The new seller disclosure scheme starts on 1 August 2025 for property sales in Queensland.
In this article, the Queensland Law Society Property and Development Law Committee explores some frequently asked questions about completing the approved Form 2 Seller disclosure statement (Form 2).
Under the scheme, introduced by the Property Law Act 2023 (PLA), a seller must give a buyer prescribed information in the approved Form 2 and prescribed certificates about the lot before the buyer signs a contract.
QLS has released a range of materials on the new seller disclosure scheme on the QLS Property Central page.
Key legislative concepts
- The seller disclosure obligations are set out in section 99 of the PLA.
- Before a contract for the sale of a lot (including an option) is signed by the buyer, the seller must give the buyer a disclosure statement for the lot and the prescribed certificates applicable to the lot.
- For the purpose of the seller disclosure scheme, a lot is a lot under the Land Title Act 1994. The requirements do not apply to the sale of:
- a leasehold interest under the Land Act 1994; or
- a proposed lot under the Land Sales Act 1994, the Body Corporate and Community Management Act 1997 or the Building Units and Group Titles Act 1994.
- There are also a number of exceptions listed in section 100 of the PLA (for example sales to certain government entities and sales to listed corporations and their subsidiaries).
- The prescribed information to be given to a buyer is found in section 8 of the Property Law Regulation 2024 (Regulation) and appears on the approved Form 2. Practitioners should note that a number of terms used in the Form 2 are defined in the PLA or the Regulation and these should be referred to in interpreting the requirements for completing the form.
- The prescribed certificates to be given to the buyer are found in section 5 of the Regulation (and are also referenced in the Form 2).
Preparing and completing a Form 2 and prescribed certificates
The Form 2 has been published for information purposes, although practitioners should note these are not in force until 1 August 2025.
The Form 2 requires a yes/no answer to various questions. To answer these questions, practitioners acting for sellers should seek instructions from their clients. A client may instruct they know the answer to the question. However, practitioners should also explain the risks of inaccurate disclosure under the seller disclosure scheme and how this informs a decision of whether to undertake searches to ensure an accurate response. If you are insured by Lexon, you should also consider the Conveyancing Protocol materials in this regard.
Search results obtained to answer those questions do not need to be attached to the Form 2, unless it is a prescribed certificate as defined, (for example, a Title Search).
The list of prescribed certificates appears in Property Law Regulation 2024, s 5. Notably, for a unit, prescribed certificates will include a body corporate certificate and a community management statement,
How do you complete the ‘Statutory Encumbrances’ section of the Form 2?
The Form 2 requires the seller to state whether there are any statutory encumbrances affecting the property (a yes/no question) and, if yes, to provide details of those statutory encumbrances.
Statutory encumbrances is defined in section 8(2) as:
“(a) a statutory charge over land arising from the non-payment of money to the Commonwealth, a State or a local government; or
(b) a statutory right to keep infrastructure on the lot; or
(c) a statutory right to access land to repair or maintain infrastructure on the lot.
Examples for paragraph (c)—
- an easement for a local government facility, including, for example, sewerage pipes, under the Local Government Act 2009, section 144
- a power to enter land for a telecommunications facility under the Telecommunications Act 1997 (Cwlth), schedule 3”
To complete paragraph (a), if the client is unable to answer the question, a practitioner would need to undertake usual authority and court searches to identify the existence of any moneys owed which may constitute a charge on the land (for example, land tax, local government rates and charges, a charge created upon a civil penalty being imposed under section 104 of the Foreign Acquisitions and Takeovers Act 1975 (Cth)).
For paragraphs (b) and (c), if the client is unaware, a practitioner would need to undertake usual searches to identify whether any statutory authority has infrastructure located on the lot (for example, electricity authorities, telcos, local government sewerage and drainage). If infrastructure is located on the lot or rights of access exist, a search may be required to obtain any relevant plan.
The details required to be provided are set out in section 8(2) of the Regulation (see definition of details, para (d)), namely:
- a description of the encumbrance; and
- if the encumbrance relates to infrastructure and the seller has a plan showing the location of the infrastructure, a copy of the plan.
Therefore, for example, where a search identifies that a council sewer main crosses the property the Form 2 would be completed as follows:
How do you complete the ‘Zoning’ section of the Form 2?
For most lots, the zoning will be the zone in which the lot is located under the relevant local government’s planning scheme. This can be obtained from the local government’s website (interactive planning tools) free of charge or by obtaining a limited planning certificate. Practitioners should advise their clients on the information available from the searches, and the risks of not conducting certain searches that may be required for their matter.
To complete the Form 2 the zone should be inserted into the form. There is no requirement to attach a copy of a search to the Form 2.
Practitioners need to be familiar with the definition of “zoning” in section 8(2) of the Regulation. The Acts listed in the following table override the local government planning scheme and for lots within areas governed by these Acts, the zone is the zone specified in the scheme under the relevant Act applying to the lot, not the local government’s planning scheme.
| Act | Applicable scheme | Location(s) |
| Economic Development Act 2012 | The scheme applicable to the relevant priority development area in which the lot is located | The location of Priority Development Areas are published on the Economic Development Queensland website. |
| State Development and Public Works Organisation Act 1971 | The scheme applicable to the relevant State development area in which the lot is located | The location of State development areas are published on the Queensland Globe and State Development and Infrastructure website. |
| Integrated Resort Development Act 1987 | The scheme of integrated resort development for the resort in which the lot is located | Hope Island Resort, Hope Island; Royal Pines Resort, Benowa; Laguna Quays Resort, Laguna Quays; Sheraton Grand Mirage Port Douglas Resort, Port Douglas; Kingfisher Bay Resort, Fraser Island. |
| Mixed Use Development Act 1993 | The relevant scheme of mixed use development for the development in which the lot is located | Cathedral Place, Fortitude Valley; Central Brunswick, Fortitude Valley; Cypress Gardens Retirement Community, Clear Island Waters; Royal Harbour, Cairns; Noosa Springs, Noosa Heads; Couran Cove Island Resort, South Stradbroke Island; Bretts Wharf, Hamilton; Osprey, Mackay; and Island Shores Resort, North Queensland |
| Sanctuary Cove Resort Act 1985 | The zones are specified in the Sanctuary Cove Resort Act 1985 | Sanctuary Cove Resort |
How do you complete the ‘Transport proposals and resumptions’ section of the Form 2?
The Form 2 has two questions to be answered by a yes/no answer:
- The lot is affected by a notice of intention to resume the property or any part of the property.The questions essentially cover the information prescribed in section 8(1)(i) of the Regulation. The lot is affected by a notice issued by a Commonwealth, State or local government entity and given to the seller about a transport infrastructure proposal to: (i) locate transport infrastructure on the property; or (ii) alter the dimensions of the property.
- The lot is affected by a notice of intention to resume the property or any part of the property.
The questions essentially cover the information prescribed in section 8(1)(i) of the Regulation.
If the answer to either question is “Yes”, a copy of the notice, order, proposal or correspondence must be given by the seller. However, practitioners should also consider the effect of section 5(1)(g) of the Regulation which requires the seller to give the buyer a copy of any document given to the seller.
Usual searches of the Department of Transport and Main Roads and local government may be undertaken if the client is unsure to ascertain whether there are any proposals affecting the property. However, if a proposal exists it is not sufficient to attach a copy of the search. Detailed client instructions and collation of “any documents” given to the seller by the relevant government entity will be required.
If there is a transport proposal affecting the lot but the seller has not received a ‘notice’ about the proposal is any further disclosure required in the Contract?
Practitioners should note that the drafting of clause 7.7(1)(b) of the REIQ Contract is unchanged and has broader application than the Form 2 requirement (clause 7.7(1)(b) applies if there is a proposal, the Form 2 requires disclosure where the seller has received notice of a proposal). There are instances where the authority may have formally adopted a proposal but has not yet taken steps to resume the land or notify affected owners.
To ensure the Buyer does not obtain a right to terminate under clause 7.7(1)(b) of the Contract, the Seller may need to disclose further information about existing proposals affecting the lot. Clause 7.7(1)(b) could also be deleted by special condition if desired.
How do you complete the ‘Contamination and environmental protection’ section of the Form 2?
The Form 2 asks 4 “Yes / No” questions in relation to contamination and environmental protection:
- whether the lot is recorded on the environmental management register or the contaminated land register and
- whether notices are or have been given as required by sections 408(2), 369C(2) or 347(2) of the Environmental Protection Act 1994 (EP Act).
Answering Yes or No to each of the questions will provide the prescribed information in section 8(1)(g) of the Regulation.
The notices under sections 408(2), 369C(2) and 347(2) of the EP Act are listed as prescribed certificates. Refer to section 5(1)(f) of the Regulation. These notices are only required to be given if the property is subject to contamination, an environmental enforcement notice or a transitional environmental program.
In the first instance, practitioners acting for sellers should speak to their clients about the questions regarding section 408(2), 369C(2) and 347(2) of the EP Act. Section 408(2) of the EP Act deals with a number of different types of notices, evaluations and orders and each should be explored with the client.
Sections 369C and 347 of the EP Act will generally apply to business premises, although both sections refer to the potential disposal of a “place or business” to which the program or order relates. Practitioners should discuss the relevant provisions with their clients.
A standard contaminated land search will provide the information required to respond to the questions about whether the lot is recorded on the Contaminated Land Register or the Environmental Management Register. If the lot is recorded on the EMR or CLR, further inquiries from the Department of Environment of Tourism Science and Innovation (DETSI) may be required to obtain a site management plan.
Information about environmental enforcement notices and transitional environmental programs under the Environmental Protection Act 1994 can be obtained through a search of the Public Register in order to identify any issues under sections 369C(2) and 347(2) of the EP Act.
Is it sufficient compliance with the requirement to give a notice under EP Act, s 408(2), to tick Yes on the Form 2?
No. If the lot is on the Contaminated Land Register or the Environmental Management Register a separate notice, with any relevant site management plan, must be given. A notice under s 408(2) is a prescribed certificate under Property Law Regulation 2024, s 5(1)(f).
Is there additional disclosure for contamination required in the REIQ Contracts?
Practitioners should also note the REIQ Contract, clause 7.4(1)(e) and (f) requires the Seller to consider other matters related to contamination and make further disclosure in addition to the required disclosure under the PLA.
For example, a seller who is aware of facts or circumstances that may lead to the lot being classified as contamination in the future will be required to disclose these facts to the buyer to comply with the warranties in clauses 7.4(1).
These warranties could also be removed from the Contract by special condition if desired.
If the Seller breaches the warranty in clause 7.4(1)(e) that “The Seller is not aware of any facts or circumstances that may lead to the Land being classified as contaminated land within the meaning of the EPA” then as this is not part of the PLA seller disclosure scheme, does the Buyer have any rights?
Yes, even though this is not required by the seller disclosure scheme in the PLA, the Buyer will still have rights under the Contract to either terminate or claim compensation if not disclosed before the Buyer signs the contract.
Can a seller who fails to disclose contamination give a notice under the Environmental Protection Act 1994 (EPA) after contract and limit the termination right to 21 days after receiving the notice?
Yes:
- Under section 104(4) of the PLA, the Seller’s failure to give a section 408 EPA notice before entering into the Contract gives the Buyer a termination right under the EPA.
- Therefore, the termination right under the PLA does not apply and the EPA governs the applicable termination rights.
- The EPA regime allows a Seller to ‘correct’ their failure and limit the Buyer’s termination right to 21 days after the notice is given.
Can I still give a Pool Safety Certificate up to settlement if it was not provided in the Seller Disclosure documents?
The Pool Safety certificate (PSC) or Notice of No PSC are prescribed certificates for the seller disclosure scheme. If the seller does not give the buyer the relevant certificate before the buyer signs the contract, then the buyer has a right to terminate under section 104(2) of the PLA.
There is no materiality test before exercising this right.
Do the prescribed certificates have to be attached to or given with the Form 2?
The PLA does not require the prescribed certificates to be ‘attached’ to the Form 2 or delivered in a particular order. Section 99 of the PLA simply requires the documents to be “given” to the buyer.
Section 101 of the PLA also gives some guidance, providing that the disclosure documents can be given:
- by electronic communication, including sending a link to the document, provided the requirements of section 102 are satisfied
- in a way mentioned in section 231(1)(a)(i) or (ii) or (b)(i) – which includes personal delivery, post or leaving or sending to a body corporate at its registered office, principal office or principal place of business in Queensland
- by separate or different communications and modes of communications and are not required to be given in a singular communication.
Reminder – always consider the contractual rights of the parties
With the new seller disclosure scheme introducing a range of new obligations and rights, it is critical that practitioners do not overlook the contractual rights of the parties or the existing contractual disclosure obligations.
Under the REIQ contracts, the seller gives a number of warranties (for example, in clause 7.4 and for community titles schemes, clause 12.9) and a breach of these warranties gives the buyer certain rights and remedies.
When advising their clients, practitioners should also remember to check the contractual warranties, rights and obligations for the transaction.
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