Acquisition of Land Act 1967; or

(iv)a statutory body; or

(v)a listed corporation; or

(vi)a subsidiary of a listed corporation; or

(c)the seller of the lot is the Brisbane City Council or another local government and—

(i)the contract gives effect to the exercise of a power under the City of Brisbane Act 2010 or the Local Government Act 2009 to sell land to recover overdue rates or charges; and

(ii)before the contract for the sale of the lot is signed by the buyer of the lot, the seller gives the buyer, or if there is more than 1, any of the buyers, a notice stating that—

(A)the buyer needs to make the buyer’s own enquiries about matters affecting the property; and

(B)the seller is not required to comply with section 99; or

(d)the seller of the lot is the State and—

(i)the buyer of the lot was a tenant of the lot for at least 3 years immediately before entering the contract; and

(ii)before the contract for the sale of the lot is signed by the buyer of the lot, the seller gives the buyer, or if there is more than 1, any of the buyers, a notice stating that—

(A)the buyer needs to make the buyer’s own enquiries about matters affecting the property; and

(1)This section applies to a corporation, including, for example, a corporation incorporated under the Associations Incorporation Act 1981, the Corporations Act or another Act.

(2)If the corporation is incapable of acting for any reason, including, for example, the death or incapacity of an officer or member of the corporation, a designated person for the corporation may apply to the court for the appointment of an administrator.

(3)The court may order the appointment of an administrator if the court considers the appointment is necessary or desirable.

(4)The court may make any order that the nature of the case requires, including, for example, any of the following orders—

(a)an order that the appointment be for an indefinite period, a fixed period or until the happening of a stated event;

(b)an order imposing conditions;

(c)an order that the remuneration of the administrator is to be paid from the assets of the corporation.

(5)Subject to an order of the court, the administrator may—

(a)to the exclusion of the corporation and any officer or member of the corporation, exercise all the powers of the corporation; and

(b)delegate any of the powers exercisable by the administrator.

(6)The court may, on the application of an administrator appointed under subsection (3), or a designated person for the corporation—

(a)give to the administrator directions relating to the powers of the administrator or the affairs of the corporation; or

(b)remove or replace the administrator.

(7)If the court makes an order for the appointment, removal or replacement of an administrator in relation to a corporation incorporated under the Corporations Act, the order does not take effect until the order is lodged with ASIC.

(8)The order mentioned in subsection (7) must be lodged with ASIC—

(a)within 7 days after the order is made; or

(b)if the court allows a longer period—within the longer period.

(9)For subsection (2), a corporation is incapable of acting whether the corporation is incapable of acting—

(a)generally, or in relation to a particular transaction; or

(b)temporarily, or for an indefinite or other period.

(10)In this section—

designated person, for a corporation, means—

(a)an officer or member of the corporation; or

(b)the personal representative of a person mentioned in paragraph (a); or

(c)a creditor or another person claiming against the corporation.

Part 15    Unregistered land

225   Registrar must give public notice if request to register unregistered land

(1)This section applies if—

(a)a person asks the registrar to register an instrument relating to land; and

(b)the registrar believes the land is not included in the land registry.

(2)The registrar must give public notice of the request.

(3)The registrar may decide—

(a)what is to be included in the public notice; and

(b)how many times the public notice is to be published; and

(c)how and when the public notice is to be published.

(4)The public notice must include an invitation to any person who claims an interest in the land to give notice of the person’s claim to the registrar within 2 months after the public notice is published.

226   Registrar must give public notice if registrar believes land unregistered

(1)This section applies if—

(a)the registrar believes land is not included in the land registry; and

(b)a request in relation to the land has not been made under section 225.

(2)The registrar must give public notice of the registrar’s intention to include the land in the land registry.

(3)The registrar may decide—

(a)what is to be included in the public notice; and

(b)how many times the public notice is to be published; and

(c)how and when the public notice is to be published.

(4)The public notice must include an invitation to any person who claims an interest in the land to give notice of the person’s claim to the registrar within 2 months after the public notice is published.

227   Registrar may hold inquiry

(1)If an issue arises in relation to land mentioned in section 225 or 226, the registrar may hold an inquiry under the Land Title Act 1994, part 2, division 4 to consider the issue.

(2)To remove any doubt, it is declared that the Land Title Act 1994, part 2, division 5 applies in relation to the inquiry.

228   Obligations of registrar

(1)This section applies—

(a)when the 2-month period provided for in a public notice under section 225 or 226 ends; or

(b)if an inquiry is held under the Land Title Act 1994, part 2, division 4—when the inquiry is finally ended.

(2)The registrar must consider the following information—

(a)a request, if any, under section 225(1)(a);

(b)information, if any, provided by a person claiming an interest under section 225(4) or 226(4);

(c)information, if any, obtained under section 227;

(d)any other information the registrar considers appropriate.

(3)After considering the information mentioned in subsection (2), the registrar must decide to record in the land registry the particulars relating to the land the registrar considers appropriate.

(4)Without limiting subsection (3), the registrar may decide to—

(a)record the land as unallocated State land or freehold land; or

(b)record information, if any, provided by a person claiming an interest under section 225(4) or 226(4), including, for example, information relating to the use and possession of the land.

(5)The registrar must give the applicant, and any person claiming an interest under section 225(4) or 226(4), notice of the decision.

Part 16    General

Division 1 Service

229   Application of division

This division applies if this Act, or an agreement or another document relating to property, authorises or requires a document to be served on a person.

230   Relationship of division with other matters

(1)If this division is inconsistent with the Acts Interpretation Act 1954, part 10 or the Electronic Transactions (Queensland) Act 2001, this division prevails to the extent of the inconsistency.

(2)This division is subject to this Act or an agreement to the contrary.

(3)To remove any doubt, it is declared that this division does not limit or otherwise affect a power of a court relating to service of a document.

231   General requirements for service

(1)The document may be served on the person—

(a)if the person is an individual—

(i)by delivering the document to the person personally; or

(ii)by leaving the document at, or by sending the document by post to, the address of the place of residence or place of business of the person last known to the person serving the document; or

(iii)by electronic communication to an electronic address under section 233; or

(b)if the person is a body corporate—

(i)by leaving the document at, or sending the document by post to, the body corporate’s—

(A)registered office; or

(B)principal office; or

(C)principal place of business in the State; or

(ii)by electronic communication to an electronic address under section 233.

(2)If the document is sent by post, the document is taken to be served 7 business days after the document was sent unless the actual time the document was served by post is proven.

(3)Despite subsection (1), the court may—

(a)order that a document be served in a particular way; or

(b)dispense with the requirement to serve a document.

(4)In this section—

place of business see the Electronic Transactions (Queensland) Act 2001, schedule 2.

232   Individual absent from State or deceased

(1)This section applies if the person is an individual who is absent from the State or deceased.

(2)The document may be served on the person’s agent or personal representative in a way mentioned in section 231(1)(a).

(3)If the person’s agent or personal representative is not known, the document may be served under an order of a court.

233   Electronic communication

(1)This section applies if the person has designated an electronic address for receiving the document.

(2)The document may be served on the person by an electronic communication to the electronic address.

(3)The electronic communication must—

(a)attach the document in the form required by the Act, agreement or other document relating to property; or

(b)include the content of the document, as required by the Act, agreement or other document relating to property; or

(c)include an electronic link that allows the person to view and obtain a copy of the document mentioned in paragraph (a), or the content mentioned in paragraph (b), for a reasonable period.

(4)The time of receipt of the electronic communication is taken to be—

(a)if the communication is sent before 5p.m. on a business day—the business day; or

(b)if the communication is sent after 5p.m. on a business day—9a.m. on the next business day; or

(c)if the communication is sent on a day other than a business day—9a.m. on the next business day.

(5)However, subsection (4)—

(a)is subject to any agreement to the contrary; and

(b)does not apply if the actual time the electronic communication became capable of being retrieved by the person at the electronic address designated by the person is proven.

(6)To remove any doubt, it is declared that subsection (3)(c) is satisfied whether or not the person is required to take another step, including, for example, accepting terms and conditions of the electronic link, to access, and obtain a copy of, the document mentioned in subsection (3)(a), or the content mentioned in subsection (3)(b).

Division 2 Miscellaneous

234   Approved forms

The chief executive may approve forms for use under this Act.

235   Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may—

(a)prescribe fees payable under the Act; and

(b)provide for a maximum penalty of 20 penalty units for a contravention of a regulation.

236   Transitional regulation-making power

(1)A regulation (a transitional regulation) may make provision of a saving or transitional nature about any matter—

(a)for which it is necessary to make provision to allow or facilitate the doing of anything to achieve the transition from the repealed Property Law Act 1974 to this Act; and

(b)for which this Act or a regulation does not make provision or sufficient provision.

(2)A transitional regulation may have retrospective operation to a day that is not earlier than the day this section commences.

(3)A transitional regulation must declare it is a transitional regulation.

(4)This section and any transitional regulation expire 2 years after this section commences.

Part 17    Repeal

237   Repeal of Property Law Act 1974

The Property Law Act 1974, No. 76 is repealed.

Part 18    Savings and transitional provisions

Division 1 Preliminary

238   Application of Acts Interpretation Act 1954

This part does not limit or otherwise affect the Acts Interpretation Act 1954, section 20 or 20A.

239   Definitions for part

In this part—

corresponding provision, for a repealed provision, means a provision of this Act that is equivalent to, or substantially the same as, the repealed provision.

repealed Act means the repealed Property Law Act 1974.

repealed provision means a provision of the repealed Act as in force immediately before the commencement.

Division 2 Savings provisions

239A    Express references to general law of agency

(1)This section applies if—

(a)a repealed provision contained an express reference to the signing of a document by a lawfully authorised agent of a person; and

(b)a corresponding provision for the repealed provision omits the express reference mentioned in paragraph (a).

Note—

See sections 7, 8 and 9 and the repealed Act, sections 11, 12 and 59.

(2)To remove any doubt, it is declared that the omission of the express reference mentioned in subsection (1)(a) does not limit or otherwise affect the application of the general law of agency in relation to the corresponding provision.

240   Saving of abolition or modification of common law provided for in repealed Act

(1)This section applies if a repealed provision provided for the abolition or modification of a common law rule about a matter.

(2)To remove any doubt, it is declared that, whether or not there is a corresponding provision for the repealed provision, this Act does not affect the abolition or modification of the common law rule effected by the repealed provision.

(3)Without limiting subsection (2), it is declared that—

(a)if a document taking effect after the commencement of the repealed Act contains words that would have created an estate tail, the document is taken to create an estate in fee simple; and

Note—

See section 14 and the repealed Act, section 22.

(b)if a tenure is created by the State on granting an estate in fee simple after the commencement of the repealed Act, the tenure is in free and common socage without any incident of tenure for the benefit of the State; and

Note—

See section 15 and the repealed Act, section 20.

(c)if quit rent, or the residue of quit rent, issues to the State out of land after the commencement of the repealed Act, the land is released from quit rent; and

Note—

See section 16 and the repealed Act, section 20.

(d)if a corporation is dissolved, or otherwise ceases to exist, after the commencement of the repealed Act, subject to the Corporations Act, the State is entitled to take as bona vacantia any of the corporation’s property that would have been liable to escheat if escheat had not been abolished; and

Note—

See section 17 and the repealed Act, section 20.

(e)if a life tenant commits, after the commencement of the repealed Act, voluntary or equitable waste that is not permitted under the document creating the life estate, the life tenant is liable in damages to the person entitled, immediately after the life estate ends, to the fee simple interest in remainder in the land; and

Note—

See section 19 and the repealed Act, sections 24 and 25.

(f)if 2 or more persons acquire land after the commencement of the repealed Act in circumstances in which they would have acquired the land as coparceners, the persons acquire the land as tenants in common and not as coparceners; and

Note—

See section 25 and the repealed Act, section 33.

(g)if a receipt for consideration is in the body of a deed or other document executed on or after the commencement of the repealed Act, the receipt is a sufficient discharge for the consideration to the person giving the consideration without any further receipt for the consideration being endorsed on the deed or document; and

Note—

See section 57 and the repealed Act, section 51.

(h)if a seller can not perform a contract for the sale or other disposition of land, after the commencement of the repealed Act, because of a defect in the seller’s title, the court may award damages for loss of bargain against the seller; and

Note—

See section 83 and the repealed Act, section 68.

(i)for a mortgage entered into before or after the commencement of the repealed Act, other than in regard to the making of further advances as mentioned in the repealed Act, section 82(1), the right to tack is abolished; and

Note—

See section 126 and the repealed Act, section 82.

(j)a lease of land for a term of years entered into before or after the commencement of the repealed Act is capable of taking effect at law or in equity from the start of the term, without entry into possession of the land; and

Note—

See section 138 and the repealed Act, section 102.

(k)no interest under the Land Act 1994 or the Land Title Act 1994 can be created, after the commencement of the repealed Act, by prescription or through the doctrine of lost modern grant.

Note—

See section 182 and the repealed Act, section 198A.

241   Saving of abolition of common law rule that alien can not take, give, buy or sell property

To remove any doubt, it is declared that the repeal of the repealed Act, section 15A does not affect the abolition of the common law rule that an alien can not take, give, buy or sell property.

242   Particular provisions do not apply in relation to matters that happened before 1 December 1975

(1)This section applies if a repealed provision provided that the provision applied only in relation to a matter that happened after the commencement of the repealed Act.

(2)To remove any doubt, it is declared that a corresponding provision for the repealed provision does not apply in relation to a matter for which the corresponding provision provides that happened before the commencement of the repealed Act.

(3)Without limiting subsection (2), it is declared that a corresponding provision for the repealed provision does not apply in relation to the following matters that happened before the commencement of the repealed Act—

(a)the creation of a future interest in land;

Note—

See section 22 and the repealed Act, section 30.

(b)the making of a document containing an executory limitation on a gift over to another person;

Note—

See section 24 and the repealed Act, section 32.

(c)the acquisition or holding of property as a joint tenant by a body corporate;

Note—

See section 26 and the repealed Act, section 34.

(d)the disposition of an equitable interest in property to 2 or more persons together beneficially;

Note—

See section 28 and the repealed Act, section 35.

(e)the making of a promise by 2 or more persons;

Note—

See section 67 and the repealed Act, section 54.

(f)the making of a contract containing a promise to do or refrain from doing an act for the benefit of a third party;

Note—

See section 68 and the repealed Act, section 55.

(g)the making of a contract or other document providing that a certificate of a person is conclusive evidence of a fact;

Note—

See section 70 and the repealed Act, section 57.

(h)the creation of either of the following mortgages—

(i)a mortgage under which an amount is expressed to be advanced by 2 or more persons out of money belonging to them on a joint account;

(ii)a mortgage to 2 or more persons jointly;

Note—

See section 111 and the repealed Act, section 93.

(i)the discharge of a mortgage.

Note—

See section 133 and the repealed Act, section 98.

Division 3 Transitional provisions

243   Waiver of State’s rights to property by escheat on death intestate of person before commencement

A person may apply under section 18 for the waiver of the State’s rights to property by escheat, devolution or bona vacantia on the death intestate of a person whether the death happens before or after the commencement.

244   Liability of co-owner of property to account for interest in property arising before commencement

A co-owner of property is liable to account under section 27 to each other co-owner of the property whether the interest in the property of the co-owners arises before or after the commencement.

245   Abolition of rule in Pigot’s case

(1)Section 60 applies in relation to a material alteration of a deed whether the alteration is made before or after the commencement.

(2)However, section 60 does not apply in relation to a proceeding started before the commencement.

246   Covenant or agreement made by person with self and others before commencement

(1)Section 63 applies in relation to a covenant or agreement entered into by a person with the person’s self and 1 or more other persons, whether the covenant or agreement is entered into before or after the commencement.

(2)However, section 63 does not apply in relation to an order of the court made before the commencement.

247   Particular covenants in registered easements created before commencement

Section 65 applies in relation to a covenant contained in a registered easement over land for the benefit of other land whether the easement is created or registered before or after the commencement.

248   Effect of inoperative computers in office of the land registry on day of settlement on contract entered into before commencement

Section 79 applies in relation to a contract for the sale of land whether the contract is entered into before or after the commencement.

249   Effect of inoperative computers in particular entities on day of settlement on contract entered into before commencement

Section 80 applies in relation to a contract for the sale of land whether the contract is entered into before or after the commencement.

250   Effect of adverse event on day of settlement on contract entered into before commencement

Section 81 applies in relation to a contract for the sale of land whether the contract is entered into before or after the commencement.

251   Seller disclosure for sales of lots

(1)Part 7, division 4 applies in relation to a contract for the sale of a lot only if the contract is entered into after the commencement.

(2)If a contract for the sale of a lot arises from the exercise of an option, part 7, division 4 applies in relation to the contract only if the option is granted after the commencement.

252   Mortgagee’s power of sale in relation to disclaimed property mortgaged before commencement

A mortgagee may sell under section 115 land subject to a registered mortgage that has been disclaimed by a trustee in bankruptcy or a liquidator whether the registered mortgage is entered into, or the disclaimer happens, before or after the commencement.

253   Court may order sale of mortgaged property in proceeding for redemption or foreclosure started before commencement

The court may order in a proceeding a sale of mortgaged property under section 134 whether the proceeding is started before or after the commencement.

254   Realisation of equitable mortgage in proceeding started before commencement

The court may make an order under section 135 in a proceeding brought in relation to an equitable mortgage whether the proceeding is brought before or after the commencement.

255   Dealings with leases entered into before commencement

(1)Subject to subsection (2), part 9, division 4 applies in relation to a dealing with a lease if the dealing happens after the commencement, whether the lease is entered into before or after the commencement.

(2)Section 144 applies only if the lease is entered into after the commencement.

256   Relief in relation to leases entered into before commencement

Part 9, division 5 applies in relation to a lease as mentioned in section 150 whether the lease is entered into before or after the commencement.

257   No interest created by prescription before commencement

Section 182 applies whether the interest is alleged to have been created before or after the commencement.

258   Disposition with intent to defraud creditor before commencement

Section 193 applies in relation to the disposition of property whether the disposition happens before or after the commencement.

259   Powers of appointment over property created before commencement

Part 12 applies in relation to a document giving a person a power of appointment over property, including, for example, an appointment, or purported appointment, of property under the document, whether the document, or the appointment or purported appointment, is made before or after the commencement.

Schedule 1 Standard terms

section 139

1   Payment of rent

The lessee must pay the rent payable under the lease when it is due.

2   Payment of taxes, rates and other assessments

The lessee must pay all taxes, rates and assessments of any kind that are charged or chargeable on the land or the lessor, in relation to the leased premises for the term of the lease in the proportion that the area of the leased premises bears to the land subject to the assessment.

3   Maintain and leave the premises in good repair

(1)The lessee must at all times during the term of the lease—

(a)keep the leased premises, including any improvements made to the leased premises by the lessee with the consent of the lessor, and excluding any structural elements of the leased premises, in good condition; and

(b)at the end of the lease, whether by expiration of the lease term or otherwise, surrender and yield up the leased premises to the lessor in at least the same repair and condition in which the premises were in at the start of the lease.

(2)However, the lessee is not bound to repair any damage to the leased premises caused by—

(a)reasonable wear and tear; or

(b)any of the following—

(i)fire, flood, or explosion, whether or not the fire, flood, or explosion is caused or contributed to by the lessee’s negligence;

(ii)lightning, storm or earthquake;

(iii)any other cause the risk for which the lessor has insured the premises.

(3)Despite subclause (2)(b), the lessee is not excused from liability to repair any damage caused by any of the events mentioned in that subclause if, and to the extent that, any insurance moneys that would otherwise have been payable to the lessor for the destruction of or damage to the leased premises can not be recovered because of an act or omission of—

(a)the lessee; or

(b)the lessee’s agent, contractor or invitee; or

(c)any other person under the lessee’s direction or control.

4   Abatement of rent if premises are destroyed or damaged

(1)If the leased premises or any part of them are destroyed or damaged by a relevant cause to the extent that they become unfit for occupation and use by the lessee, the rent and any contribution payable by the lessee to the outgoings on those premises abates, in fair and just proportion to the destruction or damage, until the premises or part of them—

(a)have been repaired and reinstated; and

(b)are again fit for occupation and use by the lessee.

(2)Despite subclause (1), the lessee is not entitled to the abatement referred to in that subclause if, and to the extent that, any insurance moneys that would otherwise have been payable to the lessor for the destruction of or damage to the leased premises can not be recovered because of an act or omission of—

(a)the lessee; or

(b)the lessee’s agent, contractor or invitee; or

(c)any other person under the lessee’s direction or control.

(3)In this clause—

relevant cause means—

(a)fire, flood, or explosion, whether or not the fire, flood or other inundation of water, or explosion is caused or contributed to by the lessee’s negligence; or

(b)lightning, storm or earthquake; or

(c)any other cause the risk for which the lessor has insured the premises.

5   Assignment of the lease

(1)The lessee must not assign the lease without first obtaining the lessor’s written consent.

(2)The lessor’s written consent must not be unreasonably withheld.

6   Noxious or offensive acts or things

(1)The lessee must not do, or permit to be done, on the leased premises a prohibited thing to—

(a)the lessor; or

(b)the other lessees of the lessor; or

(c)the owners or occupiers of neighbouring properties.

(2)Subclause (1) does not apply to a prohibited thing contemplated under the lease.

(3)In this clause—

prohibited thing means—

(a)any noxious or offensive act or thing; or

(b)any act or thing that is, or is likely to be, a nuisance or that causes, or is likely to cause, any nuisance, damage, or disturbance.

7   Commission of waste

The lessee must not commit, or permit any of the lessee’s agents, contractors, or invitees to commit, voluntary waste in relation to the leased premises.

8   Lessee entitled to quiet enjoyment

(1)The lessee and all persons claiming under the lessee must be able quietly to enjoy the leased premises without disturbance by—

(a)the lessor; or

(b)the lessor’s agent, contractor or invitee; or

(c)any other person under the lessor’s direction or control.

(2)The lessor must not derogate from the lease.

9   Change of use

(1)The lessee must not use the premises for any purpose other than the purpose permitted under the lease unless the lessor consents to the change of use.

(2)The lessor must not unreasonably withhold consent to a request from the lessee for a change in use of the premises.

10   Power to inspect premises

(1)The lessor may at all reasonable times, either personally or by the lessor’s agent, enter the leased premises for the purpose of—

(a)inspecting their state of repair; or

(b)carrying out repairs; or

(c)complying with the requirements of—

(i)any Act or other law; or

(ii)any notice given by a competent authority.

(2)The lessor must not unreasonably interfere with the lessee’s occupation and use of the leased premises in the exercise of the power conferred by subclause (1).

11   Power to terminate lease for non-payment of rent or other breach

(1)The lessor may terminate the lease if—

(a)any rent is unpaid for 1 month after the due date for payment, whether or not a demand for payment has been made to the lessee by written notice signed by the lessor or the lessor’s agent; or

(b)the lessee has failed, for a period of 2 months, to observe or perform any other covenant, condition, or stipulation on the part of the lessee expressed or implied in the lease.

(2)The lessee is not released from liability for the payment of any unpaid rent or for the breach or non-observance of any other covenant, condition, or stipulation mentioned in subclause (1) if the lessor terminates the lease.

(3)Subclause (1) is subject to part 9, division 5, subdivision 2.

12   Lessee must remove lessee’s fixtures

(1)Before or at the end of the lease, whether by expiration of the lease term or otherwise, the lessee must remove and take away from the leased premises all fixtures, fittings, plant, machinery, utensils, shelving, counters, safes and other items owned by the lessee.

(2)The lessee must repair any damage caused to the leased premises by the removal of the items mentioned in subclause (1).

(3)If the lessee does not comply with subclause (1) or (2) within 1 month after the end of the lease term then the items mentioned in subclause (1) are taken to be abandoned items and the lessor is entitled to remove, sell or otherwise dispose of the abandoned items and to repair any damage caused to the leased premises by the removal of the items.

(4)The lessor may recover from the lessee any loss or damages incurred in exercising its rights under subclause (3).

Schedule 2 Dictionary

section 6

absolute, in relation to an assignment, for part 11, division 1, see section 189.

accepted method, for electronically signing a document, means a method that—

(a)identifies the signatory for the document and the signatory’s intention in relation to the content of the document; and

(b)is either—

(i)as reliable as appropriate for the purposes for which the document is made or signed, having regard to all the circumstances, including any relevant agreement; or

(ii)proven in fact to have fulfilled the functions mentioned in paragraph (a), by itself or together with further evidence; and

(c)is consented to by each other signatory to the document.

affected owner, for part 10, division 3, see section 185(2).

approved form means a form approved under section 234.

boundary means the boundary line between contiguous parcels of land.

breach, of a term of a lease, for part 9, division 5, subdivision 2, see section 152.

breach notice, for part 9, division 5, subdivision 3, see section 164(2)(a).

building, for part 10, division 3, see section 183.

buyer—

(a)means a buyer for valuable consideration, and includes a lessee, mortgagee, and other person who for valuable consideration acquires an interest in property; or

(b)in relation to an instalment contract, for part 7, division 3, see section 87; or

(c)under a contract for the sale of a lot, for part 7, division 4, see section 95.

call option, for the sale of a lot, for part 7, division 4, see section 95.

community titles scheme means a community titles scheme under the Body Corporate and Community Management Act 1997, section 10.

computer, for part 7, division 2, see section 74.

consent, to a method by a signatory to a document under the definition accepted method, paragraph (c)—

(a)includes consent that can reasonably be inferred from the conduct of the signatory; and

(b)does not include consent given subject to conditions unless the signatory complies with the conditions.

contract—

(a)for the sale of land, for part 7, division 3, see section 87; or

(b)for the sale of a lot, for part 7, division 4, see section 95.

conveyancing transaction, for part 7, division 2, see section 74.

co-owner, of property, means a person who has an interest in the property with 1 or more other persons as—

(a)joint tenants, whether at law or in equity; or

(b)tenants in common, whether at law or in equity.

copy, of an electronic document, for part 6, division 1, see section 44.

counterpart, for a document, for part 6, division 1, see section 45.

court means the Supreme Court.

debt, for part 11, division 1, see section 189.

debtor, for part 11, division 1, see section 189.

deed means a document that has under this Act or another Act the effect of a deed.

deposit, in relation to a contract for the sale of land, for part 7, division 3, see section 87.

designated person—

(a)for a lease of land, for part 9, division 5, subdivision 2, see section 152; or

(b)for a lease of land, for part 9, division 5, subdivision 3, see section 163.

director, of a corporation, for part 6, division 1, see section 44.

discharge, a mortgage, includes redeem and release the mortgage.

disclosure documents, for a lot, for part 7, division 4, see section 95.

disclosure statement, for a lot, for part 7, division 4, see section 99(1)(a).

disposition—

(a)of property—

(i)includes the following—

(A)a sale of property;

(B)a mortgage of property;

(C)a transfer of property;

(D)a grant of property;

(E)a partition of property;

(F)an exchange of property;

(G)a lease of property;

(H)an assignment of property;

(I)an instrument that vests property;

(J)a declaration of a trust of property;

(K)a surrender, disclaimer or release of property;

(L)the creation of an interest in property, including, for example, an easement or profit a prendre;

(M)the assurance of an interest in property by a document; and

(ii)does not include the following—

(A)a will;

(B)a devise of property;

(C)a bequest of property;

(D)an appointment by will in relation to property; and

(b)for part 13, see section 198.

document, for part 6, see section 44.

e-conveyance, for part 7, division 2, see section 74.

e-conveyancing, for part 7, division 2, see section 74.

electronic address includes an email address, internet protocol address, digital mailbox address and mobile telephone number.

electronically sign, a document, means sign the document using an accepted method.

electronic communication see the Electronic Transactions (Queensland) Act 2001, schedule 2.

electronic document means a record of information that is—

(a)a thing from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(b)a record of information reproduced from a thing mentioned in paragraph (a); or

(c)a record of information that exists in digital form and is capable of being reproduced, transmitted, stored or duplicated by electronic means.

electronic link includes a link to—

(a)a website; and

(b)a file hosting service; and

(c)a digital repository, including, for example, a drop box cloud storage platform; and

(d)another electronic medium.

electronic workspace, for an e-conveyance, for part 7, division 2, see section 74.

ELN, for part 7, division 2, see section 74.

encroaching owner, for part 10, division 3, see section 185(1).

encroachment, for part 9, division 3, see section 183.

financial settlement, of an e-conveyance, for part 7, division 2, see section 74.

income, in relation to land, includes rents and profits from the land.

information, for part 6, see section 44.

instalment, for part 7, division 3, see section 87.

instalment contract, for part 7, division 3, see section 89.

intestate see the Succession Act 1981, section 5.

land registry means the land register under the Land Act 1994, section 275.

land titles legislation, for part 7, division 2, see section 74.

lease, for part 9, division 5, see section 149.

lease terminable at will, for part 9, division 7, see section 172.

listed corporation, for part 7, division 4, see section 95.

lot, for part 7, division 4, see section 95.

mortgagee, for a mortgage, includes a person who derives title to the mortgage from another person who was a mortgagee for the mortgage.

mortgage money means money or money’s worth secured by a mortgage.

mortgagor, for a mortgage, includes a person who derives title to the mortgage from another person who was a mortgagor for the mortgage.

National Law, for part 7, division 2, see section 74.

notice means written notice.

notice to remedy breach, for part 9, division 5, subdivision 2, see section 153(1)(a).

office of the land registry has the meaning given by the Land Title Act 1994.

Note—

See also the Land Title Act 1994, section 9(4).

option, for the sale of a lot, for part 7, division 4, see section 95.

option fee, relating to land, for part 7, division 3, see section 87.

participating subscriber, to an e-conveyance, for part 7, division 2, see section 74.

party, to a lease, for part 9, division 7, see section 170.

perpetuity period, for a disposition of property under a trust, for part 13, see section 201.

physical document means a record of information that is—

(a)a thing on which there is writing; or

(b)a thing on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them.

possession, in relation to land, includes the receipt of income from the land.

power of appointment, over property, means a discretionary power to create or transfer a beneficial interest in the property without the provision of valuable consideration.

prescribed certificate, applicable to a lot, for part 7, division 4, see section 99(1)(b).

prescribed percentage, of the purchase price of land, for part 7, division 3, see section 87.

property, for part 5, division 2, see section 30.

proposed lot means—

(a)a proposed lot within the meaning of the Land Sales Act 1984; or

(b)a proposed lot within the meaning of the Body Corporate and Community Management Act 1997; or

(c)land that will be shown as a lot on a building units plan or group titles plan registered under the Building Units and Group Titles Act 1980; or

Note—

There is limited scope for the registration of new building units plans and group titles plans under the Building Units and Group Titles Act 1980—see section 5A of that Act.

(d)a proposed lot within the meaning of the South Bank Corporation Act 1989, section 97B.

put and call option, for the sale of a lot, for part 7, division 4, see section 95.

put option, for the sale of a lot, for part 7, division 4, see section 95.

reasonable compensation, for a breach of a term of a lease, for part 9, division 5, subdivision 2, see section 152.

register, a document, an interest, land or another thing, means record the particulars of the thing in the appropriate register in the land registry.

registrar means the registrar of titles under the Land Title Act 1994, section 6.

related, for a buyer of a lot and a seller of a lot, for part 7, division 4, see section 96.

rent includes rent payable in advance.

Resource Act see the Mineral and Energy Resources (Common Provisions) Act 2014, section 9.

sale—

(a)means a transfer for valuable consideration; or

(b)of land, for part 7, division 2, see section 74.

seal, of a corporation, for part 6, division 1, see section 44.

secretary, of a corporation, for part 6, division 1, see section 44.

security interest, for part 5, division 2, see section 30.

seller—

(a)in relation to an instalment contract, for part 7, division 3, see section 87; or

(b)under a contract for the sale of a lot, for part 7, division 4, see section 95.

short lease means—

(a)a lease for a term of not more than 3 years, including, for example, a lease created by parol taking effect in possession; or

(b)a tenancy from year to year or a shorter period.

sign, a document, for part 6, division 1, see section 44.

standard terms, of a lease, see section 139.

statutory body, for part 7, division 4, see section 95.

subscriber, for part 7, division 2, see section 74.

successor includes a personal representative and an assign.

term—

(a)for part 8, see section 108; or

(b)for part 9, see section 137.

termination notice, for part 9, division 7, see section 173.

thing in action, for part 11, division 1, see section 189.

time, of settlement of a contract, means the time provided for under the contract.

unregistered land means land that has been granted in fee simple and is not land under the provisions of the Land Title Act 1994 or land granted in trust under the Land Act 1994.

valuable consideration does not include a nominal consideration in money.