The insertion of a special condition into a contract of sale for residential property can provide important safeguards for potential buyers from both a property law and criminal law view point. Creevey Russell Lawyers encourages individuals looking to purchase residential property to be aware of their rights and the ability to add special conditions to a standard contract of sale to protect their interests.
Our firm is increasingly seeing a special condition being inserted into residential contracts of sale, worded to the effect:
“That the contract is subject to and conditional upon the buyer obtaining a satisfactory drug test report on the property within X days from the date of the contract. In the event the report is not satisfactory to the buyer, then the buyer may terminate the contract.”
Solicitor, Rachel Greenslade, of Creevey Russell Lawyers says that inserting a special condition into a contract, such as the one outlined above, provides protections for individuals investing in the property market, in a similar way to how a building and pest condition operates.
A building and pest condition is a common clause in many residential contracts and allows a purchaser to terminate a contract of sale in the event they are not satisfied with the results of a building and pest report. At the time of signing a contract, a buyer who has limited experience with the construction industry is unlikely going to be aware of any issues potentially impacting on the property, such as the existence of termite damage or structural damage. A building and pest condition provides a safeguard for buyers by allowing experts to come and inspect the property and inform the potential buyer of any building and/or pest issues effecting the property. If the buyer has concerns following receipt of the report, the buyer usually has the right to terminate the contract.
An insertion of a special condition similar to the one outlined above provides a comparable safeguard to potential buyers, but relevant to drugs. The presence of drugs in a property can have an impact from both a property law and criminal law perspective.
From a property law perspective, the Residential Tenancies and Rooming Accommodation Act 2003 (Qld) requires landlords to ensure that leased property meets minimum prescribed housing conditions including the obligation to ensure that the property is clean, fit for the tenant to live in, is in good repair and does not impair the health and safety of persons using or entering the property. The presence of drugs can have a long term impact on health and wellbeing, and should a tenant suffer loss as a result of poor health due to the presence of meth contamination, the landlord may find themselves at the wrong end of a claim. The insertion of a special condition allowing a buyer to carry out a drug search can help an investor avoid the undesirable outcome of purchasing a property which is deemed unfit for habitation without considerable expense after settlement is complete.
From a criminal law perspective, the condition offers an important safeguard for occupiers of a property. Section 129 of the Drugs Misuse Act 1986 (QLD) effectively says that an individual who is an occupier of a property is expected to have knowledge and control of items located in those premises and proof that a dangerous drug was located in a place the person occupied is conclusive evidence of possession – this provision is referred to as “occupier’s liability”. Occupier’s liability extends the usual definition of “possession” and imposes a reverse onus on occupiers of a property. This reverse onus, in practical terms, means that once drugs are located on a property (usually following police executing a search warrant), the occupier is required to demonstrate that they did not know, or ought not to have known, about the presence of the illicit substance or thing located. This is different to the usual onus of proof in criminal law matters, where prosecution bears the relevant onus of proving an individual’s guilt. Occupier’s liability reverses the usual presumption of innocence in criminal law proceedings.
It is unusual that property law and criminal law proceedings overlap in this way, but Creevey Russell Lawyers encourages individuals looking to invest in residential property to be aware of their rights and to carry out thorough investigations in respect to a proposed purchase for investment purposes as failure to do so can have serious civil and criminal ramifications.
Should you require advice in respect of any property law matters, please contact Ms Rachel Greenslade on (07) 4617 8777. Should you require advice in respect of any criminal law matters, please contact Mr Trent Jones on (07) 3009 6555.