Queensland’s seller disclosure regime: Ways to give disclosure

Ensuring that disclosure is properly given is critical for sellers. If it is not done correctly, then a buyer may have a termination right available to them.

Ways to give disclosure

There are a few options available for a seller to give disclosure to a buyer. These are set out in sections 102 and 231 of the Property Law Act 2023 (Qld) (PLA) and include:

Email

Sending the disclosure documents by email with the buyer’s consent. This can be written consent (for example, by the buyer signing a ‘consent to receive electronic communications’ form), or in some cases can be inferred from the buyer’s conduct.

If the buyer has designated an email address to receive communications by email, then the buyer will be taken to have received the disclosure documents when the email would be able to be accessed on the buyer’s end. If no email address is designated, or if the seller uses another email address of the buyer, then the buyer must also be aware that the email has been sent to them for disclosure to be effective.

The email can either attach the disclosure documents or have an electronic link where the recipient can view and download a copy.

Physical copy

Providing the buyer with a physical copy of the disclosure documents. There would need to be evidence kept of when it was given and proper measures in place to make sure that all of the prescribed certificates were included.

Post

Hand delivering or posting the disclosure documents to the address of the buyer. If posted, there is a presumption that it will take 7 business days for the buyer to receive the documents, unless there is tracking information to show the actual time the package was delivered. The relevant address for:

• an individual – is their place of residence or place of business; or
• a company – is their registered office or principal place of business.

Physical document with a link

Giving the buyer a physical document that has an electronic link to the disclosure documents. For example, a physical flyer that states the disclosure documents could be viewed by using the website link printed on the flyer. However, the buyer may ask the seller for a copy of the disclosure documents, and the seller must give this by using one of the other options above. If the seller does not do this, then they will not have properly given disclosure.

Multiple buyers

Where there are multiple buyers, the seller can give the disclosure documents to any one of the buyers and it is taken to be given to all of the buyers under section 99(6) of the PLA. The disclosure documents must be given by the seller before the first buyer signs the contract of sale.

Using electronic links

Where disclosure is given by providing the buyer with an electronic link, the seller needs to show that the link worked at the time it was provided to the buyer and for a “reasonable period” afterwards.

As most property contracts in Queensland have a 30-day settlement period, a conservative approach would be for the seller to keep the link active for this timeframe up until settlement. This may not be reasonable or practical for transactions with a longer settlement period. There will likely be court decisions that consider what is reasonable in the context of these new provisions.

There is also no express legislative requirement for the seller to prove that the buyer actually clicked on the link or used it to access the disclosure documents.

Disclosure to bidders at auctions

Different requirements apply when the property is being sold at auction. The disclosure documents will need to be available to bidders from the start of the auction until completion of the auction (usually at the fall of the hammer, or when completion is announced by the auctioneer).

Where the buyer was not registered as a bidder until after the start of the auction, then the seller has some options under section 103 of the PLA to give disclosure.

For an in-person auction, the disclosure documents must be displayed at the place of the auction by having either:

• a full physical copy of the disclosure documents; or
• a physical document with an electronic link.

For an auction conducted electronically, the disclosure documents must be made available in the same electronic medium as the auction including either:

• a full copy of the disclosure documents; or
• a document that provides an electronic link to view and obtain a copy of the disclosure documents.

Where the buyer was registered as a bidder before the start of the auction, then the seller must provide the disclosure documents to the buyer using one of the above methods before the start of the auction to comply with the disclosure obligations.

Evidentiary requirements

It is important that the seller (or their agent) keep proper evidence to prove when and how disclosure occurred.

For a usual sale, this may be:

• email delivery receipts;
• electronic signature certificates showing timestamps; and/or
• for documents that have been sent by express or registered post, screenshots of the Australia Post tracking details to show the date of delivery.

For auctions, this evidence could include things such as:

• time stamped photos to show that physical disclosure documents were available at the start and completion of the auction;
• a screen recording of an auction conducted electronically; and/or
• contemporaneous file notes from the auctioneer to confirm what steps were taken at the auction to comply with the disclosure requirements.

If there is a dispute about the seller failing to give disclosure documents to a buyer, the seller has the onus of proving that the buyer was properly given the disclosure documents. Sellers should carefully consider which method of delivery to use and should get legal advice on their circumstances before signing a contract.

Exceptions require legal advice and a keen eye for detail

While exceptions exist for the seller disclosure regime, the cost of getting compliance wrong can be high. Macpherson Kelley’s Queensland Property lawyers are across all the relevant legislation and exceptions and can provide expert advice on the right option for you.

Contact our team to discuss the incoming regime and how it might affect the sale of your property.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.