Property ownership laws
Buying and selling real estate property in Queensland is covered by many different laws.
Real estate property includes land, houses, units, townhouses, retirement villages and timeshare.
Getting professional help
Buying or selling your property is a huge financial commitment and you should think carefully about who you deal with.
Before signing anything, you should get legal advice on buying or selling your property. The Queensland Law Society can refer you to a solicitor.
Using a licensed agent to buy or sell real estate protects you under the Property Occupations Act 2014. Licensed agents must meet industry-based standards and codes of conduct. If you buy or sell privately, you will not be protected under the Act.
Contracts
Contracts for the sale of real estate must be in writing. In most cases, there is a standard contract, which is approved by the Real Estate Institute Queensland and Queensland Law Society.
Conditions
You might want to make the contract conditional on some things happening, such as:
- getting a satisfactory building and pest inspection
- getting a loan to finance the purchase
- selling your existing property.
A lawyer can advise you about important conditions but, before you sign anything, make sure you understand it.
Cooling off period
You have a cooling off period of 5 business days; however, if you cancel the contract in the cooling off period, you’ll have to pay a fee, which is a percentage of the purchase price. It’s important to get legal advice about your options.
Deposit
When you sign the contract, you usually pay a deposit. Sometimes the seller will accept a small deposit on signing, and the rest of the deposit once the contract becomes unconditional. There’s no set amount for a deposit, it is up to the buyer to say what they will accept.
Conveyancing
Once you sign a contract, it takes some time for the sale of the property to be finished. The process that happens after the contract is signed is called conveyancing.
Conveyancing involves all steps necessary to ensure that the registration of the land is in the name of the buyer at the government's land title office.
During the conveyance period, searches are done to ensure that the property is owned by the seller and not affected by things such as proposed reclaiming of land, contaminated land, easements or other government requirements.
You may do your own conveyancing or have it done for you.
You should get legal advice even if you plan to do your own conveyancing.
Buying or selling at auctions
If you decide to buy or sell a property at auction, generally the property will be offered for sale to the highest bidder. If your bid is accepted, you must sign an unconditional contract immediately. This means that, if you want to buy at auction, you need to check everything out before the auction. There is no cooling off period if you buy at auction.
Mortgages
If you borrow money to buy, build or renovate a property from a bank, building society or other lender, you usually do this with a mortgage. The lender (the mortgagee) creates a legal document (a mortgage) where you (the mortgagor) offer the property as security until you pay out the loan. If you do not make payments on the loan, the lender can sell the property to recover what you owe them. The sale of the property is called a mortgagee sale.
In a mortgagee sale, the lender must sell the property for a reasonable market value. The lender can keep money from the sale to cover the costs of sale and all the money you owe. Any money left over will be paid to you.
If the sale does not make enough money to cover what you owe the lender, you will remain legally responsible for the extra amount and the lender can take you to court you to recover the owed money.
Caveats
A caveat is a document that prevents any dealings with land (e.g. prevents the land from being sold). A caveat must be lodged with Titles Queensland.
If you wish to lodge a caveat, you should get legal advice, as you may have to pay costs if you lodge a caveat when you have no legal right to do so.
Joint ownership
When you own a property as a joint tenant, you and the other tenants own the property together.
It is not divided into shares; you each own the whole property together. If you own property as a joint tenant, you cannot leave that property in your will. When a joint tenant dies, their ownership in the property automatically passes to the surviving joint tenants. If you are the only surviving joint tenant, you will be the sole owner of the property.
If you want to end a joint tenancy, you should get legal advice.
If you own property as a ‘tenant in common’, you own a defined share of the property. This might be an equal share with the other owners or a defined percentage (e.g. 50% each or 25% and 75%).
As a tenant in common, you can transfer your share to someone else, so you can leave your share in the property in your will.
Transfer duty and land tax
If you are buying an investment property or home to live in, you will need to know about:
- transfer duty—all transfers of land and property are liable to transfer duty (formally known as stamp duty). Find current transfer duty rates.
- land tax—this tax is charged yearly on the total unimproved value of the land you own. Generally, you are exempt from land tax if your home is your principal place of residence. Take a land tax exemption eligibility test.