The Queensland government has amended legislation to make it mandatory for sellers
of residential property to complete and sign a sustainability declaration from 1 January 2010.
The legislation which was amended is the Building Act 1975 (Qld) and the Property Agents and Motor Dealers
Act 2000 (Qld). These changes will have a significant impact on Act 1975 (Qld) and the Property Agents and
Motor Dealers Act 2000 (Qld). These changes will have a significant impact on the sellers of residential property
in Queensland, and the real estate industry. You are are encouraged to regularly visit www.dip.qld.gov.au
for up-to-date information, fact sheets and the guidelines.
Sustainability Declaration - Frequently Asked Questions
Sustainability Declaration Form
The major impacts for sellers and real estate agents are summarised below:
• It will be mandatory for sellers to complete the statutory sustainability declaration form before their property (any
residential home or unit) is marketed for sale (either through private sale or with an agent). This requirement will apply
to all properties being marketed as at 1 January 2010. This includes new listings from 1 January, plus existing listings
being marketed as at 1 January;
• The seller or agent must not publish a relevant advertisement (defined later in this fact sheet) unless the
advertisement includes information about where a person may obtain a copy of the sustainability declaration. For
example, agents may include in their internet advertising and window card words such as ‘the sustainability declaration
for this property can be obtained by contacting the agent’;
• The seller or agent cannot give a prospective buyer a brochure (or other similar document) marketing or advertising
the sale of the property unless the person has been given either a copy of the current sustainability declaration OR a
copy of the declaration accompanies the document;
• At any time the property is open for inspection (by either the seller or agent) the sustainability declaration must be
conspicuously displayed so prospective buyers entering the property can view the declaration. If the property is an
inspection by appointment (as opposed to an open house), the prospective buyer must either be given a copy of the
declaration prior to entering or the declaration must be conspicuously displayed during the inspection time;
• If a prospective buyer requests a copy of the declaration, the seller or agent must give them a copy as soon as
practicable. This can be supplied electronically;
• If a buyer incurs a loss or expense because the seller provides a false or misleading declaration or the document is
not prepared with reasonable skill and care, the seller may be liable to compensate the buyer for the loss or expense;
• The buyer will have no right to terminate a contract if the declaration is incomplete or contains information that is
false or misleading.
Agents will not be able to publish a relevant advertisement unless the advertisement includes information about where
a person (prospective buyer) can get a copy of the declaration. Publish is defined as “to publish on the internet or cause
to be published” and relevant advertisement is defined as “an advertisement in any form or medium, other than an
advertisement in a newspaper or magazine or a generic for sale signboard”.
If the property is marketed (advertised) on the internet or promoted in any form OTHER THAN magazine or newspaper,
reference must be made in the marketing (advertising) as to how the prospective buyer can obtain a copy of the
declaration. For example; window cards must also refer to how the sustainability declaration can be obtained.
If the property has a specially made for sale sign board (not a general for sale sign), the sign board must include
reference to where a prospective buyer can obtain a copy of the declaration. The requirement of disclosing to
prospective buyers of where a copy of the declaration can be obtained does not extend to other forms of marketing such
as an advertisement published in a newspaper or magazine.
If the property is opened, other than for an open for inspection, as mentioned previously, the agent must ensure that the
prospective buyer has either:
- A copy of the declaration before entering; or
- A copy of the declaration is made available before the person enters and the person is advised that a copy is available for inspection; or
- A copy of the declaration is conspicuously displayed at the dwelling so the person entering can easily read it.
It is strongly recommended that members do not assist the sellers in completing the form. There may be a significant
risk exposure to agents if they assist or complete the form for the seller. Agents are advised to educate sellers of their
obligations at law and that it is not part of an agent’s duty to complete the statutory paperwork on their behalf – agents
are conduits of the information. The agent’s duty is to ensure that the sustainability declaration is completed before the
property is marketed for sale.
Absentee sellers, including investors, may have to engage a suitably qualified third party to complete the declaration
on the seller’s behalf. The Building Act imposes a legislative duty on all sellers of residential houses and units in
Queensland to complete the declaration or to appoint a representative, or third party such as a builder to complete
the form. It is important to note that the Building Act requires the seller to sign the form. The signing of the form
cannot be delegated to a third party, other than a duly authorised person legally, such as through a power of attorney.
If agents assist the sellers in providing a third party to complete the form, agents should ensure that the third party
has public liability insurance, professional indemnity insurance and for risk management, has completed a contractor
appointment form which is available on Realworks.
It is recommended that agents direct sellers to the relevant government department website, and/or download
government fact sheets and include these as part of the listing kit. The government will release sustainability
declaration guidelines, which may prove to be critical in providing further information to sellers. The guidelines will
support the mandatory sustainability declaration form. The two-page sustainability declaration consists of four key
parts; water, access, safety and energy, and includes a household report card. The final version is expected to be
released in December 2009, and can be downloaded from the Department of Infrastructure and Planning website
www.dip.qld.gov.au. The form on the government website must be used from 1 January 2010.
The government in part has said that the declaration is an educational tool to create further awareness about
sustainability and housing. There are substantial penalty units (fines) for agents associated with failure to comply with
the new provisions. The fines are a maximum of 100 penalty units, which equates to $10,000. Sellers may face fines of
up to $2,000 for breaching particular provisions.
The REIQ strongly recommends and encourages all members to visit the department website www.dip.qld.gov.au and
download the fact sheet and guidelines to assist educating sellers in understanding their legislative obligations.
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