What Do I Need to Disclose When Selling My Home in Sydney?

Home sellers are often unsure of which aspects or issues relating to their property need to be disclosed to potential buyers when the property is on the market. Real estate agents can help sellers to distinguish between things that are required to be disclosed by law, and things that won’t have an influence significant enough to warrant full disclosure.

However, when it comes to selling property, anyone that has a few sales under their belt is likely to tell you that being upfront and honest mostly reaps rewards, both in terms of the profit that is earned on a sale, and on the trust earned from the buyer.

If you are planning on selling a property in Sydney, these are the things you should keep in mind.

1. Pre-contractual Disclosure Obligations

Don’t be discouraged by the jargon: in simple terms, pre-contractual disclosure agreements simply mean that a seller is required to disclose defects in the title of the property before sales contracts are signed. What exactly needs to be disclosed may vary from state to state but under common law, defects in title that need to be declared includes easements, covenants and leases. Should sellers not disclose these and damages arise from such non-disclosure, the seller may be held liable or, in some cases, the contract may even be terminated.

Covenants that may affect the value and use of the land need to be disclosed, as must leases where standing agreements remain in place for a period of time after the settlement has been completed.

Easements refer to sections of land registered under the property title that give someone else (who is not the owner of the land) the right to use the land for specific purposes. An example of this would be neighbours sharing a driveway, for instance.

In terms of zoning, certain states require the disclosure of factors that may affect the property in the case of a natural disaster or such. In South Australia, this means disclosing if a mining tenement exists over the property, while sellers in Victoria or New South Wales will have to disclose that their land is located in a zone that is prone to bushfires. If you are selling in New South Wales, you’ll also have to disclose the information if your land is located in a flood zone and, rather unusually, Tasmanian sellers will have to disclose that there are graves on their property, if that is the case.

Your real estate agent will be extremely helpful in assisting you to ensure that all pre-contractual disclosure obligations are met, but sellers can also consider enlisting the services of a conveyancer or property solicitor to make sure everything is in good legal standing.

2. Building Consent

As many as a third of buildings in Australia have some form of illegal building. What makes these structures illegal is the fact that building approval has not been received from the local council in the city or suburb, and should this approval and consent not have been given, this can lead to structures that are dangerous. Because any damage or injury arising from illegal building works are the responsibility of the owner (whose insurance is unlikely to pay for these damages, due to the illegal root that led to them) buyers will likely be unwilling to be interested in a property that has illegal structures built on it.

This disclosure also extends to neighbouring properties that might have applied for permits to do work on buildings trees or fencing that can affect the seller’s property. In this regard, sellers should disclose whether they withheld or gave consent for the changes mentioned, should disputes arise after the buyer has taken ownership of the property.

3. Property Defects

Especially if you are selling an older property, chances are that there might be repairs and renovations required before said property goes on the market. Real estate agents are a godsend in this regard, as they understand exactly what type of repairs will add genuine value to the property.

Most buyers will also ask that a professional home inspection is done in order to properly ascertain the state of the property and its features. While certain repairs may prove costly (repairs to the roof or plumbing, for example), these are absolutely necessary unless the homeowner is planning to sell the property as a fixer-upper.

In this case, sellers still need to disclose any defects that the property may have. These defects can include appliances and fixtures that don’t work, insect infestations, damp or structural problems with the home.

4. Sensitive Issues

Disclosing sensitive issues that don’t relate to the physical state of the property is a conundrum that some sellers, together with their real estate agents, have to navigate. Sensitive issues may include things like unnatural deaths or violent crime that may have occurred on the property. Each case is unique, but certain factors might help you and your agent to decide whether disclosing.

First off, sellers should consider what happened. Was there a murder or suicide on the property, and where on the property did the incident occur – inside the dwelling, or elsewhere on the property? How long ago did the event take place, and did the owner continue to live in the dwelling after the incident, and for how long? What kind of reaction can sellers expect from buyers upon learning about the event, and how is this news likely to affect the price that the seller is aiming for?

Keep in mind that the neighbours usually know about the sensitive matters mentioned in this section, and that the story will reach the ears of the new owner before long, who may be very upset that this information was not shared prior to the sale, and might even try to cancel the contract as a result.

Talk to your agent about what the right way to attend to sensitive aspects relating to the property would be. It might be prudent to reserve this information only for buyers that are seriously interested in purchasing the property.

5. Asbestos

Most Australian states require that home sellers disclose whether they currently have or could have asbestos on the property, as well as to disclose whether there has previously been asbestos on the property. Asbestos can pose serious health threats to the occupants of a property and, as such, there is a legal burden on the seller to be honest about this aspect.

Make sure what the law says in the state you are selling in, but keep in mind that opting not to disclose things that will affect the health and livelihood of the person that is buying your property will come with legal repercussions, should the fact become evident later on.

Home sellers in Sydney should remember that the New South Wales government maintains a register of properties that contain loose-fill asbestos insulation, in accordance with the Home Building Act of 1989. Checking whether a home has asbestos is as easy as accessing the Asbestos Insulation Register online, so there’s no use in trying to hide this issue from potential buyers.

What Happens If Something Isn’t Disclosed?

Ultimately, it is up to the seller and the real estate agent that is helping them to sell to decide which aspects of the property need to be disclosed to prospective buyers before they sign the sales agreement.

Certain things, like covenants, leases, easements and zoning issues, as well as asbestos and building consent need to be disclosed, as this is required by law. On the other hand, sellers are not required to disclose, for example, that they have rowdy neighbours.

It stands to reason that everything comes to light in the end, though, and for this reason your real estate agent will probably also advise that honesty is the best policy, if there is to be any semblance of trust between the seller and the buyers that are interested in acquiring the property.

In a worst case scenario, not disclosing faults or other issues could have legal ramifications down the road, or could lead to hefty fines or losing the sale altogether. Let your real estate agent guide you in this regard and if it is necessary, rope in other legal assistance to ensure that everything is done by the book.

Conclusion

The legal aspects surrounding the sale of a property leave most property sellers out of their depth. Luckily, real estate agents are well acquainted with the many legal requirements involved in the sale of a home. Still not sure what to disclose and what to keep to yourself? Let a qualified real estate agent, recommended by Perfect Agent give you advice you can trust.