Selling your home in Queensland

Getting the disclosure right

The disclosure statement must be given to the buyer before they sign the contract, along with the prescribed certificates. The seller must be able to prove it was given, so delivery should be documented.

The statement covers, among other things, the seller and property details, title information and registered encumbrances, any tenancy, zoning, transport infrastructure proposals affecting the land, heritage listing, whether the land is recorded on a contaminated land register, pool compliance, and notices issued under building, planning and environmental legislation. Prescribed certificates typically include a title search and registered plan, a body corporate certificate for a lot in a community titles scheme, and pool safety documentation where there is a pool.

The consequence of getting it wrong is serious. If the required disclosure was not given before the buyer signed, or if it contained an inaccuracy about a material matter that the buyer was not aware of and that would have affected their decision to buy, the buyer may terminate at any time before settlement. That risk sits with you for the entire contract period, which is why the paperwork should be prepared before the property is listed rather than in the hour before a buyer signs.

Limited exceptions apply, including where the buyer is a State or local government body, certain related party transactions, and some high value sales where the buyer waives disclosure. Do not assume an exception applies without checking.

Before you list

1. Get the disclosure pack prepared. Searches and certificates take time to obtain, and a buyer will not wait.
2. Find your title details and any encumbrances. Easements, covenants, statutory charges and old caveats all need to be identified and dealt with.
3. Deal with unapproved building work. Decks, sheds, carports and enclosed patios built without approval come up in searches and in building reports, and they turn into price negotiations at the worst moment.
4. Get the pool certified. If there is a pool, a pool safety certificate is needed, and obtaining one after a contract is signed adds pressure and cost.
5. Read the agent appointment before you sign it. Form 6 sets the commission, the term of the exclusive agency, the marketing spend you are committing to, and how the appointment ends. It is a contract and it binds you even if the property does not sell.
6. Tell your solicitor about anything unusual. A deceased estate, a family law order, a co-owner who is overseas, a mortgagee in possession, or a property held in a trust all take extra time.

From contract to settlement

Once the contract is signed, you are managing the buyer's conditions and your own obligations.

The buyer has a five business day cooling-off period unless the sale was at auction or falls within the auction exception. If they terminate within it, you may retain a termination penalty of up to 0.25 per cent of the purchase price and must refund the balance of the deposit, generally within 14 days.

You should expect requests to extend the finance date and requests arising out of a building and pest report. Neither has to be agreed, but refusing an extension can end a sale you wanted. Decide with advice, and put any agreed extension in writing before the original date passes, because an extension granted after the date has expired may not save the contract.

Your own obligations continue to settlement. Keep the property insured until settlement, keep it in the condition it was in at contract, leave the inclusions listed in the contract, and be ready for the pre-settlement inspection. Outgoings such as rates, water and body corporate levies are adjusted at settlement, so you pay up to the settlement date and the buyer pays after it.

Money, tax and what leaves your account

• Agent commission, on the terms of the Form 6 appointment, usually payable at settlement out of the deposit.
• Marketing costs, which are frequently payable whether or not the property sells.
• Discharge of your mortgage, arranged with your lender in the electronic settlement workspace, plus any break costs on a fixed rate loan.
• Adjustments for rates, water and levies to the settlement date.
• Legal fees and searches.
• Foreign resident capital gains withholding. Unless the seller provides a valid clearance certificate from the ATO, the buyer is required to withhold a percentage of the price and pay it to the ATO. The rules and the rate have been tightened, and the requirement now applies to a much broader range of sales, so apply for a clearance certificate early. It is free and it can take time.
• Capital gains tax, which for a main residence is often exempt but is affected by periods of renting, use for business, and time spent overseas. That is a question for your accountant.

If the sale falls over and you end up in dispute with a buyer or an agent, the commercial position is set out at commercial dispute resolution.