A residential contract usually requires the Seller to inform or provide the Buyer with a copy of document relating to disputes (if any) between the Seller and neighbouring property owners about trees. For instances:
a) the Seller must give the Buyer copies of any Queensland Civil and Administrative Tribunal (QCAT) applications or orders. If copies are not given before Contract, the Buyer may be able to terminate the Contract at any time before settlement (despite any contract disclosure);
b) if the Buyer terminates the Contract in this regards, the Seller may also be liable for the Buyer’s reasonable legal and other expenses after the Buyer signed the Contract;
c) if the Buyer completes the purchase and the Seller has not completed all work required in a QCAT tree order not disclosed to the Buyer before contract, the Seller may remain liable to carry out the work after settlement; and
d) If there are tree applications or orders affecting the property and they have been given to the Buyer by the Seller before the Buyer enter into the Contract, then the Buyer can be obliged to respond to the QCAT application or complete work specified in an order which has not been completed by the Seller.
QCAT search result does not reveal the presence of any applications in relation to trees that have not yet resulted in an order. This application can only be discovered by a physical search of the QCAT register. We recommend the Buyer instruct their respective solicitor to have a search agent conduct this search.
The Seller must promptly give the Buyer a copy of any notice, proceeding or order, received after the contract date.
The Seller must not give any notice, seek or consent to any order or agreement without the Buyer’s prior written consent after the contract date.
Although views from a property are not generally protected by the law, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (hereinafter referred to as the “ND Act”) will, in limited circumstances, provide a property owner with the ability to seek an order from QCAT regarding trees on adjoining land (or on land that would be adjoining but for a road). Where a person’s property is affected by substantial, ongoing and unreasonable interference from a tree on adjoining land, that person may seek orders under the ND Act in relation to the tree (including for compensation or for work to be done to the tree). If the interference is the obstruction of a view, QCAT may only make orders if the tree rises at least 2.5 metres above the ground and the obstruction is a severe obstruction of a view, from a dwelling on the property that existed when the property owner took possession of the property.
The ND Act will not provide the Buyer with greater views than what exist when the Buyer takes possession of the property. If the views from the property the Buyer is buying are important to the Buyer, we recommend that, on taking possession of the property, the Buyer make a record (including but not limited to photographs) of the existing views. Without a relevant record, it would be difficult to provide evidence to QCAT about the views that existed at the time the Buyer took possession of the property.
Source: The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011