Review of property law in Queensland

A comprehensive review of property law in Queensland is being conducted by the Commercial and Property Law Research Centre, QUT, for the Queensland Government.

The review considers:

1. seller disclosure in Queensland
2. issues arising under the Body Corporate and Community Management Act 1997 (BCCMA)
3. reform of the Property Law Act 1974 (PLA).

Seller disclosure in Queensland

An interim report on seller disclosure has been released. The report recommends the introduction of a statutory seller disclosure regime in Queensland to replace the existing regime where disclosure obligations can be imposed from various sources.

Issues arising under the BCCMA

A final report has been released in relation to lot entitlements under the BCCMA which recommends changes to the way that expenses are allocated within community titles schemes so that, generally speaking, expenses that benefit particular lots should be paid for by the owners of those lots and expenses that benefit all lots should be shared equally rather than based on lot entitlement.

Issues papers have been released on the topics of:

1. Body corporate governance issues: By‐laws, debt recovery and scheme termination The paper considers, among other things, enforcement of car parking and the ability to tow, the keeping of pets, smoking in or around lots, overcrowding of lots, debt recovery and improving by-law enforcement generally.
2. Procedural issues under the BCCMA: The paper considers, among other things, voting by resolution, electronic service of notices and electronic voting.

Reform of the PLA

The Commercial and Property Law Research Centre has also carried out a comprehensive review of the PLA to consider the need for modernisation, simplification or reform.

The Commercial and Property Law Research Centre has released a number of issues papers as part of its review of the PLA. A brief summary of each issues paper is set out below and some of the important areas for possible reform are identified.

Issues Paper 1: Sales of land and other related provisions

This issues paper considers the Statute of Frauds provisions in the PLA and considers the requirement for formalities in land transactions, having regard in particular to the increase in electronic transactions.

This paper also considers the covenants under the PLA and whether reform is required to enable positive covenants to run with the land.

Consideration is also given as to whether certain sections of the PLA are out of step with current conveyancing practice.

Issues Paper 2: Leases and Tenancies

This issues paper contains a comprehensive analysis of Part 8 of the PLA (leases and tenancies) including the interaction with other legislation and the ongoing relevance of Part 8 to current leasing practice.

The paper also considers the issue of continuing liability of an assignor under a lease after assignment, which is not currently addressed in the PLA.

Issues Paper 3: Incorporeal hereditaments, appurtenant rights, rights of way, apportionment, powers of appointment and perpetuities

This issues paper considers a number of historical rules enacted in the PLA, and their ongoing relevance.  In addition to considering which sections may require amendment or repeal, it also considers those sections that would benefit from clearer and modernised wording to create clarity and assist interpretation.

Issues Paper 4: Mortgages, Co-ownership, Encroachment and Mistake

This issues paper considers the ongoing relevance of co-ownership rules in the PLA and how certain sections might be reformed. The paper also considers mortgages in Part 7 of the PLA and which sections could benefit from modernisation of language or minor amendments. The paper also considers whether other sections need more extensive reform including whether Part 7 of the PLA should include a statutory right to early redemption and exclude mortgages of personal property which are governed by the Personal Property Securities Act 2009 (Cth). The paper also considers the policy behind and continuing relevance of sections dealing with encroachment and mistaken improvement.

Issues Paper 5: Equitable interests and things in action, Corporations, Voidable Dispositions, Unregistered Land, De Facto Relationships and Miscellaneous

This issues paper considers the ongoing relevance of a number of parts of the PLA which appear to be rarely used in modern practice. The paper seeks feedback as to whether any of these sections still serve a purpose in practice and includes preliminary recommendations for the repeal of certain sections.

Issues Paper 6: General rules affecting property, Freehold Estates, Future Interests, Deeds and Notices

This final issues paper examines the remaining parts of the PLA – general rules, freehold estates and future interests. A number of sections are considered to be obsolete and preliminary recommendations included for their repeal. A number of other sections are considered appropriate to be retained or retained with amendment to address difficulties in interpretation or to modernise language.

The paper considers formalities for deeds, particularly in the context of electronic transactions. As it is currently not possible to create a deed electronically, the paper considers various options for addressing this in statute including abolishing deeds altogether or modifying formal requirements for deeds to allow the creation of deeds electronically.

The paper also considers the requirements for notices in the PLA and whether service of notices electronically should be one of the methods of service set out in the PLA.

Conclusion

There is an opportunity for stakeholders to comment at various stages throughout the process. Further interim and final reports are likely later in 2017.

For further information, please refer to the website for the Department of Justice and Attorney-General.

Crown Law can help with your property law advice and transaction needs, contact the Assistant Crown Solicitor of our Commercial and Property Team, Melinda Pugh or Special Counsel, Angela Murphy.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}