Covenants - Changes in Qld

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Prevention of residential estate covenants that restrict the use of energy efficient design features and fixtures
Legislative amendments will be enacted as soon as practicable to:

• render invalid any new covenants and body corporate provisions which restrict an owner or body corporate from using selected features e.g. owners will be able to select light roof colours, an appropriate minimum floor area for their intended use requirements, locate garages on western side of the house and not be restricted in the locations available for roof-mounted solar hot water systems

• render invalid selected existing covenants and body corporate provisions which restrict an owner or body corporate from installing or effectively operating specific energy efficient features such as roof-mounted solar hot water systems.

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On 1 January, 2010 you will be required to give buyers a Sustainability Declaration prior to showing them the property irrespective of when the property was listed for sale. Following is a brief summary of the rules relating to the Declarations.
Completing the Declaration

The seller is required to complete and sign the Declaration to the best of their ability. It will often mean that the majority of the form will not be completed in any way and simply signed by the seller. It is recommended that sellers attempt to complete the parts they are able to and not simply sign a blank form. It is strongly recommended that agents do not complete the form.

Advertising the Property
1. If you advertise the property in a newspaper or put a generic sign on the property you don’t need to mention the Sustainability Declaration.
2. Any signs, brochures or internet listings need to indicate where a buyer is able to obtain a copy of the Declaration.
3. Before showing a buyer through the house or giving a brochure on the property the buyer must receive a copy of the Declaration. The Declaration must be displayed in a prominent position at open houses.
Failure to comply with the Legislation
Most of the sections of the Act provide for a maximum penalty of 20 penalty units with a penalty unit being $100.00, making a total of $2,000.00. The failure to provide a Declaration or putting incorrect information on a Declaration will not affect the validity of the Contract. If incorrect information is disclosed on the Declaration and the buyer suffers a loss the buyer may sue the seller or anyone else involved in the preparation of the form for the incorrect information.

Pools
The requirements for pool fences has changed and in certain aspects become a lot tougher. For example, doors that open onto the pools will no longer be allowed even if they are self latching.

The important thing for sellers and buyers is that even pools that previously complied with the legislation may no longer comply with the new legislation. Most solicitors will strongly recommend buyers put a special condition in the Contract permitting them to have an inspector enter the property to see if the pool complies with the new fencing laws. This should be kept in mind when listing properties. Existing pool owners have five years to upgrade their pool fences except where the property is sold or rented in which case they must do it immediately.

Building Covenants
The new legislation prevents developers or other parties from putting restrictions into the type of building materials and floor size that may be used when constructing houses in new subdivisions.

Any clause which does the following will automatically be void although the balance of the building covenant may be enforceable:
1. Any restriction on the type of roof materials used.
2. Any restriction on the type of materials used for the external walls of the house and other buildings located on the property.
3. Any restriction on the floor size of the house.
4. Any restriction on the home owner moving into the house before the landscaping has been completed.
These restrictions will invalidate most of the building covenants that were in existence prior to 1 January, 2010. It will still be valid for a developer to insist on the design being approved by them however grounds on which they may refuse approval will be severely limited. We are yet to see how developers will react to the current restrictions.