Last updated 18 March 2022
The necessary transfer documents include a Form 1 Transfer and a Form 24 Property Information (Transfer), both available from Titles Queensland. These documents provide information to the local authority and Queensland government departments. For a buyer undertaking their own conveyancing, these transfer documents may be purchased from stationers or obtained from Titles Queensand. They should also be part of a conveyancing kit.
If finance is being obtained from a lender to complete the contract, the transfer documents will need to be stamped prior to settlement. If the property being bought will be the buyer’s home or their first home, the buyer may be entitled to a stamp duty concession. To obtain this concession, a buyer will need to sign a particular form under the Duties Act 2001 (Qld) (see Transfer duty below).
Under the Land Title Act 1994 (Qld)(Land Title Act), a buyer of land is entitled to deposit a priority notice to protect their interest in the land between settlement and lodgement of the transfer. The priority notice operates to prevent the registration of most instruments (e.g. a mortgage or lease) that affect the land or an interest in the land until the notice lapses or is withdrawn, removed or cancelled.
The priority notice will not prevent the registration of certain instruments, usually interests registered with the consent of the buyer and other instruments that will not affect the interest of the buyer.
Time for deposit of a priority notice
There is no time restriction for the deposit of a priority notice. However, a priority notice will only be effective for a maximum of 90 days after deposit (or 60 days if an extension request for an additional 30 days is not deposited within 60 days after the priority notice was deposited). This means for the priority notice to provide the maximum protection for the buyer, the notice should be deposited as close to settlement as possible. As the priority notice will not prohibit the registration of an instrument lodged prior to the deposit of the notice, it is important that a search is conducted to ensure that there are no instruments that have been lodged but not yet registered prior to deposit of the priority notice. If an instrument has been lodged, the buyer should make an objection to title if the interest is not disclosed in the contract of sale. The buyer may be able to refuse to complete the contract if a defect in title is not removed.
Lapse, withdrawal, removal and cancellation of a priority notice
A priority notice will lapse on the earliest of the following days being either 90 days after the date it is deposited (if an extension request for the notice has been deposited), 60 days after the notice was deposited or when all related instruments specified in the priority notice have been registered in the order stated in the priority notice. The priority notice may be withdrawn at any time during its currency by depositing a request to withdraw the notice, signed in the appropriate form by or for the person for whom the priority notice was deposited.
The priority notice may be removed by order of the Supreme Court upon the application of an affected person.
The Registrar of Titles, in specified circumstances, may cancel the priority notice.
The advent of priority notices (and, previously, settlement notices) has meant that the use of caveats in the conveyancing process is now less common. A caveat may be lodged by a person who has a caveatable interest in a lot. The caveat system provides protection for equitable and unregistered interests in land such as the interest of a buyer under a valid unconditional contract of sale. Once lodged in respect of a particular parcel of land, a caveat operates to prevent registration of dealings with that parcel, which are inconsistent with or may defeat the interest claimed in the caveat. The caveat also provides notice of the interest claimed when a search is undertaken of the title for the affected parcel of land. The caveat preserves the status quo allowing time, if necessary, for the validity of the interest claimed to be determined by a court. With certain exceptions, a caveat will lapse unless proceedings are started in a court of competent jurisdiction to establish the interest claimed under the caveat and the Registrar of Titles is notified that a proceeding has been started within the time prescribed by s 126 of the Land Title Act.
An application for an order seeking the removal of a caveat may be made to the Supreme Court which may make the order on the terms considered appropriate. After a caveat has been lodged, it is not generally possible for the same caveator to lodge a further caveat on the same, or substantially the same, grounds as that in the original caveat without the leave of a court. A person who lodges a caveat without reasonable cause must compensate anyone who suffers loss or damage as a result. A judgement for compensation may include exemplary damages.