The principle of caveat emptor (buyer beware) originates in historical contract law and applies to the sale of property. This means that purchasers are responsible for checking the quality of the property and details of title prior to entering into a contract of sale. However, most jurisdictions have legislation that requires vendors to disclose certain information deemed relevant. The type of information differs from jurisdiction to jurisdiction.
In New South Wales, Victoria and South Australia, title, planning, government charges and insurance information must be disclosed to a prospective purchaser. In New South Wales and Victoria this must happen before entering into a contract of sale. In South Australia, although it is common practice to provide this at the time of providing the contract, disclosures must be made at least 10 days before settlement.
In New South Wales a vendor is required to provide the purchaser with statutory warranties. If the vendor’s warranty is inaccurate, and the purchaser has shown reliance on the disclosed information, the purchaser is entitled to rescind within 14 days. The Northern Territory, Queensland and Tasmania each has legislation relating to the vendor’s common law duty to provide clear title. Western Australia vendors must only provide notice to purchasers of any mortgage, encumbrance, lien or charge burdening the land.
It is important to ensure that the vendor’s statements are accurate and that they reflect the true position of the vendor’s title and interest in the property. Contracts are voidable if information is inaccurate. Apart from the various legislative requirements that operate in each jurisdiction, sellers generally only have an obligation to disclose latent defects in title. A latent defect is a defect that cannot be discovered by a reasonable inspection of the property and title.
Appendix 1, Table 1, State and Territory legislation relating to disclosure.
|Refer to the jurisdiction in your state and outline five items a vendor must disclose to a purchaser.