Conveyancing Searches | What searches do i need when purchasing property? |

CONVEYANCING SEARCHES

The seller has obligations to disclose certain information and notices about the property.  If you have received (or receive at any stage) any documentation or information from the seller, agent or body corporate, you must give this to us as soon as possible.

It is important that we carry out searches to check that the seller has met its disclosure obligations, that warranties in the contract are correct and to obtain the information required to assist in your conveyance.

Some search results may show a right to terminate the contract or claim compensation from the seller.  Other search results may reveal whether the property is potentially adversely affected or whether there are restrictions on your potential to use and enjoy the property.

We conduct two initial searches (title search and plan search) and then carry out further searches during the course of the conveyance.

WHAT SEARCHES SHOULD BE OBTAINED?

We have set out in the  a list of standard searches (below) that we recommend obtaining.  We have also set out some highly recommended searches as well as some optional searches for you to consider.  We strongly recommend that both the standard and highly recommended searches be conducted on every property.

If there are issues regarding the property of particular concern or importance to you or your financier then you should discuss this with us so that we can determine whether additional searches are required.  Please note that the amounts we charge you for searches are the actual fees charged to us by the search providers.

You should note the risks of not undertaking searches shown in the list.  Additional searches may be necessary for an initial review of the Contract having regard to the nature of the property, the special conditions and your proposed use of the property in order to ensure that your rights are protected.

WHEN SHOULD BE CARRY OUT SEARCHES?

We recommend you have us carry out searches as soon as possible so that you are aware of your legal obligations and rights before they possibly expire and are well informed of the condition of the property.

We confirm there are real risks if we delay ordering searches as some search results may not be received in time for you to take advantage of your rights of termination and compensation.  Although there is a risk that the cost of the searches will be wasted if the contract does not proceed, ordering searches early increases the chance that search results will be received in sufficient time to reveal any problems and allow you time to exercise any rights you may have.

There are some searches we recommend be conducted twice, both at the beginning of the transaction and before settlement (e.g., title search and QCAT registry search).  This is to check that the seller continues to comply with its ongoing obligations.  Please see the Buyer Searches List for further details.

WHAT IF THERE ARE ISSUES WITH THE SEARCH RESULTS?

We will contact you and let you know if any search results reveal any issues and will give you advice on your rights under the contract and any options you may have.

Please note that you may not be able to terminate the contract in all cases.  For example, often discoveries of unapproved structures, flood levels, noise corridors or restrictions or limits on the use of waterfront or beachfront property may not give you a right of termination or a right of compensation from the seller.  We have noted those searches in the Buyer Searches List which do not necessarily give rise to termination or compensation rights under the contract.

You may decide that you do not wish to exercise rights that we might advise on arising from search results. In making that decision you should consider the impact these search results may have on any later attempt to sell the property including the risk that some issues ought to be disclosed prior to any sale contract and the risk that, if not disclosed, a later buyer may discover these issues and choose to exercise rights against you (including termination or compensation). Please let us know if you would like further advice on this matter.

Standard searches – All conveyances

Search Rights Suggested

timing

Title Investigations

Current title search

Termination – (if material defect).

Compensation – (if material or immaterial defect and buyer gives notice prior to settling).

Termination or damages – (if warranties inaccurate) including that the seller must be the registered owner at the time of settlement.

 

Now + settlement date

Registered plan Now
Registered encumbrances, interests and administrative advices (i.e. easements, caveats etc).

 

Now
Land Tax

Whether there are any outstanding amounts payable for land tax (which may become payable by the buyer).

Arrears of Land Tax are a defect in title which allows termination if not paid at settlement. Note that the commissioner may issue a notice requiring a buyer to pay part of the purchase price equal to the unpaid land tax directly to the commissioner. Contract signed
COUNCIL RATES/WATER SEARCH

Outstanding infrastructure charges will not generally be shown in a rates search. For details of outstanding infrastructure charges, a planning and development certificate must be obtained.

A rates search may show outstanding notices issued and required to be disclosed under Local Law 17.

Full Rates Search:

Full Rates search usually includes levy information, land and property details, services plan, flood map, coastal hazard report, planning and development requestions.

 

Allows for adjustment in accordance with the contract


Gold Coast City Council Local Law 17
(Maintenance of Works in Waterway Areas).  If the property is in the Gold Coast City Council local government area, disclosure obligations, termination rights and/or ongoing maintenance obligations may apply.

Contract signed
Special water meter reading Allows for adjustment in accordance with the contract (particularly prevents liability for large water costs if leak has occurred or other high usage) Contract signed
(takes 14 days)
QCAT Tree Register and minor civil dispute searches

Details of applications and orders in relation to trees and fences on the property under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Termination prior to settlement under statute if seller doesn’t give a copy of any tree application or order prior to contract.

Termination under contract may also be possible

Now and preferably also a second search just prior to settlement
Personal Property
Securities Register
Details of any personal property affected by a registered security interest – important as assets you may be buying could be repossessed
Seller contractually sells the Property (Land, improvement and chattels) free from encumbrances. If a security interest is not released at settlement by delivery of a Release and Undertaking to Amend the register then it may entitle termination. Now +
settlement date
Australian Securities and Investment Commission
(if corporate seller or buyer)
Termination under contract if a breach of a warranty
Company search

Company search: Details of seller corporation including directors, ABN

Now + settlement date
Settlement Notice Once Contract is unconditional
If, purchasing a Unit:    
Form 13 Information Certificate

(particularly advisable if instructions are not to undertake a body corporate records search, which is more extensive and advisable)

Levy information, by-laws, lot entitlements, insurances

Termination under contract for breach
of warranty.Termination Rights:

·  for inaccuracy in Disclosure Statement

·  for breach of implied warranty

Note: Time limits apply to the exercise
of these rights.Contract signed

 

Optional searches – Highly Recommended

Search Rights Suggested

timing

Environmental Protection Agency

Determine if land is on the Environmental Management Register or Contaminated Land Register.*

*Note: This search does not provide all the information under the Environmental Protection Act 1994 that could potentially give rise to a statutory right of termination.

Termination or compensation under contract if seller fails to disclose notifiable activity or other circumstances that may lead to classification as contaminated. Termination must be exercised at least 2 business days prior to settlement.  Claim for compensation must be made prior to settlement. Now
Qld Transport and Main Roads

Current proposals, resumption information for roads, ports and rail.

(Queensland Transport will not provide information on proposals for resumptions not currently approved)

Termination under contract if a current proposal in relation to ‘transport infrastructure’ that affects the land

Must exercise right at least 2 business days prior to settlement.

Contract signed
●  Building approval search

Details of building approvals and inspections

No contractual termination rights for lack of building approvals. Now

 

●  Heritage search

Whether property listed on heritage register or any heritage agreements in existence

Contractual termination right if listed on register or is affected by Qld Heritage Act

Must exercise right at least 2 business days prior to settlement

Contract signed
If, purchasing a Unit:    
Body Corporate Records Search

Only if the property is subject to the Building Units and Group Titles Act 1980 or the Body Corporate and Community Management Act 1997.

A review of body corporate records to identify issues not covered by Form 13 Certificate including by-laws, lot entitlement, insurances, details of management and letting agreement, referee’s orders, special levies.

Termination under contract for breach
of warranty and if materially prejudiced.Termination rights:

·  for inaccuracy in Disclosure Statement

·  for breach of implied warranty

Note: Time limits apply to the exercise
of these rights.Contract signed

 

Buyer/seller arranged searches – strongly advised to obtain

Search / Enquiry Buyers risk/concern Suggested timing
Pest inspection/building inspection

Only of benefit after contract if standard
or special condition in contract. Information concerning the condition of the property.

Termination under contract only if a reasonable buyer would consider the
report unsatisfactory
Contract signed
Survey

Identify the boundaries of the land, the area and location of improvements.

Termination under contract if material defect

Compensation under contract if buyer completes and defect material or immaterial. Claim for compensation must be notified
prior to settlement.

Contract signed

 

Optional searches

Buyers risk/concern Rights Suggested timing
●  Town planning search
(limited)(only standard recommendation if not in a Community Titles Scheme)Town planning information (zoning, use, future use), summary of the provisions of planning scheme and regulatory provisions applying, any designations applying to the premises.May show if the property cannot be used as intended.
See above Contract signed
●  Sewerage and drainage plans

Position of sewerage and drainage pipes.  May show if parts of the property cannot be used as intended.

See above Contract signed
●  Building Notices Search
(Property Notices Search in BCC)Information about show cause and enforcement notices
Termination under contract prior to settlement if a notice has issued prior to the Contract Date. Contract signed
Energex/Ergon

·  If the property is connected under normal tariff conditions;

·  if the property is connected under guarantee conditions and the amount of the guarantee;

·  if the property is not connected
upon what conditions it may be connected;

·  whether there are any underground cables running through the property.

Termination under contract if there is an undisclosed easement over cables that is material. Compensation is also possible for an undisclosed easement over cables that is material (where the buyer doesn’t terminate) or immaterial but must be claimed prior to settlement of the contract.

No contractual termination rights if the easement is a proposed easement.

Contract signed
(takes 14 Business Days)
Telco search

Major telecommunication network cables (including Optic Fibre) belonging to Telstra, Optus, UEComm, AAPT and PowerTel and other providers that pass through the property and information on communications network that may impact on the property.

No contractual termination rights. Now
Mining and other
geothermal tenures
Details of mining, petroleum, gas storage or geothermal tenures grantedNote: access agreements with holders
of mining, petroleum, gas and other geothermal tenures on the land or on adjoining property are binding on successors in title.  These agreements
will not appear on the register and inquiries should be made of the seller
No contractual termination rights (unless an access agreement). Contract signed
Transport Noise Corridor Search

If the property is in a noise corridor, the Queensland Development Code requires buildings to achieve certain levels of noise mitigation through the use of appropriate materials for the floor, walls, roof, windows and doors where they are located in the corridor.

No contractual termination rights if the property is in a noise corridor.

 

Now

(A search should be undertaken early in the conveyance so that a buyer can exercise other termination rights if necessary.)

 

Computer Inventory of Survey
Plans search (Radial search)
(available from Department of Natural Resources and Mines or its distributors)May point to previous surveys which can then be obtained
Termination under contract if material defect

Compensation if buyer completes and defect material or immaterial. Claim for compensation must be notified prior to settlement.

 

Contract signed
Queensland Building and Construction Commission

Details of insurance cover for the property

No contractual termination rights.

 

Contract signed
Vegetation Management (State)
(Search in Department of Natural Resources and Mines)Details of·  Vegetation Clearing Applications

·  Regrowth Vegetation Notification

·  Vegetation offsets

No contractual termination rights. Contract signed
●  Town planning (standard)

As per limited town planning advice above, however additional information obtained will generally only be relevant for future development or checking compliance of existing development

Per limited search (see above) plus copy of decision notices for current and declined development approvals, copy of infrastructure agreements and charges details

Contract signed
(takes 12 Business Days)
●  Town planning (full)

As per standard town planning advice above, however Council will be bound by the information provided in the certificate which can provide additional protection if you are considering future development

Per standard search (see above) plus statement re fulfilment or non-fulfilment of any current development conditions, details of infrastructure agreements, advice of prosecutions for development offences

Contract signed (takes 30 Business Days)
●  Health Department search

Whether the property is registered with the Health Department and any contraventions

No contractual termination rights. Contract signed
●  Heritage search

Whether property listed on heritage register or any heritage agreements in existence

Contractual termination right if listed on register or is affected by Qld Heritage Act

Must exercise right at least 2 business
days prior to settlement

Contract signed
●  Online Planning and Development System search (availability depends on Local Government area)

Some Local Governments provide free online searches that provide some, but not necessarily all, Development Application materials and decisions. The information may not be complete and is not warranted by Council.

The information shows applications (whether approved or not) and approvals and may include development conditions that run with the land (i.e. bushfire management plans and other ongoing conditions
of approval).

No contractual termination rights. Contract signed
●  Flood search

(Brisbane City Council has online
flood search and Sate Government Flood Checker has historical data)

Whether the property has flooded
and the level of the last flood

No contractual termination rights. Now
●  Vegetation Protection Orders

Details of whether vegetation on the property is protected vegetation or subject to an order

(Brisbane this is under Natural Assets Local Law)

No contractual termination rights. Contract signed
Powerlink

Information concerning the Authority’s future interest in the property, easements and transmission lines

Termination under contract if an undisclosed easement over cables that is material.

Compensation (no election to terminate)
if an undisclosed easement over cables that is material or immaterial. Must be claimed prior to completion

No right if the easement is a proposed easement.

Contract signed
Coastal Protection (Sanctions on construction of jetties)

·  the date of any sanction issued

·  nature of the works sanctioned.

No contractual termination rights. Contract signed
Coastal management search

Whether the land is within a coastal management control district or an erosion-prone area and therefore the provisions of the Coastal Protection and Management Act 1995 applies

 

No contractual termination rights.

Right to terminate under Coastal Protection and Management Act 1995, – requires notice at least 14 days prior to settlement of an undischarged coastal protection notice under s 59 or an undischarged tidal works notice under s 60.

Contract signed
World heritage list

Whether property listed on the
heritage list.

Termination if on World Heritage List
or affected by Qld Heritage Act.Must exercise right at least 2 business
days prior to settlement
Now
National heritage listing

Information on indigenous, natural and historic sites on the register

Termination if on World Heritage List
or affected by Qld Heritage Act.Must exercise right at least 2 business
days prior to settlement 
Contract signed
Queensland Heritage Register search

Whether property is listed on heritage register or any heritage agreements in existence

 

Termination under contract if affected by Queensland Heritage Act. Must exercise right at least 2 business days prior to settlement Contract signed
ATSI Cultural Heritage Register
and Database
(DNRM)Whether property listed on heritage register or any heritage agreements
in existence
No contractual termination rights. Contract signed

Optional searches – UNITS ONLY

Title Investigations

Community management statement

Real property description, title reference, encumbrances, registered leases, location of land, caveats, lot entitlement, by-laws, details of progressive development of the scheme, administrative advices.

Termination under contract –
(if material defect).

Compensation – if material or immaterial defect and buyer gives notice prior to settling).

Termination or damages under contract –
(if warranties inaccurate) including that the seller must be the registered owner at the
time of settlement.

A right of termination if reveals an undisclosed body corporate asset (such
as a lease).

Contract signed
Building management statement   Contract signed
Local government Enquiries

Certificate of Classification

Whether the classification of the building allows you to use the premises for your intended use (for example, if purchasing for permanent residence as opposed to temporary letting, that this use is allowed under the certificate of classification).

Termination under contract if there is no certificate of classification issued at settlement (where a certificate is required) for a failure to give vacant possession. Now
Body Corporate Orders (Form 3 BCCM) from Body Corporate Commissioner

Details of Orders made against a particular community title scheme

Termination under contract if an order requires work to be done or money spent on the lot or common property

Compensation under contract only if the order was issued prior to contract:

Contract signed
Qld Fire and Rescue Search

(This only applies to commercial buildings and units)

Whether a fire safety report has been issued for the property, whether the property complies.

No contractual termination rights.

 

 Contract signed