Selling your home is a major financial undertaking. Securing the best price matters, but a smooth and legally compliant conveyancing transaction is just as important. This article provides an overview of the legal process and common seller obligations across Australia. The information is general only, and each state and territory has its own laws and requirements. Always obtain advice specific to you and your property’s location.
Step 1: Prepare Legal Documents
You will need core legal documents prepared before a buyer can validly sign a contract, and in some states, before you even start marketing your property.
The contract of sale
The contract is the key legal document governing the transaction. It sets out the parties, price, deposit, settlement date, standard conditions, and any special conditions. Generally, a solicitor or conveyancer will prepare the contract of sale and any required disclosure material; however, in some states, it is common for the real estate agent to prepare the contract. It is always recommended that your conveyancer or solicitor be involved in the process to ensure the contract is compliant and protects your interests.
Seller’s duty of disclosure
When selling property, you have a duty of disclosure and must provide accurate information so a buyer can make an informed decision. Disclosure obligations vary between jurisdictions, and some states require the inclusion of prescribed documents.
- Victoria – A vendor’s statement (or ‘section 32’) disclosing information such as planning and zoning, rates, easements, building permits and owners’ corporation details must be provided to a potential buyer before a contract is signed.
- New South Wales – the contract of sale must have prescribed documents attached, such as a zoning certificate, sewer diagram and title documents.
- Queensland – From 1 August 2025, a signed form 2 seller disclosure statement plus prescribed certificates must be given to the buyer before they sign the contract (or before the hammer falls at auction).
- South Australia – a Form 1 vendor’s statement, covering title particulars, zoning, statutory notices, rates and cooling‑off rights must be included.
Other jurisdictions use different models, including more limited pre‑contract disclosure and a stronger emphasis on the buyer’s due diligence.
Key disclosure areas to cover
Common areas that typically need to be disclosed or accurately represented by the seller include:
- Title details and encumbrances: Confirming you are the legal owner and listing mortgages, easements, covenants and other interests on the title.
- Outgoings: Providing current information about council rates, water rates and land tax.
- Building approvals: Having paperwork for major renovations or structures, particularly recent work and anything that required council approval.
- Pool/spa compliance: Supplying a valid pool safety certificate or a notice of non‑compliance (commonly in states such as New South Wales and Queensland).
Preparing contracts and disclosure information takes time, and mistakes or omissions can give a buyer the right to cancel a sale. Engaging your solicitor or conveyancer early ensures you can discuss your specific property and ensure that your obligations are properly met.
Step 2: Accepting an Offer
Once a buyer is found, the agent will present their offer and terms. Common buyer conditions include:
- Subject to finance approval.
- Subject to satisfactory building and pest inspections.
- Requests for a longer or shorter settlement period.
Your conveyancer or solicitor will help you to understand these conditions and negotiate changes where necessary.
When contracts become binding
Generally, when residential property is sold at auction, the contract is binding immediately on the fall of the hammer, and cooling-off rights do not apply.
If the property is sold by private treaty, the point at which contracts are legally binding (unconditional) depends on where the property is located, the relevant cooling-off rights in that jurisdiction, and any specific conditions of the contract (for example, a contract that is subject to finance or satisfactory pest and building reports). You should discuss the relevant laws and how they impact your sale with your conveyancer or lawyer.
Cooling‑off periods
In many private treaty residential sales, buyers have statutory cooling‑off rights. The length and availability of a cooling-off period depend on the property’s jurisdiction and sale type, as do the formal requirements for exercising such rights. During the cooling-off period, the buyer may terminate the contract for any reason and, in doing so, may forfeit a small amount of the price or deposit.
In some states, a buyer can waive or shorten their cooling‑off rights by signing a prescribed form or obtaining legal advice – for example, a section 66W certificate in New South Wales. This can provide greater certainty for you as the seller.
Step 3: Preparing for Settlement and Discharging Your Mortgage
The time between exchange and settlement is typically 30-90 days, although this can be varied in the contract. During this period, the buyer finalises finance and checks, while your conveyancer or solicitor prepares to transfer ownership.
Discharging your mortgage
If your property is mortgaged, the loan must be paid out and the mortgage removed from the title at settlement. Key steps include:
- Notifying your lender: Your conveyancer or solicitor will usually request the bank’s discharge of mortgage paperwork as soon as contracts are exchanged.
- Lender processing: The bank calculates the payout figure as at the settlement date and organises to attend the electronic settlement. Delays in submitting discharge documents are a common cause of settlement problems.
Final adjustments
Adjustments for property outgoings (council rates, water rates, strata levies, etc.) are calculated and agreed upon by the parties’ legal representatives so that the buyer and seller are responsible for their respective shares on settlement. As a seller, you are generally liable for outgoings up to and including the settlement day, and the buyer reimburses you for any amounts paid in advance beyond that date.
Step 4: Final Inspection and Settlement Day
Final inspection
Most standard residential contracts allow the buyer a final (pre‑settlement) inspection, usually in the last few days before settlement.
Your obligations typically include:
- Ensuring the property is in substantially the same condition as at the contract date, allowing for fair wear and tear.
- Leaving all fixtures and inclusions listed in the contract and completing any agreed repairs.
Inspection rights and what constitutes an acceptable condition are governed by the contract and may vary between jurisdictions.
Settlement day
In most jurisdictions, settlement now occurs electronically through an online workspace such as PEXA. Settlement typically involves:
- Transfer of ownership and registration of the transfer at the land titles office.
- Discharge of your mortgage and payment of the payout figure to your lender (if applicable).
- Payment of stamp duty by the buyer.
- Transfer of the balance of sale proceeds into your nominated bank account.
Once settlement is confirmed, your conveyancer will notify you and your agent so that keys can be released to the new owner.
Seller Checklist for a Smoother Sale
- Appoint a conveyancer/solicitor early: Do this before listing the property so your contract of sale and disclosure documents can be prepared in good time.
- Collect disclosure documents: Gather rates notices, building approvals, compliance certificates and any other required paperwork early to reduce the risk of buyer rescission or dispute.
- Review your agent’s agreement: Check commission, marketing costs and termination terms before you sign.
- Notify your lender: Arrange discharge of mortgage documents as soon as contracts are binding to avoid settlement delays.
- Check tax and ATO clearance: Ask your conveyancer/solicitor or tax adviser whether you need an ATO clearance certificate under the foreign resident capital gains withholding rules.
- Clear and clean the property: Remove belongings, rubbish and debris and complete any agreed works before the final inspection so the buyer can confirm the property meets its contractual condition.
This information is general only and does not take into account your personal circumstances or property. Rules and conveyancing processes differ between states and territories, so you should obtain current advice from a solicitor or conveyancer about your specific situation. You may also need to consult a tax advisor regarding the financial and taxation implications of your proposed property sale.
If you or someone you know wants more information or needs help or advice, please call (08) 8232 8446 or email [email protected].