MMS Briefs: SELLING PROPERTY – VENDOR’S OBLIGATIONS

Conveyancing is the process of formally transferring the ownership of property from the vendor (seller) to the purchaser (buyer).

If you are thinking of selling your home you should contract your solicitor as soon as possible to ensure that you comply with your legal obligations.

If you fail to comply, the purchaser may be entitled to end the contract and receive their deposit back.

There are two main obligations imposed on vendors (sellers) of property in NSW – the obligation to provide a copy of the proposed contract for sale at the point of sale, and the obligation to disclose n the contract certain information about the property.

Contract for sale

Residential property in NSW cannot be advertised for sale until a contract of sale has been prepared. Putting your house on the market without having a proper contract is an offence for which you can be fined.

So regardless of whether you are selling through an agent or selling privately this is the critical first step in the process.

The duty of disclosure and vendor warranties

There is a general law duty for vendors to disclose certain information about the property.

Prescribed warranties Prescribed warranties are promises that the law says you must make about the property in relation to issues with the land that would be undetectable by the purchaser viewing the property. This includes promising that unless you disclose it in the contract the land is not subject to any adverse affectations.

Put simply if it isn’t disclosed in the contract then you promise it isn’t there.

For example you promise that:

· there is no private right of way over the land

· there is no easement for drainage

· there is no council sewer line

· there is no restriction on how the land can be used

· there is nothing about the buildings on the land which would allow Council to make a demolition order

· there are no plans by the government to re-align or widen the road or to compulsorily acquire the land.

This is not an exhaustive list of the promises you are making and there are additional promises which apply to rural land. Your solicitor or conveyancer will advise you if there are any specific issues you should be aware of.

Prescribed documents The law requires that the contract includes certain ‘disclosure’ documents known as prescribed documents. These documents include:

· Planning and zoning certificates which are issued by local council and show the planning controls relevant to the property, and other things such as whether the land is in bush fire prone or whether it is in a flood zone.

· Title search which confirms that you are the owner of the property and lists any encumbrances such as mortgages, easements or restrictions on the land.

· Deposited Plan which is a diagram of the land that is held by the government Land Registry office. This allows the purchaser to identify the land they are purchasing.

· Drainage diagram which discloses where the council sewer line is in respect of the property.

· Easements and restrictions - documents which created these.

· Tenancy agreement – if there is a tenant in the property.

· Pool Certificate issued by the local Council which states whether or not the pool complies with the government’s pool safety requirements.

Given the importance of having the contract in order before you sign, especially in circumstances where you are relying on the sale proceeds to finance the purchase it is vital that a solicitor or licensed conveyancer prepares the contract.

At Moin Morris Schaefer we have a dedicated and highly experienced conveyancing team of solicitors, licensed conveyancers and paralegal staff ready to guide you through the process and make the experience of selling your property stress free.