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Sustainability Declarations - questionable pathway |
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Legal Comment by Mark Illidge
February 2010
Anyone who sells a house, townhouse or unit in Queensland must now complete a Sustainability Declaration before offering the property for sale. Real estate agents are required to ensure that the seller completes the form before they market the property, and certain types of advertising must advise how the completed form can be obtained. This declaration must be available at property inspections and given to potential buyers upon request.
The government expects that by making this form compulsory, prospective buyers will become more aware of the importance of sustainable factors (energy, water, and access and safety) in the home. However, a shortcoming in this process is that the seller need not complete questions to which they don’t know the answer.The maximum penalty for non-compliance with the new provisions is $2,000 for sellers and $10,000 for real estate agents. In addition to the prescribed monetary penalties, where a declaration contains material errors, or is prepared without reasonable skill and care, the seller is liable to compensate the buyer for any loss or expense the buyer incurs. The seller will be liable for a material inaccuracy even when the seller's real estate agent fills out parts of the form. Importantly, a buyer cannot terminate a contract merely because a declaration is incomplete or contains information that is false or misleading.
There is some confusion surrounding the penalties. While the declaration is to be completed for any property that is marketed from 1 January 2010, even if marketing commenced prior the that date, there are conflicting reports regarding a moratorium on penalites until 1 March2010. In fact, sellers and agents have been fully at risk from 1 January 2010, and additional on-the-spot fines may be introduced from 1 March 2010.
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