With the seller disclosure scheme in the Property Law Act 2023 (PLA) commencing on 1 August 2025, QLS has continued to prepare responses to member queries and feedback.
This article supplements previous discussions in:
- Roadshow ends with PLA recap – Proctor – information about the new forms and obligations, new REIQ contracts how to give the new forms and scoping fees
- FAQs for seller disclosure forms – Proctor – information about completing the new Form 2 and collating prescribed certificates
The commentary below discusses:
- Body corporate certificates
- Off the plan contracts
- Registration confirmation statements
- Exceptions to seller disclosure in section 100 of the PLA and notices waiving compliance
- Pool safety certificates
- Unapproved building works
- How seller disclosure applies to options
- Property bequests in wills
Who prepares the body corporate certificate?
From 1 August 2025, the current section 206 disclosure statement no longer exists, and instead there are two new prescribed forms:
- Form 33 Body corporate certificate; and
- Form 34 Body corporate certificate for specified two-lot schemes.
The body corporate certificate is a ‘prescribed certificate’ under the Property Law Regulation 2024.
Under the amended section 205 of the Body Corporate and Community Management Act 1997, the body corporate must provide the body corporate certificate in the approved form within 5 business days after receiving the request and payment of the prescribed fee.
A person who obtains a body corporate certificate may rely on the certificate against the body corporate as conclusive evidence of matters stated in the certificate other than to the extent to which the certificate contains an error that is reasonably apparent (see section 205(7) of Body Corporate and Community Management Act 1997).
This means where the seller obtains the certificate for the purpose of providing seller disclosure, the seller will be entitled to rely on the certificate. The buyer will need to obtain its own certificate prior to settlement in order to have the benefit of section 205(7).
Note that the body corporate certificate does not include a copy of the community management statement for the scheme which is also a prescribed certificate. The seller is required to obtain the current CMS from Queensland Titles.
Similar amendments have been made to the Building Units and Group Titles Act 1980 (see new section 40AA and the prescribed form is BUGTA Form 18).
How does a seller comply if it is unable to obtain a body corporate certificate?
Section 6 of the Property Law Regulation 2024 provides two circumstances where a seller is permitted to provide an explanatory statement instead of a body corporate certificate. An explanatory statement is a statement by the seller that a body corporate certificate is not attached and the reason under section 6 that the seller has not been able to obtain the certificate.
1. Written notice of absence of records
The first circumstance is where the body corporate has advised the seller in writing that it does not have records that could be used to prepare a body corporate certificate, including, for example, because the records are missing, destroyed or in disarray.
2. No committee
An explanatory statement can also be provided if ALL of the following apply:
- the scheme is governed by a regulation module other than the Specified Two Lot Scheme Module;
- the original owner control period for the scheme has ended;
- the first AGM has been held;
- no committee has been chosen; and
- (for a scheme other than a commercial module scheme) no body corporate manager has been engaged under chapter 3 part 5 to carry out the functions of the committee.
Similar provisions apply for a lot included in a BUGTA scheme (see section 7 Property Law Regulation 2024).
It is important to note that an explanatory statement cannot be provided instead of a body corporate certificate simply because the body corporate fails to provide the certificate within the statutory 5 business day period.
Even if either of the above circumstances apply, practitioners should discuss with their clients whether to pursue the certificate (eg by requesting that a general meeting is convened or seeking appropriate orders under the dispute resolution provisions of the Body Corporate and Community Management Act 1997) as the absence of the certificate may adversely affect the price achievable for the lot.
How does the seller disclosure framework interact with the BCCM Act statutory warranties?
The statutory warranties given by a seller under Chapter 5, Part 3 (sections 220 onwards) of the BCCM Act were not amended as part of introducing the new PLA seller disclosure framework.
The new REIQ Contract for Sale and Purchase of Residential Real Estate (1st edition) includes a community titles scheme statutory warranties and contractual rights section on page 5. This should be completed on instructions from the seller when preparing the contract.
Members should also consider the comments on the new clause 12 in the Detailed Commentary Table provided with the new REIQ Contract for Sale and Purchase of Residential Real Estate (1st edition), available on the REIQ Contracts page on the QLS website. This document describes the drafting approach to the community title lot clauses.
Does the seller disclosure regime apply to off the plan contracts?
Seller disclosure does not apply to a contract for the sale of a proposed lot under the Land Sales Act 1994, the Body Corporate and Community Management Act 1997, the Building Units and Group Titles Act 1980 or the South Bank Corporation Act 1989, section 97B (see definition of proposed lot in the PLA).
The usual disclosure obligations under the applicable ‘proposed lot’ legislation will apply.
Can I use a Registration Confirmation Statement (RCS) as the title search ‘prescribed certificate’?
Section 5(1)(a) of the Property Law Regulation 2024 provides that a title search for the lot showing interests registered under the Land Title Act 1994 for the lot is a prescribed certificate. Title search is not defined in the Property Law Regulation 2024 or the Land Title Act 1994. However Queensland Titles issues a document headed “Current Title Search” for the purpose of section 35(1)(a) of the Land Title Act 1994 dealing with searches of the register.
Whilst a title search and an RCS both contain current details from the register (at the time of issue) it is prudent to obtain a title search and not rely on a recent RCS in order to ensure compliance with section 5(1)(a).
Is there a prescribed ‘waiver’ form for section 100 of the PLA?
Section 100 of the PLA sets out the exceptions to the seller disclosure requirements. Some of these exceptions operate only if the buyer of the lot also gives a notice waiving compliance with the disclosure obligations in section 99 of the PLA – for example, see section 100(a) regarding related parties.
There is no prescribed form for these waivers and practitioners should prepare any such waivers with reference to the drafting of section 100 of the PLA.
If the parties enter into a contract with a sale price of more than $10 million and the price is varied to under $10 million, is seller disclosure required?
To ensure there is no dispute as to whether the varied agreement should have been subject to the seller disclosure scheme, the most certain outcome is to rescind the contract and enter into a new contract giving effect to a new deal and providing disclosure documents before the buyer signs.
Similarly if the contract contains special conditions providing for a rebate or other benefit which may result in the actual consideration being less than $10 million, the prudent approach for the seller would be to comply with the seller disclosure regime.
Does a pool safety certificate have to be given as part of seller disclosure or can it given before settlement as required by the Building Act 1975, s246ATF(a)?
If there is a ‘relevant pool’ for the lot, section 5(1)(h) of the Property Law Regulation 2024 provides that either of the following is a prescribed certificate which must be given to the buyer before the buyer signs the contract:
- a pool safety certificate (PSC) or
- A Notice of No Pool Safety Certificate.
Importantly a relevant pool includes both a pool on the lot and a common property pool in a community titles scheme or BUGTA parcel in which the lot is situated.
This requirement applies as part of the seller disclosure regime under the Property Law Act 2023 even though there are different requirements under the Building Act 1975.
If a prescribed certificate is not given, the buyer has a right to terminate the contract under section 104(2) of the PLA and the materiality test in section 104(1)(b) does not apply.
Also note that where a PSC for a non-shared pool is given as part of seller disclosure,
Similarly if the contract contains conditions which cold this will now satisfy the requirement in the REIQ contract to give the buyer the PSC at settlement where a Notice of No Safety Certificate was not given before the contract was entered into.
Does the seller disclosure regime cover unapproved building works?
The seller disclosure framework does not require a seller to disclose that unapproved works have been carried out on the property (in the absence of a show cause or enforcement notice issued by the relevant authority). The Form 2 includes the warning that “The seller does not warrant the structural soundness of the buildings or improvements on the property, or that the buildings on the property have the required approval, or that there is no pest infestation affecting the property. You should engage a licensed building inspector or an appropriately qualified engineer, builder or pest inspector to inspect the property and provide a report and also undertake searches to determine whether buildings and improvements on the property have the required approvals.”
How does seller disclosure apply to options?
Seller disclosure applies to contracts of sale entered into on or after 1 August 2025 (see section 251(1) of the Property Law Act 2023).
Contract is defined in section 95 of the Property Law Act 2023 to include an option for the sale of the lot (also defined in section 95 to include a put and call option, call option or put option).
Therefore, for options entered into on or after 1 August 2025, a seller is required to provide seller disclosure before an option is entered into and before the resultant contract is entered into (on exercise of the option) unless the exception in section 100(j) of the Property Law Act 2023 applies. Section 100(j) provides in essence that seller disclosure is not required for a contract formed on exercise of an option if the buyer is the same entity as the grantee of the option (provided seller disclosure was given prior to entry into the option).
Consequently, for an option which gives the grantee a right to nominate another entity as buyer, the seller will be required to give seller disclosure to the nominee prior to exercise of the option. Practitioners drafting options should consider including a mechanism requiring prior notice of any proposed nomination to be given to enable the seller to give seller disclosure to the nominee prior the exercise of the option. Practitioners might also consider making it a condition of the nomination and/or exercise of option that the nominee signs and returns the acknowledgement at the end of the seller disclosure statement.
What if the option was signed before 1 August 2025 but exercised after?
Section 251(2) of the Property Law Act 2023 provides that the seller disclosure regime does not apply to a contract formed on exercise of an option where the option was entered into prior to 1 August 2025.
What are the requirements for an option for a proposed lot (entered into on or after 1 August 2025) which may be exercised after the plan has registered and title issued?
At the time of entry into the option, the seller is required to comply with the relevant off the plan disclosure requirements.
If the option is exercised before the issue of title (that is, when the property is still a ‘proposed lot’) by:
- the grantee, further disclosure is not required (Land Sales Act 1984, s9(3), Body Corporate and Community Management Act 1997, s 212B(3));
- a nominee, the seller must comply with the relevant off the plan disclosure requirements in relation to the nominee (Land Sales Act 1984, s9(4), Body Corporate and Community Management Act 1997, s 212B(4));
However, if the option is exercised after the issue of title, the seller disclosure regime will apply, whether exercised by the grantee itself or by a nominee, because the exception in section 100(j) only applies where the seller provided seller disclosure in accordance with section 99 prior to entry into the option.
What are the requirements for an option for a proposed lot (entered into before 1 August 2025) which is exercised after the plan has registered and title issued?
Under section 447 of the Body Corporate and Community Management Act 1997 (inserted by section 271 of the Property Law Act 2023) chapter 5 as in force immediately prior to commencement of the Property Law Act 2023 applies to the sale. Therefore the seller will be required to give disclosure under (now repealed) section 206.
Options in other documents
Similar principles should be applied when assessing options to purchase in leases and other documents.
If the option to purchase, in a lease, was signed before 1 August 2025 and the contract is entered into after 1 August 2025, then seller disclosure does not apply.
For a document containing an option signed after 1 August 2025, whether seller disclosure is required for the resulting contract involves a consideration of section 100(j) of the PLA, discussed above.
If there is an option to purchase in a lease (signed after 1 August 2025) and the tenant has changed due to an assignment, then it is likely that seller disclosure will be required when the option is exercised, that is, before entering into the contract on the exercise of the option.
Does the seller disclosure regime apply to a property bequest in a will?
The seller disclosure scheme does not apply to a contract which gives effect to:
- the transmission of an interest in the lot, because of the death of an owner of the lot, to the owner’s personal representative; or
- the transfer or transmission of an interest in the lot, because of the death of an owner of the lot, to a person under the owner’s will, the rules of intestacy or a court order under the Succession Act 1981, part 4.
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