Evaluating information disclosure to buyers of real estate - Useful or merely adding to the confusion and expense?

Abstract

This article questions the effectiveness of the current seller disclosure regimes in Australia and asks whether the statutory regimes have failed to achieve balance between the interests of buyers in being appropriately informed and the financial burden to the seller of extensive seller disclosure. This article suggests that it is time for governments to re-evaluate the balance between buyer and seller by giving greater consideration to not only what buyers actually want to know when buying a residential property but also the burden imposed on sellers of real estate. The article examines disclosure legislation in residential conveyancing throughout Australia, the form of the various obligations and their effectiveness as an instrument of raising buyer awareness of prospective defects in the land being purchased. It seeks to investigate whether ompliance with the various provisions by a seller create more problems for a seller given the seller’s reliance for disclosure information upon local authorities and other government agencies than benefits for a buyer by analysing the case law on the mandatory disclosure provisions, largely in New South Wales, Victoria and to a limited degree in Queensland. It concludes by urging some standardisation of the substance of mandatory disclosure and simplification of the provisions from an operational standpoint which might ultimately lessen both the cost of conveyancing to the consumer and the incidence of litigation between consumers as much as possible.