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Some months back we wrote about “Keeping Your Cool” and how Western Australia was out of step with other states and territories in not having a cooling off period. In a similar vein we have another truth bomb to drop about WA…… and that is…… we just don’t like to disclose, especially when it comes to selling a property.

It’s not that we are emotionally backward, modest, insular or overly secretive. Disclosing facts about a property that may otherwise provide the potential buyer with the information necessary to make an informed decision isn’t very high on our to-do-list here in WA.

Remember that article we wrote called “Caveat Emptor Rem Ova Sugitwhich loosely translates to “this whole buyer beware thing really sucks eggs”? Well Caveat Emptor is alive and kicking in WA!

Ok, under the Australian Consumer Law (ACL), both the sellers and the real estate agents are legally obligated to disclose known information or material facts that would assist a buyer make an informed property purchasing decision. And we all know it’s an offence to mislead or deceive parties to a contract, trouble is, if the real-estate agent doesn’t make the enquiries and the owner doesn’t know, or they can’t recall or they simply won’t tell, then we have a situation that leaves the buyer blissfully unawares.

Assisting in the lack of disclosure is a myriad of interest and notifications that are not noted on the certificate of Title and are not easily searchable or required to be presented along with the contract so that the buyer may avail themselves of the information before signing.

It is also about timing here in WA. See the trouble is, what little information we can request or access is usually disclosed after the seller has signed the contract, and because we don’t have a cooling off period the information we can search post signing is as useless as a concrete parachute, a wooden frying pan or a knitted condom. The latter probably being the most apt because it’s generally a few months into your new purchase that you find out you got more than you bargained for!

So which Australian state or territory is the best at disclosure?

Arguably it would have to be the ACT given the documents presented with the contract at signing. Not too far off are NSW and VIC who have a variety of interesting disclosure requirements.

Which state or territory lags behind?

Well it’s not WA (yay!) that honour of keeping a secret goes to NT and TAS who have no solid specific jurisdictional laws on disclosure.

QLD and WA appear to be slightly better than NT & TAS but only marginally. That leaves SA who exist in a seemingly happy state of mediocrity. We like to think of them as the Jan Brady state of disclosures.

NSW appears to be fixated with flora and fauna in particular the ecology of their surrounds with  disclosure information that explores flooding, coastal protection, subsidence, bushfire prone areas and bio banking  just to name a few.

In Victoria it’s a lesson in history with the requirement to disclose whether a violent crime or death has occurred at the property or if illegal drug activity has taken place.

Where is the best disclosure?

It’s hard to single out the best country but the United Kingdom (UK) comes close where disclosure appears to be centred on ensuring the buyer’s future enjoyment with Kinleigh Folkard and Hayward noting examples such as:

  • The reasons why previous sales have fallen through
  • Any problems highlighted in previous surveys, i.e. subsidence
  • Any pending, approved or declined applications for planning permission
  • Any proposals for nearby development and construction
  • Whether the property lies beneath a flightpath
  • Whether the property is within sight of a motorway
  • Whether a power plant or substation is nearby
  • Any known structural issues with the property
  • Any public right of ways passing through the grounds
  • Any ongoing problems with neighbours, including boundary disputes
  • Any neighbours known to have been served an Anti Social Behaviour Order (ASBO)
  • Whether there have been any known burglaries in the neighbourhood recently
  • Whether any murders or suicides have knowingly been committed in the property recently
  • Any outstanding debts associated with the property, such as Green Deal loans (see below)
  • Any known pests in the property, or bats nesting in the eaves
  • Any known issues with problem weeds, such as Japanese Knotweed

In an article appearing online in the UK Conveyancer Today by Martin Parrin (Nov 25, 2019) titled: Seller Questionnaire Dispute Results In Court Battle” the importance of honest relevant disclosure is explored. The article goes on to explain that the “detail needed in the sellers’ questionnaire has been thrown into the spotlight this week as a couple in Oxfordshire pulled out of a sale, despite already making a £108,000 deposit, because the property information they were given omitted crucial details”.

In the article Martin poses the questions “How much detail is a seller legal obligated to provide? Should issues arising outside the property, become the due diligence of the buyer or should they always rest with the owner?”

What is the future of disclosure in WA?

As is the case in the UK there will always be questions about how much disclosure is enough.

Could WA benefit from a seller’s disclosure check list?

Is the UK example a little too much unnecessary disclosure?

Would WA be creating a veritable “lawyer’s picnic” if we required more disclosures?

Here’s some disclosure ideas that have previously been floated in WA:

  1. Has anyone ever died on the property?

Despite the inaccuracy and limited access to records, disclosure of deaths starts to become a little problematic when you consider a property can be subdivided and the former home demolished and new premises built. And let’s not forget death can be both violent and peaceful. I mean people get old and die right? Just because Grandpa Joe died in bed doesn’t mean he left some bad Juju behind.

  1. How close is the nearest state social housing property?

Equal parts snobbery and aporophobia, the idea of highlighting social housing premises is a stigma we as a society (and profession) would all be a lot poorer for if we succumb to endorsing this form of disclosure!

  1. How energy efficient is the property (also known as star rating)?

In recent years star ratings have been used in the marketing of the construction phase for new builds, but little is known to what extent the property’s star rating changes during occupancy and subsequent changes to fittings and fixtures. Could we see a disclosure emerge on the bona fides of a star rating claim?

Fun Fact: Legislation introduced in Queensland on January 1 2010 requires all residential dwellings to have a sustainability declaration before they can be listed. The document must be completed by the seller, or they can appoint a third party (other than the listing agent) to complete the form.  The document informs potential buyers of the property’s energy and water sustainability features such as insulated roof/walls, rainwater tank, ceiling fans etc.

  1. Has this property been used as a clandestine drug lab?

In extreme circumstances the Environment Protection Authority (EPA WA) has the ability to lodge a Memorial on the Certificate of Title to serve as a warning of a contaminated site. Other than in extreme cases the only option to find out more is to ask the local constabulary what they know.

  1. Is this property haunted?

Who ya gonna call?

Despite the lack of disclosure requirements there is one sure fire solution to your disclosure woes in WA and that is to locate the local “curtain twitcher” and invite yourself over for a cup of coffee. Mavis, who has lived on the street for over 55 years, brought up 5 children, 12 grandchildren and buried her husband (hopefully not in the backyard) is probably far better than any disclosure statement you are ever likely to read.