Just 5% of applications favour landlords one year into WA’s rental reforms

👓 1.8 minute read

Although it’s already more than a year since rental reforms introduced new protections for renters, is your property management team fully complying with the changed rules?

Since July 2024, four major changes have come into force:

Rent bidding is banned
Tenants are allowed to keep pets and make minor modifications to the home in most cases
Rent increases are limited to once a year
The Commissioner for Consumer Protection can decide disputes over a request to have pet or make small changes at a rental home
A landlord is only allowed to refuse a pet or a small change to the home for very specific reasons i.e., a request to have a dog could be refused if it would break a strata by-law to keep one. A minor change to a property that would disturb asbestos can also be refused.
If a landlord wants to refuse your request for a pet or minor modification, the landlord may have to apply to the Commissioner for Consumer Protection to make a decision.

So far, the new laws in practice seem to favour tenants. Less than five per cent of applications have been decided in favour of a landlord.

From time to time some of the Commissioner’s decisions are published on the Consumer Protection website. We took a look and found:

Landlord claims of unacceptable risk to health and safety are mostly rejected
Landlord applications to decline dogs for likely damage exceeding bond are mostly rejected
One cat and one dog does not exceed a ‘reasonable number of pets’
Landlord request to decline small dog due to their asthma declined but tenant required to remove pet during routine inspections
Landlord request to decline cat because ‘tenants agreed to rent knowing pets weren’t allowed’ declined
Tenant request to keep large dog at property declined after landlord objected to damage already done by the dog was shown to already exceed bond amount
Tenant applied for 8 picture hooks but landlord request for entire wall be repainted after their removal was rejected
Tenant applied for 10 picture hooks. Landlord wanted hooks installed by professional to be limited to four. All conditions refused.

Risk mitigation strategies with QLD Seller Disclosure Statements

👓 5.8 minute read

First National Real Estate's Alliance Partner for professional indemnity insurance, Marsh, has provided the below legal advice concerning QLD Seller Disclosure Statements in cooperation with Woodina Underwriting's legal counsel - Martello Law.

In summary:

The new QLD legislation provides that the seller disclosure form is to be signed by the seller
There is no agent obligation to prepare the seller disclosure statement, but agents may be authorised to do so by a seller
If the seller prepares the statement with no input from the agent, legal liability is lessened
There will be greater risks for agents who review, verify or prepare seller disclosure statements on behalf of sellers

Woodina Underwriting Advice: Real estate agent’s obligations Under the Property Law Act 2023 (QLD) a seller under a contract for the sale of a lot is required to give a seller disclosure statement and prescribed certificates to a buyer prior to the buyer signing a contract. Section 99(2)(d) of the new legislation provides that the seller disclosure form is to be signed by the seller. However, section 97 provides that anything required or permitted to be done by a seller may be done personally or by an authorised agent.

- As such, it would appear that although there is no express obligation on an agent to prepare the seller disclosure statement for the seller, agents may be authorised to do so by a seller.

With the new legislation now taking effect, sellers may choose to personally prepare their seller disclosure statements as a cost-saving measure, instead of engaging a conveyancer to do so. If the seller disclosure statement is prepared and signed by the seller with no input from the agent, it is highly unlikely the agent would face liability exposure if the seller the statement is ultimately incorrect/deficient. The agent in such a situation would be a “mere conduit” (i.e. an intermediary that transmits information without adopting or endorsing it) if it did not prepare and/or verify the statement and simply passed the statement onto the buyer. There will, however, undoubtedly be greater risks for agents who review, verify and/or prepare seller disclosure statements on behalf of sellers.

Potential claim scenarios

Examples of where seller disclosure statements may be prepared deficiently and/or incorrectly (either by the seller or agent) are listed below:

the seller disclosure statement is not provided to the purchaser at all or is provided without the seller’s / agent’s signature;
a prescribed certificate (i.e. title search, plan of survey, body corporate certificate, pool compliance certificate) is not given to the buyer prior to signing the contract;
information in the seller disclosure statement or a prescribed certificate is inaccurate, at the time it is given (i.e. failing to update the form if material facts change, such as new encumbrances registered after preparation);
the seller disclosure statement is not substantially complete because relevant information is missing;
there is no proof of delivery (i.e. if you can’t show exactly when and how buyers received the Form 2 and supporting documents, you risk non-compliance); and
incorrectly assuming exemptions to seller disclosure regime, such as for off-the-plan sales or mortgagee-in-possession sales, without verifying. Exemptions are narrowly defined and may require legal advice.

Potential consequences of non-compliance

A failure to comply with all requirements of the seller disclosure statement may allow a buyer to terminate the contract at any time prior to settlement under section 104 of the new legislation. The right of termination will still apply where the seller and/or agent was not aware of the inaccuracy (e.g. where a certificate prepared by a third party such as a body corporate is inaccurate) (see section 106 of the new legislation). That being said, the seller and/or agent in such a situation could not be held responsible for a mistake made by a third party.

If a buyer elects to terminate a contract as a result of a deficient/incorrect seller disclosure statement prepared by an agent, the seller may seek to recover any losses it incurred as a result of termination. This may include any costs thrown away (i.e. marketing fees, fees for prescribed certificate searches). We may also see legal claims by sellers against their agents if the termination of a contract results in the ultimate sale price of the property being lower than what had been agreed to with a previous buyer who exercised their termination rights due to a deficient/incorrect disclosure statement (i.e. sold the property for $20,000 less to the next buyer).

There is also the risk of claims being brought by a buyer against the seller and/or agent following property settlement relating to inadequate disclosure in the seller disclosure statement. For example, an agent who prepares the seller disclosure statement for a seller does not identify an encumbrance or the correct zoning status of a property which has adversely affected the buyer’s intended use for the property and caused losses. A buyer may then seek damages against the agent and/or seller to recover the losses caused by the undisclosed fact. In this sort of situation, the agent, as the “original author” of the disclosure statement, would face a greater liability exposure than the seller who engaged the agent to prepare the statement on their behalf.

Risk mitigation strategies

Noting the inherent risks involved for agents who are preparing seller disclosure statements for sellers, we would only recommend that agents taken on this additional responsibility if they are prepared to ensure appropriate safeguards are in place when preparing these statements. The following measures can be taken by the agents to mitigate the risks of incorrect and/or deficient statements being prepared:

ensuring there is a method in which the Form 2 is delivered safely and securely to the buyer (i.e. ensuring a full audit trail); having comprehensive checklists in place with respect to the information and certificates which need to be provided to buyers, and ensuring that all of the relevant information and certificates have been provided and are up to date;

providing a copy of the draft disclosure statement to sellers for review prior to providing it to the buyer. This would also include obtaining the seller’s written confirmation that the statement has been reviewed and is correct to their knowledge; and

obtaining complete and written instructions from a seller to ensure that the correct information is being inserted into the seller disclosure statement.

We note that the Real Estate of Queensland (REIQ) has various helpful resources for agents to assist them in ensuring they are meeting client obligations when preparing seller disclosure statements.

First National's Workplace Health & Safety programme – People First at First National

👓 30 second read

Every two weeks we’re sending your team a bite-sized eLearning module that includes an editable policy. Just review, sign, and file it at your office. We’ll remind you which training to complete and the matching policy to review.

Adrian, from our Workplace Health and Safety platform explains what you need to do. Nominate a member of your team to be your Learning Influencer. They will:

Confirm every staff member has an individual FN Central login
Schedule each 10-minute module (over the next six months)
Click here to find out how you assign a learning Influencer on FN Central

Module 6: Sexual Harassment Prevention & Awareness

👓 0.2 minute read

First National’s Sexual Harassment Prevention & Awareness Guide is designed to assure your business meets heightened Respect At Work amendments

▶ 10 Min Module: Sexual Harassment Prevention & Awareness Module

▶ Download & Sign the Policy: Editable PDF