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When a vendor is preparing a residential off-the-plan contract (a contract for the sale of a residential lot that has not been created when the contract is entered into), they must attach this Disclosure Statement ➲ Residential Off-the-Plan Contracts (NSW) to the contract to outline key information to comply with s66ZM of the Conveyancing Act 1919 (NSW).
This automated document generates a Disclosure Statement ➲ Residential Off-the-Plan Contracts (NSW) in the form approved by the Conveyancing Act 1919 (NSW).
The required key information includes the Sunset Date by which the settlement of the property must have been completed, as well as other key contract conditions.
This kind of Sunset Date differs from other Sunset Dates we have included in our Special Conditions to allow the Seller to continue to advertise for 48 hours.
The NSW Disclosure Statement must include a draft plan, prepared by a registered surveyor, that identifies:
Other documents to include with the NSW Disclosure Statement:
Please also try using our Special Conditions (NSW) solution and provide us with your feedback so we can expand its capabilities to generate Special Conditions for:
✅ NSW "Off-the-Plan" Sales; +/or
✅ NSW Commercial Property.
Social Sharing Image: Courtesy of Jacob Spaccavento on Unsplash
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The ZipID VOI process will provide the PEXA Confirmation of Authority to Act for you to sign at the same time as your VOI.
Our legal team can also assist with the preparation of the PEXA Confirmation of Authority to Act and any queries you have prior to you signing it.
A buyer of NSW property will generally be considered a foreign person and liable to pay NSW purchaser surcharge duty [8% of the purchase price] unless:
✅ The buyer is an Australian citizen; or
✅ Has lived in Australia for more than 200 days in the 12 months before the purchase date, [+] is either:
⚖️ A New Zealand citizen, who holds a subclass 444 visa; or
⚖️ A permanent resident of Australia.
As well as paying Surcharge Purchaser Duty, foreign persons who own residential land must also pay Surcharge Land Tax.
If the situation is complex, we recommend the purchaser obtain specialist tax advice.
^ Source: LawCover Short Minutes: Surcharge Purchaser Duty
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Source: *The above screen captures were taken (as an example) from our Infotrack NSW Property Search Lists on 21 May 2021.
A buyer of NSW property will generally be considered a foreign person and liable to pay NSW purchaser surcharge duty [8% of the purchase price] unless:
✅ The buyer is an Australian citizen; or
✅ Has lived in Australia for more than 200 days in the 12 months before the purchase date, [+] is either:
⚖️ A New Zealand citizen, who holds a subclass 444 visa; or
⚖️ A permanent resident of Australia.
As well as paying Surcharge Purchaser Duty, foreign persons who own residential land must also pay Surcharge Land Tax.
If the situation is complex, we recommend the purchaser obtain specialist tax advice.
^ Source: LawCover Short Minutes: Surcharge Purchaser Duty
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
A: No.
It is against the law to offer a Residential Property for Sale in NSW without first having the proposed Contract of Sale prepared including all mandatory disclosures.
Please read this REINSW article: NoContract? No Show! for a detailed discussion on this topic.
"A valid contract for sale is also a must before any inspections take place.
Section 63(2) of the Property, Stock and Business Agents Act NSW 2002 (the "PSBA") requires a contract for sale to be available for inspection at all times when an offer to purchase residential property may be made.
Under section 63(3), an agent is considered to offer a residential property for sale when, expressly or by implication, they:
🏡 Indicate that the property is for sale or is to be auctioned at any future time;
🏡 Offer to sell the property;
🏡 Invite offers to purchase; or
🏡 Indicate that a person may be willing to grant an option to purchase the property.
If an agent fails to comply with section 63, they could be subject to a substantial penalty up to $11,000 …
"When you consider that an agent could lose their licence or be fined, it is prudent to wait a week for a contract to be prepared or explain to the vendors that they too would be at risk if something were to go wrong," he says.
So, as you can see, it is not only best practice – but in line with the legislation – to ensure both an agency agreement and contract for sale are in place before offering a property for sale in NSW.”
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
All conveyancing transactions of Australian property with a market value of $750,000 or more require the vendor to make an ATO Clearance Certificate Application and for the purchaser to withhold 12.5% of the purchase price at Settlement and pay the funds to the ATO, if no ATO Clearance Certificate is furnished on or before Settlement.
An ATO Clearance Certificate or Certificate of Clearance issued by the ATO is required where the capital gains tax (CGT) asset to which the conveyancing relates is taxable Australian real property or an indirect Australian real property company title interest.
Failure to make an ATO Clearance Certificate Application and obtain an ATO Clearance Certificate will result in the vendor being treated as a relevant foreign resident for the purposes of the relevant tax law.
This rule applies even if the vendor is actually an Australian resident for other income tax purposes.
The ATO may issue an ATO Clearance Certificate (also called Certificate of Clearance) stating that the vendor of taxable Australian real property or an indirect Australian real property company title interest is not a relevant foreign resident.
The ATO Clearance Certificate will specify that withholding is not required on the acquisition of the Australian property.
An ATO Clearance Certificate is valid for 12 months from the date issued.
Therefore, the vendor does not have to reapply for an ATO Clearance Certificate each time they dispose of a property, as long as the prior ATO Clearance Certificate has not expired.
The ATO Clearance Certificate may be provided to the purchaser at any time during the transaction, but nevertheless it must be provided to the purchaser by settlement.
The purchaser can rely on the ATO Clearance Certificate as proof that they are not required to withhold 12.5% of the purchase price at Settlement and pay the funds to the ATO.
Once the purchaser has received a copy of the ATO Clearance Certificate they have met their obligation, even if the vendor’s circumstances change during the settlement period.
For the sale of all taxable Australian real property with a market value of $750k or more, the vendor is deemed a relevant foreign resident (even if they are in fact Australian) unless the buyer is furnished with a current ATO Clearance Certificate on or before Settlement.
If the vendor fails to provide the required ATO Clearance Certificate on or before Settlement, the buyer is required by law to deduct 12.5% from the purchase price and pay it to the ATO.
In such a situation, the vendor will face significant delays in receiving the full sale proceeds for the property.
To obtain an ATO Clearance Certificate, a vendor who is an Australian resident (or their representative) must complete an online Foreign resident capital gains withholding ATO Clearance Certificate Application Form (NAT 74883).
To access the ATO Clearance Certificate Application Form, visit the ATO website page: Capital Gains Withholding ATO Clearance Certificate Application Form and instructions for Australian Residents.
Conveyancers who are not legal practitioners or registered tax agents cannot complete the ATO Clearance Certificate Application Form on behalf of the vendor.
They can either provide the PDF version of the ATO Clearance Certificate Application Form (or URL hyperlink) to the vendor for them to complete.
If the Vendor is a foreign resident for tax purposes, the Vendor may be eligible to apply for a Variation Notice instead.
Credits:
The content for this FAQ was sourced from the ATO website page: Capital Gains Withholding ATO Clearance Certificate Application Form and instructions for Australian Residents.
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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