Buying Residential Property – Understanding Cooling-Off Periods

In the whirlwind of excitement that often accompanies the purchase of a residential property, it is still essential for buyers to be cautious. In most Australian jurisdictions, the law makes provision for a cooling-off period to allow home buyers to evaluate a decision made in the heat of the moment. These periods represent a crucial safeguard in real estate transactions.

In this article, we look at cooling-off periods, their significance, applicability, and operation across different jurisdictions in Australia. The information provides a general overview only and it is important to note that there are various exceptions to cooling-off periods and different rules for each state and territory. Accordingly, you should obtain professional advice relevant to your jurisdiction and the circumstances of the transaction.

Why Have a Cooling-Off Period?

The primary rationale behind cooling-off periods is to afford buyers an opportunity to conduct further due diligence, seek legal or financial advice, and address any concerns that may arise after the signing/exchange of contracts. By providing buyers with a brief reprieve from the pressures of a rapidly evolving property market, cooling-off rights promote informed decision making and help mitigate the risks associated with impulsive or ill-considered purchases.

How Does a Cooling-Off Period Work?

During the cooling-off period, buyers have the option to rescind, or cancel, the contract by providing written notice to the seller or their representative. This notice effectively terminates the contract, and the buyer may be required to pay a nominal penalty fee, typically calculated as a percentage of the purchase price, to the seller. However, it is important to note that conditions and limitations apply in every jurisdiction, such as the timeframe within which the notice must be given, and any specific requirements stipulated in the contract of sale.

When Does a Cooling-Off Period Apply?

Generally, cooling-off periods are only available for private treaty sales, and not for properties bought at auction. There are other exceptions where cooling-off rights do not apply, and it is important to check these with your lawyer or conveyancer before entering a contract. Additionally, the cooling-off period is typically there for the benefit of buyers, not for sellers who change their minds after signing the contract. The specific application of cooling-off periods depends on the circumstances of the transaction and the relevant state or territory legislation.

Further, in some cases, a buyer and seller may agree to waive, shorten or lengthen the cooling-off period by including a term in the contract to that effect.

Cooling-Off Rights Across Australia

In Queensland, a cooling-off period of five business days applies to contracts for the sale of residential property. This period starts the day the buyer (or their representative) receivesa copy of the fully signed contract. The cooling-off period ends at 5 pm on the final day of the cooling-off period.

In Victoria, a cooling-off period of three clear business days applies. This period begins from the date the buyer signsthe contract. The consequence of cancelling the purchase during the cooling-off period is that a penalty of $100 or 0.2% of the purchase price (whichever is greater) will apply.

In New South Wales, buyers of residential property have a cooling-off period of five working days following the exchange of contracts. If the buyer exercises their cooling-off rights, they will forfeit 0.25% of the purchase price.

Likewise, in the Australian Capital Territory, a buyer is entitled to a cooling-off period of five business days. If the buyer rescinds the contract, they forfeit 0.25% of the purchase price to the seller.

In South Australia, buyers have a cooling-off period that starts from when the seller provides the buyer with a Form 1 that sets out important information about the property, including any encumbrances, easements, or other certain legal issues that may affect the sale. The cooling-off period expires at the end of the second clear business day after the form is provided.

In the Northern Territory, a buyer is entitled to a cooling-off period of four business days which commences on the day that contracts are signed and duly exchanged.

The Real Estate Institute of Tasmania and Law Society of Tasmania standard form contract includes an option for buyers to choose a cooling-off period. Buyers must select this option for the cooling-off period to apply. In such cases, they will have three business days from when the contract is made to terminate the contract without penalty. Any deposit paid is refundable.

In Western Australia, cooling-off periods for residential property sales are not an automatic inclusion in contracts. In most cases therefore, buyers cannot change their minds once the contract has been entered. However, they may still negotiate the inclusion of a cooling-off clause in the contract of sale as a condition of their offer. This contractual provision affords buyers similar protections to those provided by statutory cooling-off periods, albeit subject to the terms negotiated between the parties.

Conclusion

Cooling-off periods represent a fundamental aspect of residential property transactions, offering buyers a valuable opportunity to pause, reflect, and reassess their commitment before finalising the purchase. While the specifics of cooling-off periods vary between states and territories, their underlying purpose remains consistent: to empower buyers with the information and flexibility needed to make informed decisions in a rapidly evolving real estate landscape.

By understanding the intricacies of cooling-off periods and their operation, buyers can navigate the property market with confidence, knowing that they have the necessary safeguards in place to protect their interests and secure their dream home.

If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].

Elder abuse

It’s hard to imagine that somebody would harm, intimidate or take advantage of an aged and vulnerable person. Unfortunately, however, elder abuse occurs within our society and sadly, the perpetrators are often those entrusted with caring for our older generation.

Elder abuse can be defined as a single or ongoing act or omission that causes harm or distress to an aged person. Abuse can generally be categorised as:

• physical – pushing, shoving, rough treatment or sexual abuse;
• neglect – failing to provide adequate necessities and / or maintain hygiene;
• psychological – emotional abuse, social segregation, ridiculing and belittling;
• financial exploitation – unauthorised use of a person’s property or money.

The conduct causing the harm is usually carried out in circumstances where there is an expectation of trust between the victim and perpetrator who is, ironically, often a caregiver or family member.

According to the Australian Law Reform Commission’s 2017 National Legal Response to Elder Abuse, psychological abuse and financial exploitation are the most common types experienced and, in many cases, these categories co-exist.

Specific examples of psychological abuse include bullying and harassment, treating an elderly person as a child or as somebody lacking intelligence or mental capacity, threatening to send the person to a nursing home or depriving him or her of seeing certain family members or friends.

Financial abuse occurs when a person illegally and improperly uses an elderly person’s financial resources or property for their own, or a third party’s, benefit. This could happen in any number of ways, such as:

• misusing a power of attorney and / or making unauthorised withdrawals from a bank account through an ATM or an internet transfer;
• depriving an elderly person access to his / her own funds or property;
• manipulating an elderly person into gifting or loaning money or transferring assets;
• putting a person under duress to include certain provisions in a Will or to change an existing Will;
• pressuring a person to give a power of attorney or appointment of enduring guardian.

Identifying abuse

Australian jurisdictions have access centres, helplines and resource units to assist those experiencing or affected by elder abuse as well as tribunals or courts that deal with disputes and issues concerning allegations of abuse.

If you are a victim of elder abuse you can speak with somebody you trust about your concerns, obtain advice from one of these centres, or contact a lawyer.

If you suspect somebody you care about is a victim of elder abuse you should raise your concerns with that person before suggesting a plan to obtain help and move forward.

You may notice an elderly friend or relative becoming reclusive or missing social events, having insufficient funds to pay for necessities or outgoings (particularly when compared with their financial position), suddenly becoming friendly with a new carer or a person showing special interest in the elderly person, hovering around or constantly speaking for that person.

Because the purported abuser is often a relative or somebody presumably close to the older person, it can be difficult and challenging to identify and address cases of elder abuse. It is even more complex if the alleged abuser has been appointed power of attorney for the victim. Sometimes the older person may not even realise they are the subject of abuse as they may be quite dependent on their perpetrator or may have some degree of mental incapacity. In such cases, it is wise to seek advice from a lawyer.

Protecting yourself from elder abuse

The following can help protect you from elder abuse:

• Appoint somebody you trust, whether that be a friend or family member, to be your power of attorney and enduring guardian. Talk to your lawyer about the types and scope of power / guardianship you would like to give this person and in what circumstances they may exercise the power. You can appoint different people for different roles, more than one person, or alternate people. Ask plenty of questions and be sure that you fully understand the appointment before signing anything.

• Consider putting in place an advance health care directive setting out your wishes and directions regarding your future health care if you become unable to make those decisions yourself.

• Do not agree to lend money, or to transfer or mortgage significant assets without obtaining independent legal advice and having the transaction documented in writing. Your lawyer should be independent (not chosen by the person to whom you are lending money). Advice should be provided to you alone and not in the company of the proposed borrower or transferee.

• If you decide to gift money, talk to Centrelink or a financial advisor first so you understand the effect this may have on any pension.

• Ensure you have a valid Will, that you understand the effect of the Will and you know where the original can be located. Your lawyer can hold the original Will on your behalf without charge and provide you with a copy. Review your Will regularly to ensure it reflects any changes in your circumstances or your choice of executor and / or beneficiaries.

• If something doesn’t sound right, there’s a good chance that it isn’t right. Speak up, tell somebody you trust or call a support service.

Conclusion

Elder abuse is a highly-concerning social justice issue and demands further attention and inquiry. Public education, particularly regarding our ability to identify and acknowledge elder abuse, is crucial to ensure these injustices can be addressed and remedied. Older generations should be empowered by learning about the steps they can take to protect themselves and knowing who they can turn to for help.

If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].