Last updated 16 August 2016
The necessary transfer documents may be purchased from stationers or obtained from the Department of Natural Resources and Mines. They should also be part of a conveyancing kit.
The documents include a Form 1 Transfer and a Form 24 Property Information (Transfer), both available from the Queensland Government site here. These documents provide information to the local authority and Queensland government departments.
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).
Certificate of title
At completion, the buyer must receive the duplicate certificate of title (if one is in existence) from the seller in exchange for the balance purchase price. A certificate of title will only be issued by the Department of Natural Resources and Mines if the owner of the land applies for a certificate (Land Title Act 1994 (Qld) (Land Title Act)). The Department of Natural Resources and Mines will not, however, issue a certificate of title unless the mortgagee consents. If a certificate of title has been issued, this information will appear on the title search.
The REIQ contract provides that the seller only has an obligation to deliver a certificate of title if one is required to register the transfer to the buyer. In order to protect a buyer from fraud by the seller or other persons where there is no certificate of title, a settlement notice will need to be deposited.
Under the Land Title Act, a buyer of land is entitled to deposit a settlement notice to protect their interest in the land between settlement and lodgement of the transfer. The settlement notice operates to prevent the registration of most instruments (e.g. a mortgage or lease) that affect the interest in the land until the notice lapses or is withdrawn, removed or cancelled.
The settlement 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.
Where there is a certificate of title, another interest cannot be registered unless the title is produced to the Registrar of Titles. In most cases, a settlement notice only needs to be deposited where a certificate of title does not exist, as it is only in this case that another interest could be registered without the consent of the seller or the buyer after settlement.
Time for deposit of a settlement notice
There is no time restriction for the deposit of a settlement notice. However, a settlement notice will only be effective for a maximum of two months after deposit. This means, in order for the settlement notice to provide the maximum protection for the buyer, the notice should be deposited as close to settlement as possible. As the notice will not prohibit the registration of an instrument lodged prior to the settlement 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 settlement 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 the defect in title is not removed.
Lapse, withdrawal, removal and cancellation of a settlement notice
A settlement notice will lapse two months after the date it is deposited, or when all instruments specified in the settlement notice have been lodged at the Department of Natural Resources and Mines, whichever happens first. The settlement notice may be withdrawn at any time during its currency by the depositor of the notice.
The settlement 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 settlement notice.
The advent of 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.