Selling

What do I do first?

When you have decided to sell any residential property, the first thing you should do is consult your conveyancer.  You may have been contacted by a Real Estate Agent or you may have one in mind to use, but they cannot proceed until after you see your conveyancer.

The Law provides that before anyone, estate agent or owner, can place a property on the market, they must have a proposed contract prepared so that a prospective buyer can inspect the contract.  There are hefty fines imposed on anyone caught promoting the sale of a property in anyway whatsoever before a contract is prepared.

Your conveyancer will prepare the contract for you so that you can instruct your estate agent to proceed with the sale of the property.

The Contract for the Sale of Land

The Contract details the ownership, title details and the legal terms and conditions of the sale together with what is included in the sale. It is very important to discuss your situation with your conveyancer so that the contract may be varied to suit different needs.

You also need to know your disclosure responsibilities, as failing to disclose certain things can lead you into troubles. We will send you an instruction form which includes many questions to assist us to obtain information needed and prompt us to request further information if it is necessary.

Real Estate Agents and Agency Agreements

An Estate Agent must have an agency agreement signed before they can list your property for sale.  

There are two types of agency agreements which is mainly used in NSW.

• Exclusive agency agreement is most commonly used to sell residential real estate, you are giving the agent the exclusive right to sell your property.  While the exclusive agency agreement is current and someone else sells the property (including yourself), the agent is entitled to be paid the agreed commission.
• Open agency agreement will allow you to list with any number of agents you wish.  You only pay commission to the agent who finds the buyer for your property,

Agency agreements are usually for a fixed period of time and cannot be ended prior to the end of that period unless both seller and agent agree.  The period of the agreements is negotiated with the agent; it is usually 90 days but can be for any period agree to.  Make sure you only have one agreement at a time and do not commit yourself to payment of a commission to more than one agent.  Make sure any agreement is properly ended before entering into another agreement with another agent.

Exchange of Contracts

Contracts are signed by all parties involved in the transaction and when the seller and buyer have both agreed on a price and the conditions of the sale the contracts are exchanged and dated and the deposit paid by the buyer.

Contracts are drawn up in duplicate and one copy is signed by the seller and one copy is signed by the buyer.  The exchange of contracts is the exchanging of copies so that each party ends up holding the copy signed by the other party.

The contract can be exchanged either by the estate agent or by the conveyancers.

Until such time as the contracts are exchanged, either party can withdraw from the transaction, it is only once contracts are exchanged that the parties are bound to proceed, and in the case of the buyer having a cooling off period the buyer is not bound until the cooling off period expires.

The Cooling Off Period

Every contract for the sale of residential property (less than 2.5 hectares) has a cooling off period of five working days. The seller is locked into the contract and cannot withdraw from the sale.  If the purchaser finds that for any reason he or she does not want to proceed with the purchase, they can rescind the contract within the cooling off period and forfeit to the vendor 0.25% of the sale price. 

The purchaser can waive the cooling off period by providing a Section 66W certificate on exchange which is signed by the purchaser’s conveyancer or solicitor. The contracts exchanged with a Section 66W certificate are unconditional.

There is no cooling off period if the property is sold at public auction or on the same day as the property was listed for auction sale.

Settlement

After the contract has become binding, your conveyancer will have tasks to perform including:

• Discharge of mortgage if any
• Applying required certificate with various government authorities
• Replies to requisition on title
• Calculating adjustments for council, water and strata rates
• Making final checks on the title, etc.

NSW is now entering an era of E-conveyancing. The settlement is undertaken electronically via PEXA. All parties are working in a same workspace in PEXA and complete a settlement.

Contact us to discuss the specific property you are considering selling.