Conveyancing Act 1919 No 6
Current version for 1 December 2019 to date (accessed 6 August 2020 at 02:12)
Part 4 Division 8
Division 8 Sale of residential property
66P   Definitions
(1)  In this Division—
agent, in relation to the sale of residential property, includes any agent or representative named in the contract for the sale of the property.
barrister has the same meaning as it has in the Legal Profession Uniform Law (NSW).
business day means any day except Saturday or Sunday or a day that is a public or bank holiday throughout the State.
disclosure statement has the meaning given by section 66ZM.
off the plan contract has the same meaning as in Division 10.
purchaser includes a prospective purchaser.
residential property has the meaning given by section 66Q.
solicitor has the same meaning as it has in the Legal Profession Uniform Law (NSW), and includes a licensed conveyancer.
vendor includes a prospective vendor.
(2)  References in this Division to a particular time are to be construed according to Sydney time.
66Q   Meaning of “residential property”
(1)  For the purposes of this Division, residential property is—
(a)  land on which are situated (or in the course of construction) not more than two places of residence, and no other improvements, or
(b)  vacant land on which the construction of a single place of residence alone is not prohibited by law, or
(c)  a lot or lots (including a proposed lot or lots) under the Strata Schemes Development Act 2015, comprising not more than one place of residence alone, whether constructed or in the course of construction, and including any place used or designed for use for a purpose ancillary to the place of residence.
(2)  Residential property does not however include—
(a)  land or a lot that is used wholly for non-residential purposes, or
(b)  land that is more than 2.5 hectares in area (or such other area as may be prescribed).
(3)  For the purposes of this section, place of residence means a building or part thereof used, or currently designed for use, as a single dwelling only, and includes outbuildings or other appurtenances incidental to any such use.
66R   Preparation of proposed contract for sale of land
(1)  A vendor who, by a written or broadcast advertisement—
(a)  indicates that residential property is for sale or is to be auctioned at any future time, or
(b)  offers to sell residential property, or
(c)  invites an offer to purchase residential property, or
(d)  offers to grant an option to purchase residential property, or
(e)  invites an offer to take an option to purchase residential property,
is guilty of an offence unless the required documents are all available for inspection at the same place by any purchaser.
Maximum penalty—10 penalty units.
(2)  For the purposes of this section, the required documents are—
(a)  a copy of the proposed contract for the sale of the property (excluding particulars of the purchaser and purchase price), and
(b)  the documents required by section 52A to be attached to the contract before signature by the purchaser, and
(c)  in the case of an offer or invitation relating to an option—a copy of the proposed option document (excluding particulars of the purchaser and consideration for the option), and
(d)  in the case of an off the plan contract—a copy of the proposed disclosure statement.
(3)  This section applies to sales by way of private treaty, auction or tender (including tender by post).
66S   Cooling off period
(1)  Subject to section 66T, there is to be a cooling off period for every contract for the sale of residential property, during which the purchaser may exercise rights under section 66U.
(2)  The cooling off period commences when the contract is made.
(3)  The cooling off period ends at 5 pm—
(a)  on the tenth business day after the day on which an off the plan contract was made, or
(b)  in any other case—on the fifth business day after the day on which the contract was made.
(4)  The cooling off period may be extended by a provision in the contract, or by the vendor in writing before the end of the cooling off period.
(5)  The cooling off period may be shortened by a provision in the contract, or by a separate written or oral agreement of the parties, but the provision or agreement does not take effect unless and until the purchaser gives to the vendor (or the vendor’s solicitor or agent) a certificate that complies with section 66W.
(6)  The extension or shortening of the cooling off period may be effected under subsection (4) or (5) before, at or after the time the contract is made.
(7)  The regulations may prescribe the maximum length of time by which the cooling off period for an off the plan contract may be shortened under subsection (5).
66T   No cooling off period in certain cases
There is no cooling off period in relation to a contract for the sale of residential property if—
(a)  at or before the time the contract is made, the purchaser gives to the vendor (or the vendor’s solicitor or agent) a certificate that complies with section 66W, or
(b)  the property is sold by public auction, or
(c)  the contract is made on the same day as the property was offered for sale by public auction but passed in, or
(d)  the contract is made in consequence of the exercise of an option to purchase the property, other than an option that is void under section 66ZG.
66U   Cooling off rights
(1)  The purchaser under a contract for the sale of residential property may serve a written notice to the effect that the purchaser rescinds the contract.
(2)  The notice may only be served during the cooling off period, but is ineffective if served after completion.
(3)  The notice of rescission must be signed by—
(a)  the purchaser or the purchaser’s solicitor, or
(b)  if there is more than one purchaser, each of the purchasers or their respective solicitors.
(4)  The notice of rescission must be served on—
(a)  the vendor or the vendor’s solicitor, or
(b)  if there is more than one vendor, any one of the vendors or the solicitor of any of them, or
(c)  the agent of the vendor or vendors.
(5)  Service of a notice under this section may be effected in accordance with section 170 or at the address of the vendor shown in the contract or in accordance with the service provisions in the contract.
66V   Consequences of rescission
(1)  On service of an effective notice of rescission in accordance with section 66U in relation to a contract for the sale of residential property, the contract is to be taken to be rescinded ab initio, but subject to the rights and obligations conferred by this section.
(2)  The purchaser forfeits 0.25 per cent of the purchase price of the property to the vendor.
(3)  The amount forfeited may be recovered from any deposit paid under the contract.
(4)  If the deposit is insufficient, the balance of any amount forfeited may be recovered from the purchaser as a debt in any court of competent jurisdiction.
(5)  The balance of the deposit remaining after deduction of any amount forfeited is payable to the purchaser.
(6)  Subject to subsection (7), neither the vendor nor the purchaser is liable to pay any other sum for damages, costs or expenses.
(7)  Either party is entitled to make a claim for—
(a)  such compensation, adjustment or accounting as is just and equitable between the vendor and purchaser where the purchaser has received the benefit of possession of the property, or
(b)  the payment of damages, costs or expenses arising out of a breach of any term, condition or warranty contained or implied in the contract (other than a term, condition or warranty referred to in section 52A),
but not so as to affect rights and obligations arising under this Division.
(8)  The vendor may agree to waive any rights regarding forfeiture under this section.
(9)  Duty ceases to be payable on a contract rescinded under this Division, and any duty already paid on it is refundable under the Duties Act 1997.
(10)  In this section, deposit includes any amount paid by the purchaser in relation to the contract or on account of the purchase price of residential property.
66W   Certificates
(1)  A certificate referred to in section 66S or 66T complies with this section if it—
(a)  is in writing, and
(b)  is signed by a solicitor or barrister, other than—
(i)  a solicitor acting for the vendor, or
(ii)  any other solicitor employed in the legal practice of a solicitor acting for the vendor, or
(iii)  any other solicitor who is a member or employee of a firm of which a solicitor acting for the vendor is a member or employee, and
(c)  indicates the purpose for which the certificate is given, and
(d)  contains a statement to the effect that the solicitor or barrister explained to the purchaser the effect of the contract, the nature of the certificate and the effect of giving the certificate to the vendor.
(2)  If the purchaser is a corporation, the reference in subsection (1)(d) to the purchaser is to be read as a reference to an officer of the corporation or a person involved in the management of its affairs.
(3)  A document in the form of a certificate that complies with subsection (1)(c) and (d) and that purports to have been signed by a solicitor or barrister is to be regarded, and may be relied on by the vendor, as a valid certificate for all purposes.
(4)  A certificate may be given in a way prescribed by section 170.
66X   Contract to contain statement regarding cooling off period
(1)  A statement in the form prescribed by the regulations, relating to the cooling off period, is required to be included in every contract for the sale of residential property.
(2)  If a contract does not contain the statement required under this section, the purchaser may serve a notice of rescission under section 66U, except that the notice may be served at any time before completion (whether or not the cooling off period has expired).
(3)  On service of the notice, section 66V applies, except that the purchaser is not liable to the forfeiture provided for under that section.
(4)  Service of the notice is ineffective if it is served after completion.
(5)  This section does not apply where a certificate under section 66W has been given for the purposes of section 66S or 66T.
66Y   Operation of Division 8
(1)  This Division extends to residential property under the provisions of the Crown Land Management Act 2016 or any other Act, whether or not it deals with the conveyance or transfer of land.
(2)  This Division does not apply to a contract made before the commencement of this Division (as inserted by the Conveyancing (Sale of Land) Amendment Act 1990).
(3)  This Division, or a prescribed provision of this Division, does not apply to prescribed vendors, purchasers, contracts or land or in prescribed circumstances.
(4)  A provision of a contract for the sale of land or any other agreement or arrangement is void if it would, but for this subsection, have the effect of excluding, modifying or restricting the operation of this Division.
(5)  This Division does not affect any right or remedy available otherwise than under this Division.
(6)  This Division binds the Crown.
(7)  Proceedings for an offence under section 66R may be brought before the Local Court, and may not be instituted except with the consent in writing of the Minister (which is to be presumed to have been given unless the contrary is proved).