Selling Residential Property
8 October 2025 in Property and Conveyancing Law | 6 min read | skip to FAQsThis article discusses selling residential property, including whether you need a lawyer, the process involved and what happens if the contract is breached.
Do I need a lawyer when selling a residential property?
You are not required to use a lawyer when selling a residential property. However, using a conveyancing lawyer to conduct the sale of a residential property is very helpful. A property and conveyancing lawyer will draft an effective contract of sale, negotiate with potential purchasers, resolve disputes between the parties, conduct the necessary investigations, exchange contracts and conduct the settlement. Using a lawyer helps alleviate the stress that is often associated with selling a property, by keeping you well informed, obtaining the necessary documents in a timely fashion, averting problems through negotiation with the other party and ensuring that the process runs smoothly.
The Process of Selling a Residential Property
The process of selling a residential property typically takes 6 weeks to complete, but this length can be shortened or extended if both parties agree. There are four main stages of the conveyancing process.
Drafting a Contract of Sale
If you intend to sell a residential property in NSW, a contract of sale must be available to prospective buyers of the property. This means that you will need to have a contract of sale prior to advertising the property. A property and conveyancing lawyer can assist you in drafting an effective contract of sale that is tailored to your circumstances and instructions. Your contract of sale must include certain information such as a title search which confirms ownership of the property, a zoning certificate obtained from the local council and evidence of any easements or covenants on the property. There may be other documents required in the drafting of the contract of sale. An experienced property lawyer will advise you and obtain these documents for you.
When drafting the contract, you can also instruct your lawyer to include special conditions in the contract, such as a longer than usual period of time to settlement.
Marketing the Residential Property
Once you have prepared a contract of sale you will have the choice as to whether you intend to sell your residential property by negotiation or by auction. Once this decision is made the property will be marketed and will become available to prospective purchasers. A purchaser may want to inspect the property for building defects or pests or negotiate the terms of the contract. A property lawyer can assist you with these negotiations.
Exchange of Contracts
Once you have found a buyer for the residential property, the parties to the transaction will need to sign and date the relevant contracts for the sale of the property. At this point the deposit will also become payable and each party will hold copies of the contract. The deposit that should be paid on a residential property is typically 10% of the purchase price. This price may be reduced if both parties agree. It is important to note that once the contract is exchanged, both parties will be bound to the contract’s terms and conditions. The purchaser of the property will have certain temporary rights during what is known as a cooling off period which is 5 working days. During this period the purchaser can withdraw from the contract without penalty.
After the exchange of contracts, a purchaser prepares to pay the full purchase price on the settlement date. Most purchasers make a final inspection of the property just prior to settlement to ensure that it has not been damaged or changed.
Settlement
Settlement is the final step in the conveyancing process. This is the transfer of the property’s certificate of title and lodgement of this transfer in the NSW Land Registry Services. It also includes the respective registering and discharging of the buyer and seller mortgages over the property. All new mortgages now require the completion of a form called the National Mortgage which is lodged on the certificate of title with the NSW Land Registry. If there is no mortgage (incoming or outgoing), the transfer is done without the need for for a mortgage. There is simply a transfer and lodgement of the title from the the vendor to the purchaser in exchange for the payment from purchaser to vendor.
Changes to Registering of the Transfer of Property.
The NSW Parliament passed the Real Property Amendment (Certificates of Title) Act 2021 (NSW). This legislation abolished paper certificates of title, previously known as title deeds in NSW and mandated that all property dealings must be lodged electronically to the NSW Land Registry. The transfer and registration of the property’s certificate of title and any associated mortgage discharges or registration associated with the property must be lodged electronically.
There are still Title Deeds now known as Certificates of Title. However, these are now in the electronic form.
The legislation also mandated that property settlements be conducted electronically via Electronic Lodgment Network Operators (ELNO). ELNO are approved companies who operate an Electronic Lodgment Network (ELN). The most widely used ELNO in Australia is PEXA.
What is the Significance of the Electronic Lodging of Certificate of Title?
Due to the 2021 change in legislation requiring electronic settlements, buyers and sellers need to see a lawyer or conveyancer who is a subscriber of an ELNO such as PEXA, for settlement. To lodge the transfer of title (and associated mortgage) to be registered on the NSW Land Registry requires access to PEXA.
Brander Smith McKnight’s expert property and conveyancing lawyers can provide you with advice and assistance throughout the entire process of selling a residential property. We will ensure settlement is completed smoothly which includes ensuring the mortgagee is prepared, both the purchaser and vendor have completed all necessary steps, and all relevant documents are accurate. It is important to note that the property and mortgage documents are prepared as paper documents and usually retained by lawyers.
What is the National Mortgage?
All new mortgages now require the completion of a form called the National Mortgage which is found on the website of the Australian Registrars’ National Electronic Conveyancing Council (ARNECC). This form must be completed and signed by the mortgagee and mortgagor and witnessed by an eligible witness such as a lawyer. These forms are then lodged on the certificate of title with the NSW Land Registry. The registered mortgage document to be registered via PEXA to the NSW Land Registry is a single piece of paper.
Selling a Residential Property at Auction
Selling a residential property at auction is different to selling a residential property by private treaty. An auction allows for potential buyers to bid on the property and allows the property to be sold to the highest bidder. When a residential property is sold at auction, there is no cooling off period for the purchaser and no changes to the contract of sale can be made after the property is sold.
What can I do if the contract has been breached?
Brander Smith McKnight’s expert property lawyers can provide you with assistance in relation to circumstances where a party has breached a contract for the sale of property prior to settlement. Our lawyers can assist you with resolving a dispute and enforcing the contract through alternative dispute resolution. Resolving a dispute arising from a breach of contract outside of court can save both parties money and time.
Alternatively, our lawyers can commence legal proceedings against a party who has breached a contract and seek either compensation for the breach or seek to have the contract performed.
How can BSM Sydney Lawyers assist you?
Brander Smith McKnight Sydney Lawyer has highly experienced property and conveyancing lawyers who provide you with an efficient and inexpensive service. Our property lawyers understand the anxiety and stress that is associated with selling residential property and work hard to alleviate this stress by keeping you well informed throughout your property matter and explaining each stage of your property matter in clear and simple english. BSM Property Lawyer Sydney are experienced with all types of titles including Torrens, Strata and Old System title.
We provide a fixed fee professional conveyancing service provided by lawyers. We do not use conveyancers at any stage of the conveyance.
Our property lawyers provide a free-20 minute consultation.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
FAQs
Why should I have a Lawyer Draft the Contract of Sale for a Residential Property?
If you intend to sell a residential property in NSW, a contract of sale must be available to prospective buyers of the property. Having this contract of sale drafted by an experienced property lawyer ensures that it complies with legal requirements and minimises the chances of problems arising in the future. A property and conveyancing lawyer will also draft a contract that is tailored to your specific circumstances and instructions.
Should I choose a Conveyancer or a Lawyer when Selling Residential Property?
Lawyers and conveyancers are not the same. A property lawyer not only conducts the entire conveyancing, they are also able to identify and assist with other legal issues. For example, a property lawyers can also provide you with commercial and contract law advice and assistance. A lawyer can identify other legal issues outside of the area of property law if they arise in your matter and provide you with advice and assistance accordingly. Knowing that a property lawyer can handle potentially complex legal issues provides a level of confidence not found in a conveyancer.
A conveyancer is not a lawyer, they are only permitted to practice and assist people with conveyancing. Conveyancers therefore, can only only provide service in the sale, purchase, transfer and leasing of property. They are unable to provide advice regarding legal issues outside of conveyancing. At Brander Smith McKnight Sydney Lawyers we do not use conveyancers at any stage of the process.
What if the Residential Property I am selling has been Damaged after the Exchange of Contracts?
Prior to settlement a purchaser should make a final inspection of the residential property. If during this inspection the purchaser finds the property to be substantially damaged they can withdraw from the contract without penalty. Alternatively, where there has been minor damage to the property, the purchaser may negotiate the adjustment of the purchase price of the property. The experienced property lawyers at BSM Sydney Lawyer can advocate for you with this negotiation.
Can I Sell my Home without using a Lawyer or Conveyancer?
No, there was a change in the legislation in 2021 making it extremely difficult for an individual to perform their own conveyancing. In 2021, the NSW Parliament passed the Real Property Amendment (Certificates of Title) Act 2021 (NSW) which abolished paper title deeds in NSW and mandated that all property settlements be lodged electronically to the NSW Land Registry. This means the transfer and registration of the property’s certificate of title (previously known as the title deed) and any associated mortgage discharges or registration associated with the property must be lodged electronically.
To lodge the electronic certificate of title of the property, you must be a subscriber to one of the ELNOs (Electronic Lodgement Network Operators), most commonly PEXA. If there are mortgages involved, which is usually the case, this is also performed electronically via the banks at the same time through PEXA. For more information on this 2021 amendment, please see our article on this subject.
In addition to the now compulsory electronic lodgement of a property’s certificate of title, it is not wise to do your own conveyance. The sale of a property is a transaction that involves considerable risk. There are many factors that require coordination such as approval of funding, loan and guarantor documentation, transfer documents, identification documents and stamp duty documents. The process of conveyancing is complex, time consuming and can cause significant financial loss if performed incorrectly.
How much will it cost to have a lawyer help me sell a residential property?
Brander Smith McKnight’s conveyancing and property Lawyers Sydney provide a very competitive fixed fee professional conveyancing service. Our lawyers are committed to providing our clients with clear descriptions regarding the cost of our services.
What is a Cooling-off Period?
In NSW, a cooling off period is the period of time that commences after the exchange of contracts during which the purchaser can rescind their contract for the purchase of a property. That is, they can change their mind and not be financially penalised. This period is 5 working days. There is no cooling-off period if the property is sold at auction.
What if Either of the Parties Cannot Settle on Time?
If either party cannot settle on time, they will request an extension of time. No party is guaranteed an extension of time. It is best to avoid not settling on time by setting an appropriate date of settlement in your contract. BSM Sydney Lawyers can assist with this negotiation.
Can I Sell a Residential Property that has not Been Built yet?
Yes, where a property is sold to a purchaser prior to being built it is a known as ‘buying off-the-plan’. Where a property is sold off-the-plan prospective buyers can review the properties plans, schedules and perhaps visit developments that have been completed by the same developer.
If I Have a Dispute with the Purchaser, do I need to go to Court?
If a property dispute arises during the process of conveyancing, BSM’s experienced Property Lawyers Sydney can assist you in resolving the dispute. Our expert lawyers resolve the vast majority of property disputes without the need for expensive and time-consuming litigation. We have the expertise to achieve excellent results using alternative dispute resolution thus saving you time, money and stress.
Does the Property need to be Vacant Upon Settlement?
Yes, the residential property will need to be vacant upon settlement.
Brander Smith McKnight Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.
About the Author
Ryan RenBachelor of Laws I Bachelor of Commerce (Marketing) I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileRyan holds two degrees from the University of Wollongong, a Bachelor of Laws and a Bachelor of Commerce with a major in Marketing. He also has a Graduate Diploma of Legal Practice from the College of Law and is admitted to practice as a legal practitioner in the Supreme Court of New South Wales and the High Court of Australia. Having been born in the United Kingdom and educated in Australia, Ryan possesses a multicultural perspective. His fluency in Mandarin provides him with the ability to connect with a diverse range of clients. His attention to detail, thoroughness and sharp analytical skills enable him to provide a high quality conveyancing service, particularly when there are complex property issues involved.
