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Terms and Conditions

UNDERSTANDING PRICING AND THE AGENT’S OBLIGATIONS.

Property advertising must not be misleading or deceptive. It is illegal for a seller or agent to misrepresent a property in any way when advertising or marketing that property, whether verbally or in writing and photographs.

Since 1 May 2017, if a property for sale includes a price, it must be listed as a single figure or a range of up to 10 per cent. The price cannot use any qualifying words or symbols, such as 'from', 'offers above', or '+'.

An agent must provide an estimated selling price that:

  • is reasonable
  • takes into account the sale prices of the three most comparable properties to the property for sale.

It is illegal for an agent to advertise or advise you of a price that is less than:

  • the seller's auction reserve price or asking price
  • a price in a written offer already rejected by the seller on the basis it is too low, or
  • the agent's current estimate of the likely selling price.

Agents must update the advertised price if it changes during the sales campaign.

If an agent does not comply with the above, then they are engaging in underquoting.

Statement of Information

The Statement of Information is an important resource for any home buyer and it is the first thing you should check once you have found a property you like.

It is a legal requirement for all residential properties for sale in Victoria to have a Statement of Information that includes:

  • an indicative selling price - this can be a single price or a price range of no more than 10 per cent
  • details of the three most comparable property sales - including the address, date of sale, and sale price. For information on when this does not have to be included, view the Comparable properties section on our Understanding underquoting page
  • the median house or unit price for the suburb - this can be for a period of between three to 12 months, and cannot be more than six months old.

Agents do not have to advertise a price, so you should use the indicative selling price as a guide to what the property might sell for. If the indicative selling price changes, agents must update the Statement of Information to keep it accurate and up-to-date.

This, along with the property and suburb information, can help you decide whether you are spending valuable time and effort on a property you have a realistic chance at and can afford.

You can get a Statement of Information:

  • at the property's open for inspection
  • by checking online advertising - agents often include it with the property listing as a 'Statement of Information' tab or a PDF you can download
  • from the agent - they must give it to you within two business days of your request.

Seller's reserve or asking price

The lowest price a seller is prepared to accept for their property is called the:

  • reserve price for an auction, or
  • asking price for a private sale.

The seller's reserve price is usually set on the day of the auction. It may be higher than the advertised price.

If a seller tells the agent of their asking or reserve price during the marketing campaign, the agent cannot advertise the property below that price.

If a seller does not give the agent an asking or reserve price, the property must not be advertised for sale at a price that is less than the agent's estimated selling price. This is the reasonable price the agent estimates a property is likely to sell for, based on the three most comparable property sales.

  

Auction language

 

On the market

The auctioneer may stop the auction and say they are 'going inside' or 'seeking advice or instructions' from the seller. They use this time to discuss the progress of the bidding with the seller.

If the bidding has reached or is close to the reserve price (the lowest price at which the seller will sell), the auctioneer will ask the seller if they will sell at the highest bid.

If so, the auctioneer will say the property is 'on the market'. Bidding may continue and the property will be offered to the highest bidder, at the seller's discretion.

 

Passed in

If bids do not meet the seller's reserve, the property may be 'passed in' or 'withdrawn from auction'. The highest bidder then gets first right to negotiate a price with the seller. If the highest bidder and seller cannot agree on a price, the estate agent may approach another bidder to negotiate a sale. If the seller cannot agree on a price with any buyer and they decide to leave the property on the market, they may offer it for private sale.

 
When is the property SOLD?

There is no legally binding contract until both buyer and seller have signed the contract of sale.

If you are the successful bidder at auction:

  • you will be offered a contract in the same terms that was on display before the auction. You cannot make the contract subject to any further conditions - for example, obtaining finance or having a longer settlement period, unless the seller agrees to them
  • you will be asked to sign the contract to make your formal offer to buy the property. The seller accepts your offer by also signing the contract
  • you must pay the deposit specified in the contract (unless otherwise agreed)
  • there is no cooling-off period.

When you and the seller have signed the contract and the deposit has been paid, the property has been sold and the sale is binding and enforceable.

The sale is then finalised at settlement when:

  • all checks have been made
  • the title and transfer documents have been exchanged
  • the balance of the purchase price has been paid.

 

Paying a deposit after auction

When you sign the contract of sale after an auction, you will need to pay a deposit. There are no laws about the amount of deposit but it is usually 10 per cent of the purchase price.

The method of payment will depend on the terms and conditions set by the selling agent. Before the auction, check with the agent how they want to accept payment for the deposit.

If you attend an auction with a bank cheque for a 10 per cent deposit, your cheque will be for 10 per cent of the amount you were prepared to pay for the property. This means that if you buy the property for less than you expected, your deposit will be more than 10 per cent.

If you want to pay a partial deposit, you can ask the seller before the auction if they will accept a part deposit with the remaining amount due on a specified date. This would require a change to the contract. The seller may or may not agree to this arrangement.

The deposit must be held by the seller's estate agent, conveyancer or legal practitioner in a trust account until the settlement date. The deposit can be released to the seller before settlement, if you agree.

A seller who does not have an estate agent and takes your deposit directly must:

  • give it to their legal practitioner or conveyancer to be held in trust, or
  • deposit it in a special purpose account in a deposit-taking institution authorised in Victoria. The account must be in both the seller's and your name.

 
Buying property at auction

You cannot make the contract subject to any further conditions - for example, obtaining finance or having a longer settlement period, unless the seller agrees to them; you will be asked to sign the contract to make your formal offer to buy the property. The seller accepts your offer by also signing the contract; you must pay the deposit as stated by the Auctioneer.

 

Subject to finance

You may be required to buy a property subject to your bank obtaining a Sworn Valuation. In this instance you would make your offer subject to finance approval. The lenders valuer will then coordinate with the selling agent a time to inspect the property and provide a valuation prior to approving your loan. This can take anywhere from two days to twenty-one days,

The amount you will be borrowing to secure the property, the date of the approval and the lender from whom you are seeking finance should be stated in the finance clause. You will still be required to pay an initial deposit which is called ‘consideration’ and formalises your offer. This initial deposit is a negotiated sum, the vendor may ask for the full ten percent prior to signing the contract of sale or a lesser amount if they deem that to acceptable.

If your finance approval fails all the money you have paid will be returned to you in full, as long as you notify the selling agent within the time specified in the finance clause. If you fail to notify the selling agent that your finance approval has failed you may lose the ten percent deposit and incur other and significant costs.     

If you need more time to determine if another lender will provide finance you may request an extension of the finance clause via your legal representative. The vendor may or may not allow additional time, you may need to rescind the contract on the basis of failed finance in which instance you will need to provide the vendor written evidence from the lender that the finance has failed for the purchase of their property.  

 

Final Inspection

Buyers are entitled to inspect the property at any reasonable time one week before settlement. The contract of sale outlines the seller’s obligation to hand over the property in the same condition as when it was sold. The final inspection should be conducted with sufficient time for you to discuss any concerns you have in relation to the property’s condition with your legal representative.

 

Settlement Day

The settlement date is the date on which the balance of the purchase price is paid to the seller in exchange for the property title.

This is an official process conducted between legal and financial representatives of the buyer and seller. The settlement date is also the date upon which the buyer can take possession of the property, unless otherwise arranged.

At settlement all outgoings such as rates and other charges will be adjusted between the seller and the buyer. The seller is responsible for rates up to and including the day of settlement. The buyer is liable from the day after settlement.

Glossary of terms

A

 

Agent’s representative

Not a licensed agent. The agent’s representative is employed by or acts for a licensed agent and performs the function of an estate agent. (See also estate agent)

Auction

A public sale of property when the highest bidder is normally the successful buyer.

Authority to Sell

A legally binding document signed by the seller detailing the agreement between the seller and the agent. Many aspects of the authority to sell, such as commission and advertising costs, are negotiable between the parties.

B

 

Breach of Contract

The breaking of one or more of the terms or conditions of a contract.

 

Break fee

A fee charged by a lender to a borrower to prematurely exit an existing contract. This process may cost the borrower many thousands of dollars.

 

Bridging finance

A short-term loan (about six to 12 months) used to fill the time gap between buying another property and either selling the one you own or obtaining a long-term loan. This type of borrowing is usually at a higher interest rate.

 

Building Consultant

An expert experienced in designing and/or constructing a building. When employing a building consultant for a pre-purchase report on a property, you should ask whether they have indemnity insurance to cover any serious omissions about building defects not covered in the report. A building consultant is not required to be registered as a building practitioner but such a qualification may reflect greater experience in a particular field of work.

 

Building Inspector

A person registered with the Building Practitioners Board (at the Victorian Building Authority) as a building inspector. This person may operate as a private or council building inspector and is qualified to inspect buildings to ensure compliance with the Building Act and building regulations.

 

Building surveyor

A person registered with the Building Practitioners Board as a building surveyor. This person is qualified to issue a building permit, inspect a building for compliance with the Building Act and building regulations, and issue an occupancy permit or certificate of final inspection.

 

Buyers advocate – Buyers Agent

An estate agent acting solely for the buyer by sourcing suitable properties and representing the buyer throughout the buying process.

C

 

Capital gain

Profits made from the sale of property.

 

Caveat

A note on the title that an interest in the land is claimed by a third party.

 

Caveat emptor

A Latin expression meaning ‘let the buyer beware’. It is the buyer’s responsibility to ensure that the property meets their approval prior to purchase.

 

Certificate of occupancy

A document issued by a building surveyor stating the building is suitable for occupation. It is not evidence that the building complies with the Building Act or building regulations.

 

Certificate of title

A document showing who owns the property, the size of the land and whether there are any limitations on the title such as mortgages, easements or encumbrances.

 

Chattels

Moveable personal property or furniture.

 

Commercial property

Areas of a property used by and belonging jointly to all owners of a property. This applies to such properties as apartment blocks or multi-dwelling complex

 

Common property

Areas of a property used by and belonging jointly to all owners of a property. This applies to such properties as apartment blocks or multi-dwelling complexes.

 

Company title

Each resident in a block of flats owns a parcel of shares in a company established under the Commonwealth Corporations Act 2001. This company owns the land and the building. Each shareholder is entitled to exclusive occupation of a flat, but is subject to the company’s constitution (formerly called the memorandum and articles of association) and any by-laws. These documents should be carefully examined for any restrictions.

 

Comparison rate

A tool allowing the true cost of a loan – interest rate, fees and charges – to be compared with other loans using a single figure percentage.

 

Consumer Credit Code

Regulates all credit for personal, domestic or household purposes. To ensure fair dealing and to protect the interests of consumers, all lenders must comply with the Consumer Credit Code.

 

Consumer credit insurance

An option for borrowers to guard against losing their property in case they default on the loan repayments. This will safeguard the loan if repayments cannot be made because of sickness, accident or unemployment.

 

Contract of sale

A legal document prepared by the seller, usually with the aid of a solicitor or a conveyancer, outlining the details of the sale. The contract of sale is legally binding when signed by both parties.

 

Conveyancer

A person or company licensed to conduct conveyancing business. This means any business where conveyancing work is undertaken for a fee or reward.

 

Conveyancing

Transferring the ownership of a property from the seller to the buyer. It is often performed by a solicitor or conveyancer.

 

Co-owner

A co-owner is a seller who has a financial share in a property and wants to buy out the other co-owners. For example, in the case of a divorce, two parties may have a share in a property and one party may wish to buy out the other party’s share. Both parties are known as co-owners.

 

Co-owner bid

A co-owner bid is a bid made by a seller who is a co-owner of the property or by a person (other than the auctioneer of the land) on behalf of a seller who is a co-owner of the property.

 

Covenant

An agreement creating an obligation on the titleholder of a property to do or refrain from doing something. For example, a restrictive covenant could state that no more than one dwelling may be built on the land.

 

D

 

Deposit

A percentage of the purchase price paid by the buyer when contracts are signed. It is usually 10 per cent. The deposit must be held in a trust account by an estate agency, by the seller’s solicitor or conveyancer or jointly in a trust account by the seller and buyer.

 

Deposit bond

Offered by some lenders as an alternative to a cash deposit. It is also known as a deposit guarantee.

 

Disbursements

Additional charges by some solicitors and conveyancers on top of their fee for extras such as postage, phone calls and government charges.

 

Due diligence checklist

Property sellers, or estate agents acting on their behalf, must make this checklist available at open for inspection events for homes or residential property. The checklist helps prospective buyers identify any issues that could affect the property, and alerts them to potential restrictions or obligations on the owner.

 

Dummy bid

A false bid made or accepted by the auctioneer. Dummy bids can include bids made by a non-genuine bidder and ‘fictitious’ bids pulled out of the air by the auctioneer. Any bid made on behalf of the vendor by anyone, other than the auctioneer under the auction rules, is considered a dummy bid. Dummy bidding is illegal.

 

E

 

Easement

A right held by one person to make use of the land of another. Drainage and sewerage pipes are examples.

 

Encroachment

The use of, or intrusion onto, another person’s property without consent. This usually refers to a structure.

 

Encumbrance

A third party’s right that obstructs the unencumbered use or transfer of a property. Examples are easements, mortgages or caveats.

 

Equity

Having ‘equity in your own house’ refers to the difference between the market value of a property and what is still owing on a mortgage. This will increase as the loan is repaid or as the property’s market value increases.

 

Estate agent

A licensed person authorised to act for another in the selling, buying, renting or management of a property. Estate agents usually act for the owner.

Estimated selling price

The price an estate agent estimates a property will attract. It must be recorded on the authority to sell either as a single figure or as a range where the difference between the top and bottom figures does not exceed 10 per cent. For example: $400,000 to $440,000.

  

F

First Home Owners Grant

A scheme for first home owners. Please refer to the State Revenue Office website for further information.


Fittings

Items that can be removed without damaging the property such as garden ornaments, lighting and air conditioners. They must be listed in the contract of sale if the buyer wants them to remain with the property.

 

Fixed interest rate

An interest rate that remains unchanged for a set period.

 

Fixtures

Items that are attached to the property and cannot be removed without causing damage to the property such as bathroom suites, built-in wardrobes and kitchen stoves. They are usually included in the sale.

 

Foreclosure

When a borrower fails to meet mortgage repayments or repay a loan, the lender takes over the property and keeps it.

 

G

 

General Law title (old system title)

The original system of land titles. A General Law title is comprised of all the documents that show a property’s complete historical record of title ownership. For the title to be ‘clear’, it must be traceable without a break up to and including the current ownership. Such a title must now be converted to a [‘Torrens title’] when such a property title is resold.

 

Goods

In relation to a sale of a property, goods include personal items, chattels and fittings.

 

 

 

Goods and Services Tax (GST)

A consumption tax of 10 per cent levied on the final consumer of the goods or services. The supplier of the transaction is responsible for collecting the GST and sending it to the Australian Taxation Office (ATO).

 

Gross income

Total income before income tax and expenses are deducted.

 

I

 

Industrial property

Property zoned and used for factories and warehouses.

 

Interest only loan

Throughout the term of the loan, only the interest is paid off. The loan itself (the principal) is repaid at the end of the time limit of the loan.

 

J

 

Joint tenants

The form of ownership where two or more people purchase a property in equal shares. If one dies, their share of the property passes to the surviving owner/s. (See also tenants in common)

 

L

 

Land tax

Calculated on the value of a block of land and payable by the owner/s. 

 

M

 

Mortgage

A written contract giving the lender of finance certain rights over specific property. For example, the house bought by the borrower is used as security for the loan.

 

Mortgage guarantee insurance

Paid by the borrower to protect the lender against failure by the borrower to keep up mortgage repayments or to pay back the loan in full when it is due. Such insurance normally applies where the borrower’s loan exceeds 80 per cent of the value of the property. This type of insurance is taken out by the lender, with the cost passed on to the borrower. The borrower remains liable for any shortfall; for example, if the property is sold and the proceeds do not cover what is owed to the lender.

 

Mortgagee (lender)

An organisation lending money to a borrower by a mortgage agreement.

 

Mortgagee sale

If the borrower defaults, the lender can seek to recover the debt by selling the property that was the security for the loan under the mortgage.

 

Mortgagor (borrower)

A person taking out a mortgage on a property they are buying. The property is assigned to the lender as security for the loan.

 

N

 

Net income

Your income after income tax and mandatory levies have been deducted.

 

O

 

Off the plan

Purchasing off the plan involves buying a property before it has been built. Such purchases are usually based on the architect’s plans and models.

 

On the market

The point at an auction where a price is reached at or above which the seller is prepared to sell. (See also reserve price)

 

Outgoings

Any costs incurred by the seller on top of the agent’s commission, such as advertising costs. All outgoings are negotiable.

 

Over-quoting

The illegal practice of overstating the estimated selling price of a property. This is usually done to encourage a seller to list.

 

Owners corporation

Formerly known as a body corporate. An owners corporation has the collective ownership of the common area in a subdivision of land or buildings. It is responsible for the administration, upkeep and insurance of the common area shared by all the owners (the common property).

 

P

 

Passed in

The circumstance where a property for auction is not sold, usually because it has not reached the seller’s reserve price.

 

Principal

The amount of the loan itself without interest or other charges associated with the loan.

 

Private sale

In a private sale, the sale is negotiated between the buyer and seller usually with the assistance of an agent.

 

Proof of debts information

Information that a seller provides to a buyer, usually as an attachment to the contract of sale, in support of a request for early release of the deposit money. A seller requesting early release of the deposit must provide evidence to the satisfaction of the buyer that either there are no debts secured against the property, or if there are any debts, that the total amount of those debts does not exceed 80 per cent of the sale price of the property.

 

R

 

Rebates

Discounts received, usually for bulk purchases such as advertising. Any rebates received by an agent must be passed on to the seller.

 

Requisitions on title

A set of questions about a property the buyer asks the seller after the contract has been signed, usually with the help of a solicitor.

 

Reserve Bank of Australia

Australia’s central bank with responsibility for regulating monetary policy including the official interest rate.

 

Reserve price

A seller’s minimum sale price for the property. It may be recorded on the authority to sell.

 

Residential property

Property zoned and used for dwellings such as houses, flats and apartments.

 

Rural property

Property zoned for non-urban uses, including farmland and bush blocks.

 

S

 

Section 32 statement

Information that the seller must provide to the buyer advising of restrictions such as covenants and easements, outgoings such as rates and any other notices such as compulsory acquisition. Also known as a vendor's statement.

 

Settlement

When ownership of a property passes from the seller to the buyer and the balance of the sale price is paid to the seller.

 

Solicitor

A legally qualified and licensed person undertaking legal work and providing legal advice for a fee. A solicitor may specialise in conveyancing and property law.

 

Stamp duty

A state government tax, based on the sale price of a property, paid by the buyer when property ownership is transferred. Also known as duty.

 

Statutory compensation fund

A fund established by legislation to compensate a client if a legal practitioner or estate agent misuses money they hold on behalf of that client.

 

Strata title

Each unit in a block or multi-unit complex is individually owned by the resident. In addition, all the owners in the building or complex have shared ownership of the common property, which is managed by an owners corporation.

 

Stratum title

Each unit is owned by the resident, who also owns shares in a service company, established under the Commonwealth Corporations Act 2001. The service company owns and manages the common property in the multi-unit block or complex.

 

T

 

Tenants in common

A form of joint ownership of a property when each person owns a share of the property, equally or unequally. On the death of one owner, the deceased’s share passes to their heirs, who assume the role of tenant in common with the other existing owner/s.

 

Title

A legal document identifying who has a right to the ownership of a property.

 

Torrens title

A system of title by registration governed by the Transfer of Land Act.

 

Transfer of land

A document recording the change of ownership of a property from the seller to the buyer.

 

U

 

Underquoting

The illegal practice of understating the likely selling price.

 

Unfair contract terms

Terms not in good faith causing a significant imbalance in the rights and obligations of both parties to the detriment of the consumer.

 

V

 

Valuation

An estimate of the value of a property by a registered valuer, usually for a fee.

 

 

Vendor (seller)

The person selling the property.

 

Vendor bid

A bid made on behalf of the vendor. Vendor bids can only be made by the auctioneer and only when the auction rules allow it. The auctioneer makes this statement before bidding starts and announces each vendor bid as, or before, it is made.

 

Vendor checklist

A document prepared and signed by the seller that lists all the items to remain in the property after the sale, and includes comments on the condition of each item.

 

Vendor terms contract

Also known as a terms contract, when a loan is supplied by the vendor rather than by an established lender.

 

Vendor's statement

Information that the seller must provide to the buyer advising of restrictions such as covenants and easements, outgoings such as rates and any other notices such as compulsory acquisition. Also known as a Section 32 statement.

 

W

 

Wrapping

A type of vendor terms contract in which the property price and loan interest rates are usually well above the market rate. Penalties for defaulting can be severe and such contracts should be entered into with caution.

 

 

Z

Zoning

The permissible uses of an area of land as stipulated by the council.