PAMDA: Rob Balanda informs investors of the critical changes
by Rob Balanda
The Queensland Government has passed changes to legislation relating to the sale and purchase of property in Queensland. The Real Estate Institute of Queensland has also introduced a new form of Contract for use in the sale of residential properties. While there is much involved in these changes, below are the changes that are most relevant to property investors in Queensland.
It is split into two sections:
1. The new REIQ Contract for the sale and purchase of residential property
2. PAMDA – major changes to legislation
New REIQ Contract
Essentially the new version of the Contract makes the Agreement fairer and complies with new Federal Laws on unfair Contracts. These new Laws and the new Contract basically give the Buyer the same rights that the Seller has in the case of a default under the Contract.
From a practical point of view the main practical change is that the clause that makes the Contract subject to a pest and building inspection now does not automatically state that if the Buyer does not advise the Seller about the fate of their pest and building inspections, they are deemed to be satisfied with the report. This was decided to be a potentially unfair term under the Australian Federal Laws. Now, in the event that the Buyer does not advise the Seller by the due date about the fate of their pest and building inspections, the Seller’s only right is to terminate the Contract. There is now no deemed compliance or satisfaction of the pest and building clauses. Hooray! Therefore, our lives will be a lot easier as it won’t be fatal now if a due date for pest and building inspection comes and goes and the Buyer forgets to tell the Seller or their solicitor in time regarding the fate of their inspections.
It was proposed initially that a Buyer have the right to demand the Seller pay them penalty interest if the Seller couldn’t settle on the due date in the same way that a Seller has for decades been charging interest for delayed settlements to Buyers. Unfortunately this provision did not end up seeing the light of day and was not introduced specifically into the new Contract.
The Property Agents & Motor Dealers Act (PAMDA) regulates the sale of residential property in Queensland and the Contract process. Hats off to the new Minister for Fair Trading who is responsible for this Legislation, Peter Lawlor, who drove the following changes through Queensland Parliament.
No longer will it be necessary to have slavish adherence to the extremely technical and very unfair provisions of PAMDA. Never again will it be necessary to give a string of documents to the Buyer in a specific order where previously failure to do so was fatal and resulted many times in Sellers terminating Contracts of Sale for nothing more than a technical breach of Legislation.
Now the Seller only has to give a “once only” clear statement to the Buyer (the Warning Statement) setting out the Buyer’s right to terminate the Contract during the cooling off. The Warning Statement must still be attached to the Contract but there is now no prescribed order the documents must be given in.
A Buyer will only have the earlier of 90 days or up to the date of settlement to terminate a Contract if the Statement is not given but if the Buyer has signed the bottom of the Warning Statement acknowledging that they have received it and their attention has been drawn to the right to terminate the Contract under the cooling off, their rights to terminate will be lost.
Rob Balanda is the author of the best selling book 'Clauses Made Simple' and a leading lawyer and educator of property law to the real estate industry. Details on his company MBA Lawyers can be found at www.mba-lawyers.com.au/
Investigate Property are buyer's agents of Investment property in the Brisbane City Council area. For more details on membership options click here.
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