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What do I have to disclose when selling a house?

By George Hadgelias

The days of buyer beware are fading fast. States are introducing a growing list of regulations mandating what sellers must tell potential buyers – while Australian consumer law also protects purchasers across the country.

Here’s some good general areas to keep in mind when selling, but remember that disclosure regulations vary by state, so you should always get professional legal advice on your personal circumstances.

What do I need to disclose when selling my house?

No matter which state or territory you live in, let’s take a look at some of the key things you have to disclose.

1. Pre-contractual disclosure obligations

Pre-contractual disclosure obligations relate to limitations, restraints or “defects” in the property title.

These are mainly:

  • easements:
  • covenants;
  • leasing;
  • zoning.

Easements

Easements give someone the right to use the land for a specific purpose, even if they’re not the land owner, such as an electrical or water easement for authorities, or a shared driveway.

Covenants

Covenants are an obligation that require a property owner to abide by certain rules. An example could be a requirement that street landscaping or home-front finishes be maintained to an agreed finish and quality.

Leases

Leases are where a property remains under a rental agreement for a continued period after settlement.

Zoning

Zoning disclosure laws vary considerably across states. In Queensland and New South Wales, you must disclose if your property is in a flood zone. Bushfire-prone zones need to be declared in South Australia, New South Wales and Victoria, while graves on your land must be disclosed in Tasmania.

2. Building consent

Made some renovations to your property? You’ll need to provide the necessary documentation to show all works are up-to-date and approved. This also means you’ll have to disclose any building improvements that do not have full approval.

3. Property defects

Most states require a seller to disclose issues such as structural problems, damp, insect infestation or fixtures and appliances that don’t work, even if it’s a common practice for buyers to get building inspection reports before making an offer.

4. Sensitive issues

Some states have imposed stricter requirements around declarations where a property has been the site of a murder, vicious crime or accident, as these may affect buyers’ perceptions of the property and, as a result, its value.

A property previously used for illegal drug manufacturing also needs to be declared in most states, along with proof of the required rehabilitation to minimise any potential health impacts.

Queensland  now has a specific requirement for disclosure of any boundary disputes before a contract is signed.

5. Asbestos

Most states require you to disclose whether you have, could have, or have had, asbestos on the property.

The ACT requires an Asbestos Advice and Acceptance Report, while Victoria recently made disclosure mandatory. And if your state or territory doesn’t have asbestos disclosure requirements yet, it more than likely will soon.

What happens if something isn’t disclosed?

At worst, you risk jail and fines in the tens of thousands, depending on which state or territory the property is in. At best, you could lose your buyer. In between, there are a range of penalties and fines that are just not worth the risk.

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