Understanding Instalment Contracts in Queensland Property Transactions
In the dynamic landscape of Queensland property, certainty and clarity are paramount. While most residential property contracts proceed smoothly from signing to settlement, there lies a subtle legal nuance that can dramatically alter the rights and obligations of both buyers and sellers: the instalment contract. Often unintentionally created, instalment contracts grant buyers several statutory protections in the case of a buyer’s default which restrict a seller’s right to deal with the contract.
What is an Instalment Contract?
Under section 71 of the Property Law Act 1974 (Qld), an instalment contract is broadly defined as an executory contract for the sale of land where the purchaser is bound to make one or more payments (other than a deposit) without becoming entitled to receive a conveyance (transfer of title) in exchange for those payments. In essence, it's a contract where the buyer makes payments to the seller which do not form part of the deposit over time before the property formally changes hands at settlement.
The 10% Threshold and Beyond: A Critical Trigger
The term "deposit" itself has a specific meaning under within the Property Law Act. The Act provides that a deposit cannot not exceed 10% of the purchase price (or 20% for off-the-plan sales). Where the deposit exceeds the prescribed percentage of the purchase price, the contract will be deemed to be an instalment contract, regardless of the intentions of the parties. A contract may also fall within the meaning of an instalment contract in the following circumstances:
1. Additional Pre-Settlement Payments: Payments such as license fees, early possession fees, or any other amounts paid by the buyer to the seller before settlement, and separate from the deposit, can inadvertently trigger an instalment contract. Even a seemingly small, non-deposit payment can convert a standard contract into an instalment contract.
2. Non-Refundable Deposits: While less common in standard contracts, if a deposit is structured to be non-refundable, particularly if released to the seller, it can be re-characterised as an instalment, thereby triggering the Act's provisions.
The Unexpected Consequences: Why Sellers Must Beware
For sellers, the inadvertent creation of an instalment contract introduces a suite of statutory protections for the buyer. It is important to be aware of these protections as they restrict how a seller may deal with a buyer’s default of the contract. These protections include:
- Restricted Termination Rights (Section 72 PLA): Unlike standard contracts, a seller cannot immediately terminate for a buyer's default under an instalment contract. The seller must provide the buyer with at least 30 days' written notice to remedy the breach before the seller may exercise a right of termination. The inability to immediately terminate an instalment contract will often have lasting delays from a seller who may be unable to enter into a subsequent contract even where it is abundantly clear the buyer will be unable to complete the contract.
- Buyer's Right to Lodge a Caveat (Section 74 PLA): Under an instalment contract, the buyer gains an express statutory right to lodge a non-lapsing caveat over the property. This caveat prevents the registration of any other instrument affecting the title of the property until it is removed, potentially complicating any dealings with the land.
- Buyer's Right to Demand Conveyance (Section 75 PLA): Perhaps most impactful, if the buyer has paid one-third or more of the purchase price (and is not in default), the buyer can demand by written notice that the seller transfer the legal title to them immediately. It is however a condition of the transfer that the seller be permitted to execute a mortgage over the property in favour of the seller for the remaining balance of the purchase price. This transforms the seller into a mortgagee and imputes the seller with all the associated risks and responsibilities as mortgagee of the property.
- Deposit of Title Deeds (Section 76 PLA): A purchaser can also require the vendor to deposit a duly executed transfer document with a prescribed authority (such as a solicitor) to be held in trust until the time for performance of the contract arrives, the contract is discharged by performance or otherwise, or upon an order of the court.
Protecting Your Position
The statutory protections imposed for the benefit of a buyer under instalment contract can be significant for sellers, and may impact a seller’s financial liquidity, control over their property, and ability to enter into subsequent contracts following a buyer’s default. Unfortunately, it is often the case that instalment contracts are inadvertently entered into, and the statutory protections are enlivened without the knowledge or intent of either the buyer or seller.
To avoid creating an instalment contract, particular care must be taken with:
- Ensuring a deposit and any associated payments do not exceed the prescribed percentage of 10% (20% for off-the-plan purchases) of the purchase price;
- Any agreements for additional payments under a contract prior to settlement such as licence fees or early possession payments are separate to the contract;
- Accepting non-refundable payments from a buyer when agreeing to extensions to critical dates in the contract that do not entitle the buyer to receive conveyance of the property.
Before entering into any contract for the sale or purchase of residential property, we recommend seeking legal advice to ensure that you are not unknowingly entering into an instalment contract. Please contact the experienced team at CJM Lawyers to review your proposed contract, identify any potential risks, and ensure that your interests are fully protected to prevent any unforeseen legal complexities down the track.
Disclaimer: This article provides general information only and does not constitute legal advice. It is essential to seek specific professional legal advice tailored to your individual circumstances.
