A contract for sale of land must accurately define what is being sold. The sale may be extended beyond a parcel of land to include buildings on the land, chattels and choses in action. In identifying the subject matter, parties will need to consider whether there are any encroachments. They will also need to consider the GST treatment of the sale — whether the supply of land is input taxed, whether it is a supply of a going concern or whether the margin scheme will be applied. See Identification of subject matter.

In New South Wales, a contract prepared by a vendor is required to have attached to it prescribed documents under the Conveyancing (Sale of Land) Regulation 2010 (NSW) .

In addition to the prescribed documents, the purchaser should consider making further enquiries regarding the building and the proposed use of the building. See Pre-contract enquiries.

In Victoria, a vendor is required to prepare a statement under s 32 of the Sale of Land Act 1962 (Vic), which must be provided to the purchaser before the purchaser signs the contract. The statement must be signed by the vendor or an agent of the vendor (and signing may be done electronically).

A vendor is also required to provide a due diligence checklist where the land is vacant residential land (being vacant land on which the building of a residence is permitted) or the land contains a residence from the time the land is offered for sale. There is an exemption from this requirement where the vendor has engaged a licensed estate agent to act on its behalf, in which case that estate agent is responsible for ensuring that a due diligence checklist in the approved form is made available to a purchaser.

In addition, the purchaser should consider making further enquiries regarding the building and the proposed use of the building. See Pre-contract enquiries.

While Queensland does not have the same level of pre-contract disclosure or warranties as New South Wales, there are nevertheless certain disclosure requirements that practitioners need to be aware of.

In addition, the purchaser should consider making further enquiries regarding the building and the proposed use of the building. See Pre-contract enquiries.

In Western Australia, there are no general statutory vendor disclosure obligations. The level of contract disclosure commonly depends on negotiation between the parties.

The purchaser should consider making appropriate enquiries regarding the building and the proposed use of the building before entering into the contract. See Pre-contract enquiries.

In South Australia, a vendor is required to serve on a purchaser a vendor’s statement under s 7 of the Land and Business (Sale and Conveyancing) Act 1994 (SA). The statement is not attached to the contract and can be served either before or after the contract is entered into. However, it must be served at least 10 clear days before the date of settlement. The statement must be signed by or on behalf of the vendor and by or on behalf of the vendor’s agent.

In addition, the purchaser should consider making further enquiries regarding the building and the proposed use of the building. See Pre-contract enquiries.

There is no statutory vendor disclosure regime in Tasmania, other than the relevant operation of the Competition and Consumer Act 2010 (Cth).

Pre-contract disclosure and cooling off reforms in Tasmania have been long reviewed and long postponed. Previous attempts at reform have been poorly managed. Two failed legislative attempts in Tasmania have been criticised by stakeholders as poorly executed, inflexible and unwieldy. Part 10, Div 2 of the Property Agents and Land Transactions Act 2005 (Tas) which provided for a scheme of vendor disclosure was repealed never having been proclaimed.

The Tasmanian Law Society and the Real Estate Institute of Tasmania publish a standard form contract which is almost always used for property sales. Use of that contract is not compulsory.

A copy of the contract can be accessed from the Tasmanian Law Society.

Changes to the standard Law Society Contract effective from 1 April 2017 provide for vendor disclosure and supporting warranties, supporting the right of parties to contract out of standard provisions.

The purchaser should make careful enquiries regarding the title, building and the proposed use of the building. See Pre-contract enquiries.

In the Northern Territory, under s 64 of the Law of Property Act (NT), a purchaser of land is entitled, at the cost of the vendor, to receive sufficient particulars of title to enable the purchaser to prepare the appropriate instrument that gives effect to the sale. Under ss 60 and 61 of the Land Title Act (NT) these particulars are generally those which are sufficient to identify the lot to be transferred, the value of the lot and the details of any consideration.

In the Australian Capital Territory, there is no statutory pre-contractual seller disclosure regime like in some jurisdictions. However, a seller of residential property commits an offence under s 10 of the Civil Law (Sale of Residential Property) Act 2003 (ACT) if the proposed contract for sale of the property is not available for inspection by a prospective purchaser at all reasonable times when an offer to buy the property may be made to the seller.

The purchaser should consider making further enquiries regarding the building and the proposed use of the building.

In New South Wales there is a statutory regime in the Conveyancing Act 1919 (NSW) and the Conveyancing (Sale of Land) Regulation 2010 (NSW) which provides for prescribed documents to be attached to the contract and provides for prescribed warranties, a breach of which can give rise to rescission. The Law Society of New South Wales and The Real Estate Institute publish a standard form of contract, which can be modified to meet the particular circumstances of a transaction. The standard contract has been used for many years and is well recognised in the conveyancing industry. Practitioners may use the Law Society of NSW — Contract for sale of land — 2016 Edition. The 2016 edition of the Contract for Sale and Purchase of Land has been amended as a consequence of the introduction of subdiv 14D of Sch 1 to the Taxation Administration Act 1953 (Cth). The 2016 contract includes a new cl 31. The 2005 and 2014 contracts are no longer to be used.

See Contractual requirements.

In Victoria, s 32 of the Sale of Land Act 1962 (Vic) requires a vendor to provide to the purchaser prescribed information relating to the property. Where the vendor fails to supply all the required information, or provides false information, the purchaser may rescind the contract before settlement unless the court is satisfied that the vendor has acted honestly and reasonably and ought to be excused for the contravention and the purchaser is substantially in as good a position as if the Sale of Land Act 1962 (Vic) had been complied with.

In Victoria, estate agents are limited in the type of contract that they may use, but legal practitioners are free to use any form of contract. However, it is common practice to follow the form set out in the Estate Agents (Contract) Regulations 2008 (Vic). The Law Institute of Victoria publishes a copyright form of contract of sale based on the form contained in the Estate Agents (Contract) Regulations 2008 (Vic), and this form is often used as a matter of convenience.

See Contractual requirements.

In Queensland, the statutory regime that deals with the practical rights and obligations in the sale and purchase of land and property are the Property Occupations Act 2014 (Qld) and the Body Corporate and Community Management Act 1997 (Qld). Similar to New South Wales legislation, the Property Occupations Act 2014 (Qld) and the Body Corporate and Community Management Act 1997 (Qld) place obligations on the parties to a contract to attach a disclosure statement (in the case of a unit in a community titles scheme) and insert a prescribed statement in the contract and provide for remedies in the case of a breach on any legislative conditions. The Queensland Law Society and the Real Estate Institute of Queensland publish a standard form contract which provides for a set of standard terms and conditions for the sale and purchase of residential, commercial and community title scheme property and land.

A copy of the contract can be accessed from the Queensland Law Society.

See also Contractual requirements.

In Western Australia, the standard form contract comprises the “Contract for Sale of Land or Strata Title by Offer and Acceptance”, together with the “Joint Form of General Conditions for the Sale of Land”.

See Contractual requirements.

In South Australia, s 7 of the Land and Business (Sale and Conveyancing) Act 1994 (SA) requires a vendor to provide to the purchaser prescribed information relating to the property. Under s 5 of that Act, a purchaser (other than a corporate body buying non-residential land (and some other exceptions)) is entitled to “cool off” or rescind the contract any time before the expiration of two clear business days after the vendor’s statement has been served. Where the vendor fails to supply all the required information, or provides false information, the purchaser may apply to a court for orders that the contract be rescinded or for damages in appropriate cases.

In South Australia, there is no single standard form of contract. Copyright contract forms are produced by the Real Estate Institute of South Australia, the Law Society of South Australia, the Australian Institute of Conveyancers (SA) and the Society of Auctioneers and Appraisers (SA) for use by their members, but legal practitioners are free to draft their own contracts.

See Contractual requirements.

In Tasmania, there is no statutory code regulating rights and obligations in the sale and purchase of land comparable to the legislation that exists in most other states.

The current Tasmanian Standard Form Contract for the Sale of Real Estate reflects the "caveat emptor" premise to property sales of the common law but does provide for voluntary disclosure made by a vendor.

See Contractual requirements.

In the Northern Territory there is currently a standard form of contract for the sale of land which has been created by the Law Society of the Northern Territory and approved by the Registrar of Land, Business and Conveyancing Agents for use by licensed agents contracting for the sale of land under s 121A of the Agents Licensing Act (NT).

See Contractual requirements.

In the Australian Capital Territory, the Civil Law (Sale of Residential Property) Act 2003 (ACT) and the Civil Law (Property) Act 2006 (ACT) provide for certain conditions and documents to be included in the contract. Recent case law has established that the words in the legislation “forms part of” means that the documents are to be physically part of the contract: Acton Investments (ACT) Pty Ltd v Batticcotto .

The ACT Law Society publishes a standard form of contract which can be modified to meet the particular circumstances of a transaction. The standard contract has been used for many years and is well recognised in the conveyancing industry.

Contract terms are a combination of the standard provisions and any special conditions. Special conditions are added by practitioners to delete, modify or add to the standard provisions. Care is required when adding special conditions to ensure that terminology is consistent with that of the standard provisions and there is no internal inconsistency in drafting. See Contract terms.

A cooling off statement is a prescribed form under Sch 5 to the Conveyancing (Sale of Land) Regulation 2010 (NSW). It is printed as part of the standard provisions, thereby complying with s 66X of the Conveyancing Act 1919 (NSW). It is only required for the sale of residential property. It is not required where a statement under s 66W of the Conveyancing Act 1919 (NSW) is given, waiving the cooling off period. If a purchaser exercises its rights, after exchange, under s 66U of the Conveyancing Act by serving a notice, the contract is rescinded and the purchaser forfeits 0.25% of the purchase price. Under s 66ZB , there are similar provisions for options to purchase residential property.

See Exchange and cooling off.

In Victoria, s 31 of the Sale of Land Act 1962 (Vic) provides that a three day cooling off period applies to a residential contract for the sale of land, with a number of exceptions.

A cooling off statement must be contained in a conspicuous location on any contract to which the cooling off rights apply. It is contained on the front page of the standard form contract.

Where the purchaser exercises its right to terminate the contract, then the purchaser is entitled to a refund of the deposit, except for the amount which is the greater of $100 or 0.2% of the purchase price, which may be retained by the vendor.

See Exchange and cooling off.

In Queensland, a cooling off period is provided for by s 166 of the Property Occupations Act 2014 (Qld), which allows for a period of five business days, starting from when the buyer received a copy of the contract signed by both parties from the seller, during which the buyer can terminate the contract. If the buyer terminates the contract during the cooling off period, the seller is entitled to 0.25% of the purchase price. The cooling off period can be waived or shortened by a buyer by written notice to the seller. The cooling off period only applies to the sale of residential property in Queensland and does not apply to certain contracts, including but not limited to where contract is formed on a sale by auction: ss 160, 166-167, Property Occupations Act 2014 (Qld).

See Exchange and cooling off.

There is no statutory provision for a cooling-off period in Western Australia.

See Exchange and cooling off.

In South Australia, s 5 of the Land and Business (Sale and Conveyancing) Act 1994 (SA) gives a purchaser (other than a corporate body buying residential land, and with some other exceptions) the right to “cool off” or rescind the contract any time before the expiration of two clear business days after the vendor’s statement has been served in accordance with section 7 of that Act. The right to “cool off” is not only limited to purchasers of residential land, however the right is not available if the land is bought at an auction or if the purchaser has, before entering into the contract, received independent advice from a legal practitioner and the legal practitioner has signed a certificate in the form approved by Form 3, found in Sch 1 of the Land and Business (Sale and Conveyancing) Regulations 2010 (SA) (Form 3) as to the giving of that advice.

A cooling off notice must be in writing and must be given to the vendor in accordance with s 5 of the Land and Business (Sale and Conveyancing) Act 1994 (SA).

Where the purchaser exercises its right to terminate the contract, the vendor is entitled to retain any deposit not exceeding $100.

See Exchange and cooling off.

There are no automatic or statutory cooling off periods in Tasmania.

The changes to the standard Law Society Contract effective from 1 April 2017 provide for a cooling off period, supporting the right of parties to contract out of the default cooling off provision.

Contracts subject to conditions precedent are common in Tasmania. The standard Law Society Contract makes provision for the common conditions precedent in Tasmania:

• finance;

• sale by purchasers; and

• building inspection.

See Exchange and cooling off.

In the Northern Territory, there is no statutory provision for a cooling off period for the purchase of any real estate. However, the form of Contract for the Sale of Land (approved by the Law Society of the Northern Territory and the Registrar of Land, Business and Conveyancing Agents) provides that a cooling off period of 4 working days applies (see cl 30). This results in a cooling off period applying in most transactions, due to the requirement under the Agents Licensing Act (NT) that agents and conveyancers use only that form of contract when preparing a contract for signature by a proposed purchaser. Whilst legal practitioners are not obliged to use this form of contract, it is common for them to use it for standard residential and smaller commercial properties.

See Exchange and cooling off.

In the Australian Capital Territory there is a cooling off period for every contract for sale of residential property provided for by s 12 of the Civil Law (Sale of Residential Property) Act 2003 (ACT). The cooling off period is a period of 5 working days, starting from when the contract is made, during which the buyer can rescind the contract. If the buyer rescinds the contract during the cooling off period, the buyer forfeits 0.25% of the purchase price.

As mentioned above, the cooling off period only applies to the sale of certain residential property (see s 8 of the Civil Law (Sale of Residential Property) Act 2003 (ACT)). Further, it does not apply if the buyer is a corporation, the property is sold by auction or tender, or if the buyer waives the cooling off period under s 13 of the Civil Law (Sale of Residential Property) Act 2003 (ACT). Seller’s often request that the cooling off period is waived by the buyer by requesting that a certificate under s 17 of the Civil Law (Sale of Residential Property) Act 2003 (ACT) be provided at exchange.