Preparing the contract, then completing

Residential sale

You cannot put a home on the market in New South Wales until a contract for sale has been prepared and the required documents are attached to it. That is the first job, and it is on the vendor’s side of the table.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

You are selling, or about to list

Selling is a different job from buying, and it starts earlier. A buyer can react to a contract. A vendor has to produce one, complete and correct, before an agent can put a sign up. The documents the law requires have to be ordered from councils, authorities and the register, and some of them take time to arrive.

That is the practical reason to instruct someone early. Every week spent waiting on a certificate is a week the property is not on the market, and a sale campaign that stalls while a document is chased is a campaign that has lost its momentum for no good reason.

The second reason is legal. A contract missing a prescribed document may give the purchaser a right to rescind, and that right is exercisable after exchange, when you have already taken the property off the market and possibly committed to a purchase of your own. A rescission at that stage is expensive in a way that has nothing to do with legal fees.

If you are selling and buying at the same time, tell us at the start. The two settlement dates have to work together, and arranging that is a matter of drafting rather than luck. If they cannot be aligned, there are options, and they are better considered before you sign anything than afterwards.

How we help

What the work actually is

Preparing the contract for sale

Drafting the contract for your property and your circumstances, rather than issuing a standard form with your address on the front. The special conditions are where a vendor’s position is protected, and they should be written for the sale you are actually making.

Ordering and attaching the prescribed documents

The title search, the registered plan and the dealings on title, the drainage diagram, the section 10.7 planning certificate, and whatever else the Conveyancing (Sale of Land) Regulation 2022 (NSW) requires for your land. These are ordered at the start because some of them take time.

Advising on what you have to disclose

What the legislation requires, what the contract warranties commit you to, and what is better disclosed than discovered. A problem disclosed before exchange is a negotiation. The same problem found after exchange can be a claim.

Handling the buyer's requested amendments

Responding to the changes the purchaser’s lawyer asks for, agreeing to the ones that are reasonable, resisting the ones that shift risk unfairly, and explaining the difference so the decision is yours.

Exchange, deposit and the cooling-off question

Arranging exchange, confirming the deposit has been paid and is held properly, and advising on a request that the purchaser waive cooling off by a section 66W certificate — including what it means for you if they do not.

Settlement, discharge and adjustments

Coordinating with your lender for the discharge of your mortgage, checking the adjustment figures for rates, water and any other outgoings, and completing settlement electronically so the money reaches you and the title passes at the same moment.

Questions

Questions people ask first

How early should I start the contract?

Before you choose an agent if you can, and certainly before you want the property advertised. The property cannot be offered for sale until the contract exists, and several of the documents that must be attached are issued by other bodies on their own timetable.

What has to be attached to the contract?

The documents prescribed by the Conveyancing (Sale of Land) Regulation 2022 (NSW) for the purposes of section 52A of the Conveyancing Act 1919 (NSW). In broad terms that includes the title documents and registered plan for the land, the dealings recorded on title, a drainage diagram and the section 10.7 planning certificate. Which items apply depends on the land, which is why the list is worked out for your property rather than copied.

What happens if something is left out?

The purchaser may be entitled to rescind the contract within a period set by the legislation, running from exchange. That is the risk the attachment requirement exists to prevent, and it is the reason a contract should not be issued until it is complete.

Do I have to tell the buyer about problems with the house?

There are disclosure obligations in the legislation, and the contract itself carries warranties about specified matters. Beyond that, what must be said depends on the circumstances, and it is a question to ask us about your property rather than to guess at. As a practical matter, a defect that is disclosed and priced is usually a better outcome than one that is found later.

Can I sell at auction instead?

Yes, and the same preparation applies: the contract and its attachments must be ready before the property is marketed. The difference on the day is that a successful bidder signs and exchanges on the spot, and there is no cooling-off period on an auction purchase.

Should I agree to the buyer's amendments?

Some of them, usually. A purchaser’s lawyer will ask for changes as a matter of course, and many are ordinary. Others move a real risk from the buyer to you, and a few are simply worth refusing. We tell you which is which and what each one would cost you.

What if I am buying as well as selling?

Tell us at the start. The two settlements have to be arranged so the money from one is available for the other, and that is done by drafting the settlement periods to fit rather than by hoping. Where they cannot be aligned, there are ways to bridge the gap, and they need to be considered before you commit to either contract.

What do I get out of settlement?

The purchase price, less the deposit you have already received, less the amount required to discharge any mortgage, and adjusted for rates and other outgoings to the settlement date. We check those figures before the day so there are no surprises in them.

What to send us

A sale is prepared from documents. The sooner we have these, the sooner the property can go to market.

The address of the property, and whether it is a house, a unit, a townhouse or vacant land.
Your rates notice and your water notice, which identify the land and the authorities.
The full legal names of every registered owner, exactly as they appear on the title.
Your lender's details and the loan account number, if there is a mortgage to discharge.
Any lease or tenancy agreement, if the property is tenanted.
Any certificate or approval for a swimming pool, or a note that there is one and nothing has been obtained.
Approvals and certificates for any building work, alterations or additions you have carried out.
The agent you have appointed, or a note that you have not chosen one yet.
Whether you are also buying, and the timing you need.