In this blog/video we discuss encumbrances in Queensland property, and how they can hijack a property sale!

We discuss how missing an encumbrance can allow the buyer to terminate, we explore how to find encumbrances and then what to do to protect the transaction, and more...

Prefer to watch/listen? Click here to consume this content via YouTube!

Hi everybody - George Sourris, Empire Legal.

Today's topic: The Shocking Truth About Encumbrances in Queensland Property Deals!

 When selling real estate in Queensland, it's crucial to disclose ALL encumbrances affecting the property to the buyer BEFORE they sign a contract.

Some encumbrances are easy to identify because they appear on the property's title, such as registered encumbrances, or covenants. An example of this could be a driveway or stormwater easement registered on title that affects the property.

However, not all encumbrances appear on title. These encumbrances are known as unregistered title encumbrances. They must also be disclosed to the buyer. A common example of an unregistered title encumbrance is a statutory easement granted to utility providers, for essential services, like water, electricity, stormwater, drainage, internet and telecommunications.

The current Queensland REIQ Contract for Houses and Residential Land highlights the seller's obligation to disclose matters under the section titled: Matters Affecting the Property. This section specifically instructs sellers to disclose-  all title encumbrances which will remain after settlement,  for example easements on the title, and statutory easements for sewerage and drainage,  which may not appear on the title.   Failure to disclose unregistered title encumbrances can have serious consequences.  

The buyer will likely have the right to terminate the contract at any time before settlement, even if it's otherwise "unconditional". This is noted specifically in Standard Term 7.7 of REIQ contracts. The buyer may also seek damages, including costs.

Some real estate agents attempt to cover these encumbrances by inserting broad catch all clauses in contracts, such as: "all statutory easements or encumbrances or rights for water, sewerage, drainage or other utilities".

However, this general wording blanket statement is not sufficient, and will almost certainly leave the seller vulnerable with legal consequences. If you look on page 3 of the REIQ contracts, right next to the matters affecting the property section, you'll see a little disclaimer that reads:

"WARNING TO SELLER - you are required to disclose all title encumbrances which will remain after settlement, for example, easements on title in favor of other land and statutory easements for sewerage and drainage which may not appear on a title search. Failure to disclose may entitle the buyer to terminate the contract or to compensation. It is not sufficient to state, refer to title, searches will reveal or similar".

If you haven't seen that little section, you should give it a read!

Therefore, guys, to ensure full disclosure of any unregistered title encumbrances, sellers should go beyond a standard title search and conduct a free dial before you dig search. This will help identify the exact location of any underground services that may be subject to statutory easements.

Third party town planning reports are also available, like a Propcheck or a Develo.  At Empire Legal, we use Propcheck reports.  If it is available in the local council our clients are purchasing, we order a PropCheck (valued at $49) and give it to our clients for free as part of our service. This allows the clients to see any easements or encumbrances that may affect the property.

The PropCheck is a comprehensive report, offering flooding advice, heritage, koala habitats,  fire risk, noise corridors, odour corridors, etc. We suggest you click the link above if you want to find out more about either service. 

If any easements or encumbrances are found, the seller must mark "yes" on page 3 of the contract where it asks: "title encumbrances - is the property sold subject to any encumbrances". 

The encumbrance should be then clearly described. For example: "sewer main traversing the property, see attached asset map titled Annexure A". Then, a copy of the search with a plan highlighting the encumbrance should be attached to the contract, with all parties signing it as part of the agreement.

That way, it's unambiguous as to the particular encumbrance we're talking about, and the buyer can't later claim they didn't know it existed.  By being compliant and disclosing any encumbrances that might affect the property, a buyer is informed as to exactly what they are buying. This transparency safeguards the purchase, as the buyer is purchasing the property with the knowledge of the encumbrance. 

While some items are considered "buyer beware" in Queensland, encumbrances are required to be disclosed. Failure to disclose can allow a buyer to terminate right up until settlement. 

Well guys, I hope you learned a thing or two about disclosing encumbrances for Queensland property contracts today. Keep in mind, we have a huge overhaul of the Property Law Act coming into effect on the 1st of August 2025.

This will change the way disclosure happens in Queensland, similar to the southern states. If you haven't already checked it out, I've done a blog on this new Disclosure Regime and the new Form 2, which is a 7 page form that's required as that 1st of August.

At Empire Legal, we are property experts. It's all we do. If you're buying or selling in Queensland, we are your people. We have thousands of Google reviews with a five star average. Pick a conveyancing team you can trust. Like, subscribe, and share.

Guys, if you've been listening to this channel for a while, or you've just come across it, but you've never liked, commented, or subscribed, please do. It helps the algorithm find us, which allows us to reach and help more people. Thanks guys. I hope this helped you out. We'll see you next week. 


Guys, that's it for this week. Thank you so much. We've just hit 750 followers on our YouTube. As you know, our goal is 1,000. This is free content. Please share it with people. Subscribe. Helps us find more people to help. Obviously, Empire Legal, Conveyancing, Queensland wide.

It's all we do. We want to help you. If you've been listening to us for a while, but you haven't made contact, please do! We want to help people buy and sell homes and deliver QLD's best conveyancing experience. Thanks guys, we'll see you next week.

Subscribe to our YouTube and our blog. We want to get to 1,000 YouTube subscribers. We're only going to do that with your help. We're giving out this content for FREE to help you and your peers. Spread the good word of Empire Legal. We want to help everyone make property law in Queensland easy and smooth sailing. 

If you have any questions, you can email me: george@empirelegal.com.au. 

If this has added value, please share this blog / the YouTube video with a friend. 

Thanks for reading everybody. See you on the next one.

Ladies and gentlemen, please keep in mind that all advice is general in nature and does not constitute legal advice. This is authorised by George Sourris, Empire Legal, Brisbane, Queensland, Australia.

---------------------------------------

We can help…

For simple, sunny, smooth sailing conveyancing - Empire Legal.

We look forward to continuing to help thousands of Queenslanders every year with their conveyancing!

Any questions? Want to know more? Get in contact with us via the below form or via info@empirelegal.com.au.

Note: all information is general in nature and as each matter is unique please contact our office for tailored advices: the above does not constitute legal advice.