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Notice to Buyers of Contamination Listing

Ensure you're meeting all your legal disclosure obligations when selling your land prior to buyers entering a contract, of listings on environmental registers.

The recent legal case of Albion Mill FCP Pty Ltd & Anor v FKP Commercial Developments Pty Ltd [2018] QCA 229 is a good reminder of the Commercial Law disclosure obligations required to be given by sellers prior to buyers entering a contract, of listings on environmental registers.

Under the environmental protection legislation, owners must give certain information to potential buyers of real estate prior to the buyer entering into the legal contract, including if the land is registered on the Contaminated Land Register or the Environmental Management Register. If they don’t, the buyer will have a right to terminate right up to when they move in or settle. Sellers can fix up their failure to disclose by disclosing once the contract has been signed. However, the buyer can still pull out for the first 21 days after receiving the notice.

Interestingly in the case of Albion Mill FCP Pty Ltd & Anor v FKP Commercial Developments Pty Ltd, the buyer purported to terminate the contract based on the seller’s failure to give disclosure that the land was included on the Environmental Management Register. However, the seller claimed that they had given the written notice by uploading all the documents and details for the environmental listing to an online data room. This online data room contained all the property information which the seller had uploaded for the buyer’s consideration and viewing.

The seller could prove that someone (the buyer or someone acting on behalf of the buyer) had accessed the documents. Therefore, the Court held that the notice had been validly given prior to the buyer entering into the contract.

If you are selling, it is very important that you comply with all your Commercial Law statutory obligations. Otherwise, your buyer may have a ‘get out of jail free card’ after you are counting on them being committed.

Butler McDermott Lawyers Sunshine Coast can help with all your buying and selling needs. Get in touch with our Nambour law firm's commercial lawyers in Sunshine Coast today for a confidential discussion.

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