"Never be built out": views, property features and misleading conduct by agents

The law in short

Section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010) prohibits a person, in trade or commerce, from engaging in conduct that is misleading or deceptive or likely to mislead or deceive. Section 30 goes further for land specifically: it prohibits false or misleading representations about the nature of an interest in land, the price payable, the location of land, the characteristics of land, and the use to which land is capable of being put.

Three features of this make it powerful for a buyer. There is no need to prove the agent intended to mislead — an honest mistake, confidently stated, is enough. Liability attaches to the person who made the statement, so the agent and the agency are exposed in their own right, not only the seller. And the remedy is damages under section 236 or the broader orders available under section 237, which can include varying or setting aside the contract, so the right does not necessarily die at settlement.

Queensland adds a licensing layer. The Property Occupations Act 2014 makes it an offence for a property agent to represent anything false or misleading in connection with the sale of property, and the Office of Fair Trading can act on the agent's licence. A claim in negligent misstatement may also be available where the agent assumed responsibility for the accuracy of what they said.

Puffery versus a representation

Not everything an agent says is actionable. "Stunning outlook", "the best street in Golden Beach" and "a rare opportunity" are puffery — vague, obviously subjective, and not capable of being proved true or false. The courts have long accepted that buyers discount that kind of talk.

The line is crossed when the statement is specific, factual and capable of being checked. Compare the two columns in your head: "lovely water views" is puff; "that reserve is council land, it can never be built on" is a representation of fact about the characteristics and permitted use of neighbouring land. The second is the sort of statement people rely on when they decide what to bid.

• "The view can never be built out" — a representation about zoning, height limits or the status of the land in front. Almost always checkable, and frequently wrong.
• "The deck and the shed are council-approved" — a representation about approvals that a building record search will confirm or destroy in a day.
• "The block is 800 square metres and goes to the back fence" — area and boundary statements, testable against the registered plan and a survey.
• "You can rent the downstairs flat out separately" — a representation about permitted use, governed by the planning scheme and often by the body corporate by-laws.
• "It's never flooded" — a representation about history and risk, contradicted by flood mapping and, increasingly, by insurers.
• "Body corporate levies are about $900 a quarter" — a figure, not an impression. If it is materially understated, it is a misrepresentation about the price payable for the interest.
• "There's approval for a second storey" — approvals lapse. A lapsed or never-lodged approval stated as current is a classic.

Views: the most expensive representation in coastal Queensland

View claims are the ones we see most often on the Sunshine Coast, and they cause the most loss because the premium is baked into the purchase price. There is no such thing as a legally protected private view in Queensland. Nothing in the title guarantees an outlook. What actually protects a view is the planning scheme applying to the land in front: its zoning, its building height limits, whether it is park, reserve or road, and whether any of that can be changed by a development application.

That is why the confident statement is so dangerous. A vacant lot may be capped at two storeys today and the subject of a live application for six. A grassed strip may look like a park and be a drainage reserve that can carry a pump station. Land held by a neighbour with no current plans is not a protection at all. An agent who says the outlook is safe is making a planning representation, and in a sale of a view property the loss flowing from getting it wrong is measured by the difference in value between the property as represented and the property as it is.

• Ask which lot the view is over, then look it up. Council's planning scheme mapping shows the zone and the maximum building height for that specific lot.
• Check whether there is a current or recent development application over it on council's development register. Applications are public.
• Reserve, park and esplanade land is safer than private land, but it is not immunity — public land can be built on, and reserves can be revoked.
• If the outlook is genuinely central to what you are paying, protect it in the contract rather than in conversation. A special condition making the contract subject to your solicitor's satisfaction with the planning status of a nominated lot is easy to draft and costs nothing.
• Photograph the outlook on inspection day and keep the marketing material. If a dispute follows, what was advertised is evidence.

Contract clauses that try to shut the argument down

Every standard REIQ contract contains an entire agreement clause and an acknowledgement that the buyer has not relied on any representation made by or on behalf of the seller. Agents sometimes treat these as a complete answer. They are not.

A party cannot contract out of the Australian Consumer Law. A non-reliance clause is evidence going to whether the buyer in fact relied on what they were told — sometimes strong evidence — but it does not extinguish a statutory claim, and it does not help the agent at all where the claim is brought against the agent personally rather than under the contract with the seller. What the clause does do is make the buyer's contemporaneous record decisive, which is the practical reason to keep the listing page, the text message and your own file note.

The same goes for disclaimers on marketing material. Boilerplate stating that all information is from sources believed reliable and buyers should make their own enquiries has repeatedly failed to protect agents who made specific factual statements. A general disclaimer does not neutralise a particular assertion.

What a buyer should do before signing

Almost every one of these disputes was preventable in the week before contract, for the price of some searches. The Form 2 seller disclosure statement introduced in August 2025 helps, but it does not cover an agent's verbal claims about the neighbouring land or the future of a view.

• Get anything that matters put in writing. "Can you just confirm that by email?" is the single most useful sentence a buyer can say, and a reluctance to do it tells you something.
• Order the searches that match the promise: building approval records for structures, a planning and development search for use and height, a survey where boundaries or area matter, a body corporate search for levies and by-laws, and flood mapping.
• Have the contract and the disclosure package reviewed before you sign. Our review is free, and we look specifically at whether the features you are paying for are actually secured.
• Where a feature is fundamental, use a condition rather than trust. Subject to survey, subject to satisfactory building approval records, subject to planning enquiries — all ordinary, all accepted.
• Keep the evidence trail: the listing as it appeared, the brochure, the emails and texts, and a dated note of what was said at the inspection and by whom.

What a buyer can do after the truth comes out

The right response depends on when you find out. Before settlement, there may be room to terminate or renegotiate — under a contract condition, under the seller disclosure provisions in section 104 of the Property Law Act 2023 if the defect touches the disclosure statement, or by agreement once the seller understands their own exposure. After settlement, the contract is generally performed and the realistic claim is for damages against whoever made the statement.

Damages under section 236 are usually measured as the difference between what you paid and what the property was actually worth given the true position, which normally requires a retrospective valuation. There is a six-year limitation period from when the loss was suffered. Contributory conduct can reduce an award where the buyer failed to make obvious enquiries, so the buyer who was told the shed was approved and never searched will not necessarily recover in full.

• Act early. Rights before settlement are far broader and far cheaper to exercise than a damages claim afterwards.
• Preserve the record immediately — screenshot the online listing before it is taken down, and save the marketing material and correspondence.
• Get the true position documented: a search, a council response, a surveyor's report, a valuation of the property as it truly is.
• Consider all the defendants. The agent, the agency and the seller may each be liable, and agencies carry professional indemnity insurance.
• QCAT has jurisdiction over many claims involving property agents, and the Office of Fair Trading can pursue disciplinary action and, in some cases, compensation from the claim fund. A complaint is not a substitute for a civil claim, but it is a genuine source of pressure.
• Weigh the commercial reality. If the loss is $20,000, a Supreme Court proceeding is not the answer; a well-evidenced letter of demand to the agency very often is.

For agents and agencies: how to stay out of it

Most agents who end up in one of these disputes did not lie. They repeated what the seller told them, or they said what they genuinely believed about the vacant block opposite. That is precisely the trap in section 18 — good faith is not a defence.

• Attribute, do not assert. "The seller tells us the deck was approved in 2016" is a materially different statement from "the deck is approved".
• Never make planning predictions. "We can't tell you what can be built there — council's mapping shows the zoning and height limit and your solicitor should check it" is accurate and takes ten seconds.
• Use the seller's documents, not your recollection. Land area comes from the title search. Levies come from the body corporate certificate. Approvals come from council records.
• Correct errors in writing the moment you find them, before the buyer signs. A corrected representation is rarely actionable; an uncorrected one usually is.
• Keep the file. When a claim arrives eighteen months later, the agency that can produce the email trail is in a completely different position from the one relying on memory.

How we help

Our work here is preventative, not litigious. We do not run misleading conduct litigation. For buyers, the cheapest version of this problem is the one we catch before you sign — which is why our pre-signing contract review is free, and why we ask what you were told, not just what the contract says. For sellers and agencies, we advise on how listings and disclosure should be worded so that a genuine mistake does not become a liability. If a dispute has already gone past the point of negotiation, we will say so and point you to a litigation specialist.

• Free pre-signing contract and disclosure review for buyers across the Sunshine Coast, Moreton Bay and Wide Bay.
• Special conditions protecting the specific feature you are paying for — view, boundary, approval, permitted use.
• Advice on termination and renegotiation where a misrepresentation surfaces before settlement.
• Where a problem only surfaces after settlement, an initial view on where you stand and a referral to an experienced litigation solicitor — we do not run court proceedings ourselves.
• Risk reviews and training for agencies on listing copy, verbal representations and record keeping.

Misleading claims about property features — common questions