Do you know how to define an instalment contract?
An instalment contract looks identical to a usual contract, However, it provides more protection to buyers and greatly restricts the rights of sellers.
It is important for BOTH a buyer and seller to
- recognise the warning signs of an instalment contract, and
- the potential dangers of entering into one.
What is an Instalment Contract
An instalment contract is defined by the Property Law Act 1974 (Qld) as
“a contract of sale of land where the purchaser is bound to make a payment or payments other than a deposit without obtaining a transfer of title to the land until the final payment is made.”
Simply put, an instalment contract is a contract that requires a Buyer to make a payment or payments and will not receive a transfer of title until the last payment is made.
Signs of an Instalment Contract
A contract is likely to be an instalment contract if it contains the following:
- a deposit of more than 10% of the purchase price (or 20% if off the plan); and/or
- any other payments required by the contract other than payment of the Deposit.
An example would be if a special condition to the contract requires the Buyer to make a $5,000.00 payment before the settlement date.
It is important to note that the Queensland Supreme Court in the case of Watpac Developments Pty Ltd v Latrobe King Commercial Pty Ltd & Anor [2011] QSC 392 has determined the releasing of a deposit to a seller does not amount to an instalment contract.
Instalment Contract – 4 Risks to Seller
Although an instalment contract provides greater protection than a usual contract to the buyer, there are risks to the seller which include the following:
1.Termination Notice
A usual contract would allow a seller to terminate a contract when a buyer fails to meet an obligation under the contract.
Risk
For an instalment contract, a seller cannot terminate the contract because of a buyer’s failure to pay an instalment payment until the seller gives notice to the buyer, and the buyer has still failed to pay that instalment payment for a period of 30 days from the date of the notice.
2.Cannot Mortgage Land
A seller cannot mortgage the land without the consent of the buyer, or the buyer can void the contract at any time before completion of the contract.
Risk
If the Seller does mortgage the property, the seller is guilty of committing an offence, and can be issued a fine.
3.Caveat
Section 74 of the Property Law Act provides that a Buyer under an Instalment Contract has an express right to lodge a caveat over the Land.
Risk
Registration of caveat by the buyer under an instalment contract can prevent any other person, including the seller, from registering any instrument over the property.
The creation of an Instalment Contract can severely impact a Seller’s right to terminate a contract if a Buyer defaults. It is important to get legal advice before you enter into any contract, including Instalment Contracts.
4.Buyer can Enforce Settlement
Risk
If the buyer has paid one-third of the purchase price, the buyer can serve a notice to the seller requiring the transfer of the property to the buyer.
Instalment Contract – Risk to Buyer
While an instalment contract greatly favours a buyer, it can also present a risk. If the buyer has paid one-third of the purchase price, the seller can serve a written notice to the buyer requiring the transfer of the property to the buyer. However, in this scenario, the seller is obliged to provide the buyer advance on payments to allow the buyer to complete the transfer of the property.
Conclusion
To summarise, it is important to be mindful of what type of payments a contract requires the buyer to make, as they can lead to an instalment contract, without the parties’ intention of creating one. If you believe you are a party to an instalment contract, you should be mindful of the obligations that may be enforced on you, particularly as a seller of the contract, to complete the settlement of the contract.
If you require assistance with any issue in regards to an instalment contract over a property in Queensland please contact the property team at NB Lawyers for more information.
NB Lawyers has extensive experience in drafting and advising on contracts and acting on sales and purchases of all kinds of properties. Our team of expert property lawyers are ready to assist you with all your property needs and can be contacted on 07 3876 5111.
Written by
Kayleigh Swift, Associate
NB Lawyers – Lawyers for Employers
[email protected]
(07) 3876 5111
AND
Chloe Skubis, Graduate Law Clerk
NB Lawyers – Lawyers for Employers
[email protected]
(07) 3876 5111
About the authors
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.