Buying a Property – The Exchange of Contract

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Buying a Property – The Exchange of Contract 2018-03-21T17:01:10+00:00

column2-image1Cooling Off Contract

column2-image1Exchange of Contracts

“Cooling Off” Contract

A “cooling off” Contract is a conditional Contract where you as a purchaser (buyer) has a statutory period of 5 business days before being “locked into” the transaction. You may have second thoughts about purchasing the property. You can rescind the Contract during the cooling off period by exercising your right to “get out” of the Contract.

During the cooling off period you will need to arrange building and pest inspections (and a strata inspection report, if you are purchasing a strata property).

If you require a loan to complete the purchase, you will also need to obtain an unconditional loan approval, for your purchase of the property.  You should be aware that whilst you may have been “pre-approved” as a borrower your lender will probably require a valuation of the property, before giving you an unconditional loan approval. Any delay in your lender obtaining a Valuation will result in a delay in you obtaining an unconditional loan approval. You may require an extension of the cooling off period. The cooling off period must be extended “by the vendor in writing”.  Sometimes a vendor will agree to grant a purchaser up to 10 days for the cooling off period. There is no obligation on a vendor to grant a purchaser an extension of the cooling off period.

During the cooling off period you as a purchaser can change your mind about the purchase, however the vendor will not be able to change his mind about selling the property to you.

The “cooling off” system was originally designed to prevent “gazumping”, however gazumping can still occur before a Contract is exchanged.

You will need to pay a deposit to the agent (usually 10% of the purchase price), to exchange the Contract and secure the property. You will forfeit (lose) 0.25% of the purchase price if you decide not to proceed with the purchase beyond the cooling off period.

During the cooling off period it is important we:

  • Review the Contract and give you advice in relation to it
  • Liaise with your lender or mortgage broker and provide them with a copy of the front page of the Contract to confirm the purchase price. Remember your lender will usually order a Valuation of the property prior to granting you an unconditional loan approval.
  • Arrange an inspection of the strata records of the Owners Corporation, if you are buying a strata property (eg a unit, townhouse which is part of a strata plan).
    We provide you will a copy of any report we obtain. If any problems arise from the inspections, we will contact you and obtain your instructions, prior to the expiry of the cooling off period. You may also decide not to proceed with the purchase.

You may find that five days is not long enough to obtain an unconditional loan approval from your lender. We can always ask for an extension of the cooling off period, but you should be aware that there is no obligation on the vendor to grant the extension. The vendor himself must grant the extension in writing, neither his solicitor or the agent can grant the extension.

The Contract will not become unconditional until the cooling off period has expired. You will need to pay the balance of the deposit, usually to the agent, prior to the expiry of the cooling off period.

“Unconditional Contract”

Alternatively, you may choose not to enter into a “cooling off contract”. In this case, you will still need to arrange the necessary building, pest and/or strata reports as well as obtain an unconditional loan approval from your lender. The property remains on the market while you arrange the reports and obtain a loan approval.

We will review the Contract and discuss it with you. We will also negotiate any required amendments to the Contract with the vendor’s representative.

Once you are ready to exchange we will ask you to come into our office to discuss and then sign the Contact. We can then prepare the necessary certificate (known as a Section 66W Certificate) to confirm we have explained the Contract to you and you understand that once the Certificate is handed over on exchange you will not have any cooling off period and therefore you will be “locked in” to the Contract. We will then make arrangements to “exchange” the Contract with the vendor’s representative. You will need to pay the agreed deposit, usually to the agent.

Whilst you are waiting to exchange the Contract where a Section 66W Certificate is to be provided you have no obligation to purchase the property nor does the vendor have any obligation to sell the property to you. If you cannot obtain an unconditional loan approval or if any problems arise from the inspections, you will be able to “walk away” from the transaction. Any “holding” deposit you have paid to the agent will be refunded to you.


Who is a “Mortgage Holder” 2018-03-21T16:45:40+00:00

Your Lender (known as a “Mortgagee”), such as a Bank or Credit Union.

The Lender “holds” a Mortgage secured over the title to your property.

The Borrower is known as a “Mortgagor”.

The Lender holds the Certificate of Title for the property as security for repayment of the loan.

What is vacant possession? 2018-03-21T16:44:48+00:00

At settlement the vendor must completely move out of the property he is selling together with all of his furniture, rubbish and stored goods.

A purchaser will usually conduct a final inspection of the property on the morning of settlement to ensure that the property will be left vacant by settlement time.

All goods and/or rubbish stored under the house, in the garage or in the roof, should be removed prior to settlement.

What is an “off the plan” purchase? 2018-03-21T16:44:07+00:00

A Contract for the purchase of a block of land in a larger parcel of land that is yet to be subdivided or an apartment in a building yet to be built or is in the course of construction.

The Contract is conditional upon registration of the plan of subdivision or strata plan.

It is very important you are able to identify the block of land or the apartment in the proposed plan to ensure you purchase the correct property.

“Off the Plan” transactions usually span a long period of time, from the date of exchange of the Contract to the date of settlement.

Who notifies the authorities that I have purchased a property? 2018-03-21T16:43:18+00:00

The Department of Lands requires us to provide information in order the local Council, water authority and the Valuer General are advised of the purchase. In addition, we also advise these organisations that you have purchased the property. We advise the strata manager if you have purchased a strata property.

Do I have to attend the settlement of my sale/purchase? 2018-03-21T16:42:44+00:00

No, we attend the settlement for you as this is included in our fees. However, if you would like to attend your settlement and watch what happens, please let us know.

What is a “Torrens” Title? 2018-03-21T16:41:57+00:00
The “Torrens Title” system is a system of registration of title, designed in the 1850s by Robert Richard Torrens for the South Australian land title registry.  The NSW Department of Lands has been using the “Torrens” system since 1863.

A single register is created for each land holding. All details and interests affecting the land such as easements and covenants are then recorded on the register.

Each property in NSW is given a unique computerised reference number – a Folio Identifier consisting of the lot number in either a Deposited Plan or Strata Plan.

Contrary to a popular belief a “strata title” is a Torrens Title.

Do you have Professional Indemnity Insurance? 2018-03-21T16:41:12+00:00

Yes.  Professional Indemnity Insurance is compulsory for all solicitors in NSW.


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