Legal Procedures for Selling Residential Property in New South Wales

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LAW
Name
Course
Date

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Question1
To sell a residential property, it is advisable for one to start the process by appointing a
solicitor or a lawyer to represent him in all the legal procedures required under law. Once that
has been done, the owner would instruct the representative to prepare a contract of sale for the
property. The reason for appointing a solicitor is because buying and selling a residential estate
requires adherence to many laws and would require a person who can understand them well. It is
the reason why the legal representatives rightly play an important role in the process. Under
section 149 of the Fair Trading Act 1986 (FTA), the contract of sale must include a copy of the
documents containing the title, current zoning certificate, and drainage diagram as provided
under s149.1 The zoning certificate is provided by the local council.2 Additionally, if the property
has a spa or a swimming pool, then other different certification forms need also to be attached.
Moreover, if the owner of the property fails to attach any of the required contractual documents
to the sale contract, the purchaser might be permitted to cancel the sales agreement within 14
days of exchange, the payment has taken place.
Question 1 (2)
Section 47 of the Property, Stock and Business Act 2002 requires a real estate agent
acting for a client in a sale or purchase of a property to disclose certain relationships and benefits
they may get in connection to the sale, client or a buyer when providing the service.3 An agent
must make such disclosers to their client and to the prospective buyers where possible. What the
agent need to disclose is whether the client is their family member, business associate, he will
receive an consideration such as money and the value of such benefits among others.
1 New South Wales Fair Trading Act 1986
2 The Tenancy Handbook (Office of Fair Trading, 2006)
3 Property, Stock and Business Agents. Act 2002 No 66.

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Question 1 (3)
The reason why a vendor must ascertain whether the property has any adverse affection is
because any defect in title affects the seller’s ability to pass an unencumbered title to the property
during sale. It also include those matters that detract the vendors right to have a say on the estate
he has accepted to sell or the issues which prohibit the seller from conveying his title free of
encumbrance. It was evident in the case Dormer V Solo Investments (1974).4
Question 1(4)
It would be unwise to rely upon a three-year-old s149 Certificate because since February
2009, section 149 certificates have had effective progressive changes and what was there three
years ago may not be effective now.5
Question 2 (1)
Once a contract has been signed and exchanged, a vendor is locked into the sale of his
property under the contract agreement terms.6 It is very difficult for a seller to back out of a
contract after the contract has been signed even if you receive a higher offer. In many cases, the
law allows the buyers to back out but not the seller. However, even if you have signed and
exchanged the contract, if the contract contingencies principle, then there are still room for
wiggling. Contingencies help in covering the obligations that both the buyer and the seller must
meet before closing the transaction. For instance, if a buyer fails to the agreed deadline, a seller
may be legally able to terminate the sale. Additionally, the vendor could use the higher offer as a
backup. Though not guaranteed to work out in favor of the seller, it is worth trying. The seller
4 Dormer v Solo Investments Pty Ltd (1974) 1 NSWLR 428
5 Conveyancing (Sale of Land) Regulation 2010 (NSW).
6 New South Wales Fair Trading Act 1986