Material facts when buying property is a guide written and published by Dotto, on what five states say about hiding a material fact from a buyer or misleading one. In Victoria, the Sale of Land Act’s list of offences reaches any person who, to induce someone to buy land, knowingly conceals material facts; Western Australia and Queensland address agents and others involved in a sale; South Australia, here, rests on the national Australian Consumer Law; and Tasmania is described as its Property Agents Board advises agents.
General informationThis guide describes published rules, not how they apply to any purchase. The legislation linked on each page, Consumer Affairs Victoria, Tasmania’s Property Agents Board and the ACCC are the places to check; a solicitor can say how a rule bears on a particular sale. New South Wales, the ACT and the Northern Territory are outside this guide.
One row for each film
Each row is one state’s film: where its rule sits, whom it binds as the rule itself words it, and what it reaches.
| State | Where the rule sits | Whom it binds | What it reaches |
|---|---|---|---|
| VICVictoria | Sale of Land Act 1962, section 12(d), with section 12A on guidelines | Any person acting with the intention of inducing someone to buy land | Knowingly concealing material facts, and statements, promises or forecasts made knowing they mislead, or made recklessly |
| WAWestern Australia | The WA agents’ Code of Conduct 2016, clause 24 | An agent or sales representative | Finding out or verifying the material facts before a client signs a contract, and promptly passing a material fact to anyone affected who appears unaware of it |
| QLDQueensland | Property Occupations Act 2014, sections 209 and 212 | A marketeer, in a sale of residential property (s 209); a licensee or real estate salesperson (s 212) | False or misleading representations, which in each section include the wilful concealment of a material fact in the representation |
| SASouth Australia | Australian Consumer Law, section 18, and section 30 on land | A person, in trade or commerce | Misleading or deceptive conduct, and false or misleading representations about land |
| TASTasmania | As the Property Agents Board explains section 56 of the Property Agents and Land Transactions Act 2016 | Property agents | Representing what the agent knows to be false or misleading, with the Board’s advice on disclosing material facts |
The three guides
- Concealing a material fact when buying in VictoriaSection 12(d) of the Sale of Land Act 1962, read part by part; what makes a fact material; the guidelines; and what Consumer Affairs Victoria tells agents.
- Material facts in Western Australia and QueenslandClause 24 of the WA agents’ code, and Queensland’s sections 209 and 212, where a false or misleading representation includes the wilful concealment of a material fact.
- Misleading conduct when buying in South Australia and TasmaniaThe Australian Consumer Law’s rules on misleading conduct and on representations about land, and the Tasmanian Property Agents Board’s advice to agents.
Words that recur
- Material fact
- Consumer Affairs Victoria describes one as a fact a potential purchaser would find important in deciding whether to buy land, or one that may influence the price a purchaser pays. Tasmania’s Property Agents Board puts it in terms of any fact that could sway a decision to buy or lease, or the price paid.
- Representation
- For Victorian agents, Consumer Affairs Victoria says a representation can include “any verbal or written advice, advertising or other statements”.
- Trade or commerce
- The setting the Australian Consumer Law’s section 18 names: a person must not, “in trade or commerce”, engage in misleading or deceptive conduct.
Whoever acts for a buyer
In Queensland, a person acting for someone else for reward may not do what a property agent licence authorises without being licensed or otherwise permitted. In Victoria, Consumer Affairs Victoria describes a buyer’s agent as a licensed estate agent who acts for a buyer, for a fee, and says buyers’ agents are held to the same general rules of professional conduct as other estate agents.