There are several factors to be aware of when developing property in order to do so successfully. It will require sufficient research, planning and securing the right property. Property development involves various complex laws and regulations. Therefore, it is inherent that property developers understand and adhere to the laws in this area.
It is recommended that property developers seek accounting and legal advice prior to entering into a contract for the acquisition of a property for development purposes. The way you hold the property and how the transaction is structured can cause large taxation and legal consequences. Choosing the right structure at the beginning will decrease the risk from a taxation and legal perspective and may even save you money.
When looking to purchase the right property to develop on you must ensure you undertake due diligence to check the property is sound and has no issues. You cannot just rely on what the seller or agent advises is correct as there may be problems with the property that they are unaware of. An example of this could be contaminated soil which may result in the property development being uninhabitable under the law. You should never rely on an existing development application without thoroughly checking the terms of it. Your plans for the development may require changes to the existing development application and further applications which could be denied. Accordingly, relying on an existing development application could end up a costly process for you.
Off the Plan and Disclosure Statement
If you decide to sell an apartment before it is built (known as “off the plan”) there are laws which are predominantly included in the Body Corporate and Community Management Act 1997 (Qld) (Act) to outline your obligations to potential buyers. Majority of these obligations must be included in a disclosure statement which details to the buyer all the relevant facts regarding the property. By not adhering to the Act may allow the buyer to terminate the contract at any time up until settlement. The disclosure statement must include the following:
- Identification of the proposed lot and disclosure plan including the proposed lot number, total area and orientation of it;
- Annual body corporate levies estimated for each proposed lot which will generally be determined by the strata manager;
- Proposed community management statement including by-laws (these may be in relation to things such as the keeping of pets, what you can do in communal areas, etc.) which is usually drafted by your lawyer with the assistance of your strata manager;
- Outline that the disclosure plan was completed by a cadastral surveyor; and
- Body corporate management, caretaking and letting agreements.
Should the information in the disclosure statement become inaccurate then you must provide the buyers with a further statement at least 21 days before the contract is settled in accordance with the Land Sales Act 1984 (Qld). The further statement must amend any inaccuracies in the disclosure statement and if changes are made to the disclosure plan they must be checked and approved by the cadastral surveyor. If the amendments to the disclosure statement materially prejudice the buyer then they may terminate the contract within 21 days of having the further statement issued and have their deposit refunded.
Subdividing and registering land as a community title scheme will create a body corporate. All owners in the community title scheme will become members of the body corporate. As a property developer you will need to ensure your first community management statement (which can be drafted by your lawyer) is registered with the titles office immediately after construction is complete to set up the body corporate.
The body corporate will require a manager to undertake the caretaking and letting services (if applicable) for the community title scheme. If the property development is of a large scale then the body corporate manager may reside on site. As the developer you will need to ensure you arrange for the body corporate to enter into the required caretaking and letting agreements including office and storage areas (if applicable) while you still retain voting control i.e. before settlement of the other lots.
There is a lot to consider when developing a property so you need to be aware of all that is required to ensure your risks are minimised.
If you have any questions about the laws and process regarding property development in Queensland and you would like to discuss your requirements in relation to it, please contact our office on (07) 3876 5111 for an obligation free consultation.
Kayleigh Whittaker, Senior Lawyer
About the author
Kayleigh Whittaker is a senior lawyer on our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.