The conveyancing process is designed to ensure that the buyer obtains good and indefeasible title to the property together with all the rights that run with the property.

For most people buying a property is the most significant transaction they will enter into in their lifetime, both from an emotional and financial point of view. There can be detrimental consequences if it is not done properly.

A purchaser should be informed of any restrictions or rights affecting the title in advance of their purchase.

A vendor wants an efficient sale process so they can move forward with their own future plans.

As your lawyer we can help you navigate the process whether you are a buyer or a seller.

Putting your property on the market

You are not allowed by law to advertise for sale a residential property in NSW unless a contract for sale of that property has been prepared in advance in compliance with statutory obligations and the contract must be made available to an interested purchaser.

So, if an agent knocks on your door in this current seller’s market – you may choose to sign up with the agent, but that agent will then need you to provide the contract of sale before the selling process can begin.

At this stage contact us to assist putting together your contract, taking account of your individual circumstances.

Seller’s obligations

When selling a property there are some statutory obligations on the seller to disclose to the buyer certain things about the property before the contract is signed. The vendor’s contract must attach various mandatory documents and prior to completion the vendor must supply to the purchaser various additional documents for example certain clearance certificates and the vendor must disclose if any liabilities exist which must be discharged on completion.

As your lawyers it is our role to obtain the mandatory searches and certificates to compile your sale contract.

Purchaser enquiries and investigations

There is no obligation on the seller to tell a purchaser everything about the property or obvious defects which a purchaser could investigate for themselves before entering into the contract. For example: A purchaser may obtain pest or building reports or a strata records inspection if applicable. A purchaser also can observe the state of the property at time of visual inspection.


Title to property and encumbrances

A review of the documents attached to the contract is necessary to confirm that the seller actually owns the property and has the right to sell it to you. Contracts are prepared by a seller in accordance with legal requirements and these will include a variety of prescribed documents, but it is helpful to have those explained before you buy.

The documents attached to the contract should provide information about any encumbrances on the title.

Examples include:

  • Mortgages registered against the property. Mortgages must be removed from the title before settlement.
  • Easements on title for the benefit of a third party, possibly the local council or utility company who may have the right to use a portion of your property (possibly above or below ground) for things such as sewerage, electricity, telephones or gas.
  • Restrictive covenants which affect how the property can be used. For example, a neighbourhood may have building size and design requirements or restrictions on the use of some building materials.

Often further explanation is required to ensure you as the purchaser properly understand any issues regarding the property you propose buying.

For example:

  • Is there a water board main sewer on the property?
  • Is there a right of way or some other easement or restriction, which you need to know about?
  • Is there any important disclosure in the council certificate which might prevent you building on the property or altering the property the way you might intend if you were to buy it?
  • What is the zoning?
  • Are there restrictions on the use of the land?
  • Would you be able to conduct a business from the property if you hoped to do so?
  • What is the purchaser’s knowledge of the area and their intentions for the use of the property, eligibility for duty concessions if any and so forth?
  • If you want to buy a strata property have you made any enquiries about levies, special levies, or restrictions imposed by the by-laws on title?

Other types of title

There are additional matters to consider, if you want to buy a unit in a contract for sale of properties in a community scheme or if you want to buy a company title property.

Purchaser’s responsibility to undertake some searches and enquiries

The old saying “Buyer Beware” applies to some extent in conveyancing and a buyer should make such reasonable enquiries that may be appropriate prior to exchange. For instance, if you leave a pest or building report until after exchange has become unconditional, but later discover that the foundations are slipping or the property is invaded by termites, that will not give you any basis to get out of the contract unless the contract was entered conditionally to allow you to make those enquiries before the contract becomes unconditional.

Similarly, if you want to buy a strata unit and make no enquiries in advance of exchange you might find soon after you buy there is a special levy to be imposed to rectify some problem or shortfall of strata owner’s corporation funds, which you did not know about and have not budgeted to cover.

Cooling off period

A purchaser can enter a contract with a cooling off period typically five days to allow preliminary investigations being undertaken without risk of being gazumped during that period, but if you do not proceed you lose 0.25% of the purchase price.


Sometimes contracts are entered into on a conditional basis typically a reason might be that the contract is subject to the purchaser obtaining finance approval. If the finance is not obtained the purchaser can rescind without loss of deposit.

Special Conditions


When you are the vendor, you want some control over certain matters which can be managed by inserting special conditions in the contract. Your lawyer can include special conditions in the contract to deal with specific issues, not covered by the standard form contract. For instance, what happens if the purchaser does not settle on time or in the case where a private company is the purchaser you might need to include a special condition requiring a guarantee from the company directors to be personally liable for completing the contract and paying the purchase price.


A purchaser’s lawyer is able to discuss with the purchaser whether there is a requirement to negotiate special conditions to assist the purchaser including perhaps allowing a five percent deposit or to amend or remove existing special conditions that could be considered harsh or unfair.

After exchange

Where the contract has already been signed there is generally no opportunity to add special conditions. In some limited circumstances it may be possible to negotiate amendments to the terms of the contract if there is a cooling off period or while the contract is still conditional.

Best outcome

Vendors and purchasers may have different interests, but a contract should be fair and reasonable and meet the legal requirements for selling property set out in various statutes. In this way both sides should benefit from a successful sale from a vendor to a purchaser.

If you need assistance with a conveyancing matter (either buying or selling) or would like more information please call us on 02 9699 9877 or email [email protected].