The first thing you need to do if you’re selling your house or apartment is to prepare a contract for sale. Putting your house on the market without having a proper contract is an offence under NSW law and could lead to you being fined.

The law says that all sellers must include certain information in the contract for sale and must also make certain promises (known legally as ‘warranties’) about the property they’re selling. These obligations are known as the Vendor Disclosure Requirements.

​The most common documents you may need to include with the contract are:

• a zoning certificate. Often known as a ‘section 149 certificate’ this is issued by local council and shows planning controls and other things which may affect the property, such as any proposed road widening

• a drainage diagram. This shows the location of any sewer lines

• a copy of the certificate of title confirming that you own the property

• copies of any documents creating easements, rights of way, restrictions or covenants.

You should also talk to your solicitor about whether you should include:

• an identification survey

• a building certificate, and

• a home owners warranty insurance certificate.

Most apartments in NSW are strata title. If you’re selling a strata title property, you’ll also need to include:

• a copy of the property certificate for the lot and common property

• a copy of the strata plan showing the lot

• a copy of any change of by-law affecting the use of common property.

Unless the contract for sale includes specific information that says otherwise, by putting your property on the market you’re deemed to have made a number of promises about it. These include:

• that the land isn’t subject to any ‘adverse affectation’(essentially government proposals that might affect the land)

• that there’s no sewer on the land that isn’t shown in the drainage diagram

• that the zoning certificate gives an accurate picture of the zoning of the land at the date of the contract.

Many of the terms in any contract for sale will be ‘standard’, which means that they’ve been in use for a long time and are generally considered to be fair to both the seller and the buyer. You don’t necessarily have to include all of these standard terms in your contract, especially if they don’t reflect your needs or the property you’re selling.

Your solicitor will make sure that the contract for sale doesn’t only meet the legal requirements, but that it’s also in your best interests. That said, it’s likely any buyer will want to negotiate some of the terms on which they’re buying. For instance, if they’re also selling a home, they may want a longer or shorter settlement period than normal.

Alternatively, they may want to make sure certain items, such as the blinds, are included as ‘fixtures’.

Your solicitor will continue to negotiate with the buyer’s solicitor to make sure that you still sell on your terms. This will include working out a time to ‘settle’ the sale, which is when you’ll be paid the balance owing.

Most properties in NSW are sold by private treaty. This is where you advertise the amount you’d like to achieve for your property and then negotiate the final price with any prospective buyers.

If you choose to sell by auction, the contract won’t include a ‘cooling off’ period. Instead, if the property is ‘on the market’ (ie your reserve has been met) and the hammer comes down, the winning bidder is bound to go through with their purchase (unless, of course, there is a serious problem with the contract for sale).

A cooling off period gives a buyer the chance to consider whether they really want to enter the contract once the emotion of making an offer has subsided (it also gives them the chance to carry out any building and pest inspections before the contract is final).
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Potential buyers will usually only forfeit 0.25% of the purchase price if they pull out during the cooling off period.

In some circumstances you can ask the buyer to waive the cooling off period, especially if they have a solicior acting for them and have done their searches and inspections.

Unless the contract specifically says otherwise the property is sold ‘in the state it’s found’. That also means any ‘fixtures’ are automatically included.

A fixture is anything that can’t easily be taken away without doing damage to the property. For instance, stoves are usually fixtures because they’re wired in, whereas fridges aren’t because they only need to be unplugged. Sometimes you may be able to exclude a fixture from the contract for sale. At other times, what constitutes a fixture isn’t so clear cut (eg removable floor coverings or an above-ground pool) and this can lead to a dispute between you and the buyer.

Where anything is in doubt, it should be expressly included in the contract for sale.

A contract to sell a property becomes binding when the buyer and seller sign their copy of the contract for sale and then ‘exchange’ them. At exchange, the buyer also usually hands over a deposit (usually 10%). At an auction, exchange happens immediately after the winning bid is accepted. Your solicitor or agent will usually effect contract exchange by delivering your signed contract to the buyer and collecting the buyer’s signed copy as well as the deposit. However, it’s not unusual to exchange contracts by mail.

Often after exchange your real estate agent will invest the deposit in an interest bearing account until settlement (your solicitor may do this if you don’t have an agent). When the sale is finalised any interest earned on the deposit will then usually be split equally between you and the buyer.

In NSW only buyers have to pay stamp duty on the sale of a property. However, there may be other taxes you’ll need to pay, particularly if you’re selling an investment property.

GST doesn’t generally apply to the sale of residential property. But you will be liable for GST if the property you’re selling has a commercial use (and in some other limited circumstances).

Unless you purchased the property before 1985, the sale of an investment property will usually attract Capital Gains Tax (CGT).

However, you don’t usually have to pay CGT on the sale of your own home. That said, the law surrounding CGT is complex so you should see your solicitor if you’re in any doubt about whether or not you’ll need to pay CGT.

Sometimes a buyer will want to occupy the property before settlement, especially if they’ve already sold their home. The standard contract for sale has a clause governing this scenario. It says that the buyer will have to pay you an occupation fee, creating a licence which runs until settlement date. It also says that the buyer must take out insurance and cannot make structural changes. Any adjustments to utility bills, taxes, etc should also take into account the date of occupation.

Because risk ultimately rests with the seller, you should never let a potential buyer take possession of your house before settlement until you’ve consulted your solicitor. An alternative to early occupation may be to bring the settlement date forward.