Until recently, a buyer of residential waterfront property on the Gold Coast was entitled to terminate the contract for the purchase of that property in circumstances where the seller did not comply with section 15(2) of the Gold Coast City Council Local Law No. 17 (Maintenance of Works in Waterway Areas) 2013 (“Local Law No. 17”).
Recent amendments to the Property Law Act 1974 (Qld) (the “PLA”) introduced pursuant to the enactment of the Court and Civil Legislation Amendment Act 2017 (the “CCLA”) have now removed a buyer’s ability to terminate a contract that does not comply with section 15(2) of Local Law No. 17 for contracts entered into after 5 June 2017.
Local Law No. 17
Pursuant to section 15(2)(b) of Local Law No. 17, a contract for the sale of a relevant lot must contain a clause stating or specifying the actual specified prescribed work that is completely or partly situated on, or which is connected to, the relevant lot.
A relevant lot is defined at section 14 of Local Law No. 17 to be a lot:
- on which a specified prescribed work is completely or partly situated; or
- that is waterfront land and which is connected to a specified prescribed work.
A specified prescribed work is defined at section 14 of Local Law No. 17 to mean a prescribed work specified for this part in a subordinate local law.
Pursuant to section 5(b) of the Gold Coast City Council Subordinate Local Law No. 17.1 (Works in Non-Coastal Waterway Areas) 2013, the following is a specified prescribed work:
- a revetment wall;
- a training wall;
- a jetty;
- a pontoon.
A buyer was previously entitled to, pursuant to section 15(3) of Local Law No. 17, terminate a contract that has not already settled where the seller has not complied with section 15(2) of Local Law No. 17.
Based on the above matters, a buyer would be entitled to terminate a contract for the purchase of a waterfront residential property that contained a pontoon for example, if the contract did not contain a special condition that stated that there was a pontoon on that property.
The above circumstances can obviously lead to very harsh results and it is arguable that, in drafting Local Law 17, the legislature could not have intended that a buyer would be entitled to terminate a contract where a contract failed to state the actual specified prescribed work on a property.
Amendment to Property Law Act 1974 (Qld)
As a consequence of a recent amendment to the PLA, from 5 June 2017, a buyer faced with the circumstances detailed in the above paragraphs would be unable to terminate the contract.
Pursuant to section 199 of the CCLA, a new section 57A has been inserted into the PLA. Pursuant to section 57A(1)(b), a statutory instrument, such as Local Law No. 17, does not and cannot give a party to a contract for the sale of land, such as a waterfront residential property on the Gold Coast, a right to terminate the contract for failure by another party to the contract to comply with the statutory instrument.
Whilst buyers will no longer have the right to terminate a contract where a seller has failed to comply with section 15(2) of Local Law No. 17, sellers can still face fines of up to approximately $6,307.50 for any non-compliance.
Marino Law has extensive experience acting for buyers and sellers with respect to the negotiation and preparation of contracts for the sale and purchase of residential and commercial property including residential waterfront properties that contain specified prescribed works such as pontoons and jetties. Marino law also has extensive experience in dealing with disputes between buyers and sellers pursuant to contracts for the sale and purchase of residential and commercial property.
Should you require assistance in any of the above areas, please contact one of our highly experienced lawyers.