Property Transactions in the ACT & NSW: What You Need to Know
Written by Jordan Davis-Kimber, Manager - Conveyancing, Terracon Legal
From understanding when to engage a conveyancer to navigating cooling off periods, deposits and finance arrangements, there are a number of key steps that can significantly impact your transaction.
Below, our team answers some of the most common questions we receive about buying and selling property in the ACT and NSW.
When should I engage a conveyancer?
You should engage a conveyancer once you have found a property that you are interested in buying, or once you have decided that you wish to sell your property. Early engagement is key, and allows you to move quicker on your proposed purchase or sale when negotiating (and time is of the essence).
Do I need to get the Contract reviewed before I make an offer?
- Private treaty (ACT/NSW): You can make an offer first, but get advice on the Contract before you sign anything. When making an offer, it is always a good idea to make it clear to the agent that it is subject to legal review and exchanging in the usual manner.
- Auction or pre‑auction offers: You should get advice on the Contract before the auction. If you are the successful bidder at the auction, you will be immediately bound to the terms of the Contract.
It is important to get advice on any Contract before you sign it so you can ensure that you fully understand and agree to it’s terms and conditions. In most cases, once you sign the Contract you are legally bound to it’s terms without any rights to ‘walk away’ from the purchase.
What is the difference between joint tenants and tenants in common?
- Joint tenants: You will each own the property equally, and there is a right of survivorship. This means that, in the event of one owner’s death, their share of the Property will automatically pass to the surviving owner. This form of co-ownership is most common for married and de facto couples.
- Tenants in common: Each party holds defined shares of the Property and there is no right of survivorship, meaning each party can deal with or dispose of their share independently. In the event of one owner’s death, their share of the Property will be dealt with as per their will or estates law (as applicable).
What amount do I need to pay as a Deposit?
The standard terms of an ACT and NSW Contract require a buyer to pay 10% of the purchase price as a deposit, although it is quite common for a 5% deposit to be agreed to in the current market (this will be at the discretion of the Seller). You will be required to pay the deposit either on or before exchange.
Do I have any cooling off rights?
This really depends – in most cases a Seller will require you to waive any cooling off rights at the time of exchange, so no you will not have any cooling off rights. The logic behind waiving your cooling off rights is that you have had the time to discuss the Contract with us, your bank or broker and other advisors and have not exchanged Contracts without an opportunity to seek such advice.
If you buy at auction, the auction conditions will waive any cooling off rights and you will be bound without a right to ‘walk away’ from the purchase from the date of the auction.
If a Seller does not require you to waive your cooling off rights, you will usually have a timeframe of 5 business days to pull out of the Contract. If you do decide to pull out, you will forfeit 0.25% of the purchase Price (however this amount can be changed, so be sure to check the Contract!).
Do I need finance approval before exchange?
It’s important that you speak to your bank or broker and ensure that you have the necessary approvals in place before exchange. As mentioned above, your rights to ‘walk away’ from the purchase after exchange are extremely limited (if any), so to avoid losing your deposit and paying damages and other costs please make sure that you have your finance approval sorted.
It is very uncommon in our experience to exchange subject to financial approvals being obtained for residential property transactions, in recent times.
When will I receive the settlement funds from my sale?
If your property is eligible to settle via an electronic settlement platform like PEXA, you should receive funds within 24-48 hours of settlement occurring. However, if a manual settlement is required funds will generally take around 3-5 business days to clear (subject to bank’s clearing timeframes).
If you are considering buying or selling, the team at Terracon Legal is here to guide you through each step with clarity and practical advice tailored to your circumstances.