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Your rights as a seller – know what they are

Selling any property can be a busy time, but when you’re preparing to make way for new owners, it’s important to understand what your rights are and what you can and can’t take with you on settlement, how your conveyancer can help you handle contract negotiations, and what to do if the sale falls through.

Your obligations as a seller – fixtures

Whether it’s an established house or unit, there are two classes of items in a property: items that are included in the sale and items that are excluded from the sale.
Items that are fixtures are automatically included in the sale of a property. Legally, unless there are specific clauses itemising any exclusions, eg. your favourite pendant light, the fixtures present at the property on the date the contract is formed must be present (and remain at the property) on the date of settlement.

Put simply, a fixture is anything that is physically attached (or fixed) to the property and can’t be removed without causing damage to the property.

So, before you get out the screwdriver to dismantle all those TV brackets on your living room walls and bedrooms, think again as you may be responsible to rectify any damage to the walls. If you have any doubts, check the terms of your contract with your trusted conveyancer.

What you can and can’t take with you when selling your home

Imagine tipping your house upside-down and shaking it like a snow globe.
What falls out is typically what you can take with you and what stays attached is a fixture and has to remain (unless you need a better tradie!).

For example, that free-standing fridge you love is yours to unplug and take to your new address, however, if that fridge has been plumbed-in to a water supply, then it has become a “fixture” and should remain.

When it comes to your stove, and other integrated appliances (e.g., a rangehood, cooktop or dishwasher) as well as, carpets, doors and security screens, alarm and security systems, built-in shelving, light fittings, ducted heating & cooling systems, hot water services, solar panels, letterboxes, ceiling fans, motorised garage doors blinds and curtains, these are ‘fixtures’ and need to stay. Free-standing furniture and appliances, rugs, as well as hanging artworks and mirrors, are considered personal belongings and may be taken.

If your property includes a swimming pool, any equipment necessary to operate or maintain the pool is considered to a “fixture” and must remain.  Similarly, remote controls for appliances such as air conditioners or garage doors must remain as they are necessary to operate “fixtures” installed at the property.

In the garden, plumbed sprinkler systems, built-in water features, a fixed clothesline, garden sheds cemented into the ground, your teenager’s basketball hoop affixed to the garage wall, and other landscaping-related items, such as plants with roots in the ground, are all considered fixtures.

Hanging baskets or potted plants decorating a backyard pergola, or that portable composting system tucked in the corner of your garden, is yours to put on the truck when the removalists arrive.

What if you change your mind about the sale of your property?

It’s important to take any property transaction seriously, so if you are having second thoughts about the sale of your property, you should be aware of the risks (and potential costs) that this will likely incur.

By pulling out of a sale after contracts have been signed and exchanged, you are breaking a legally binding agreement, so it’s important to talk to a trusted conveyancer to understand your options – and the potential penalties you may face.

Your real estate agent may recoup marketing expenses, as well as lost commission, while a disgruntled buyer may seek to have their finance-related and legal expenses repaid and may even commence legal action against you for breach of contract.

Remember that moving out of your much-loved family home means managing your memories associated with the property. It’s natural to feel a mix of emotions at this time, but by trying to focus on the positives ahead – including life at your new address – you can look forward to the new memories you’re about to create.

What if the buyer wants to pull out of your property sale?

A buyer has limited change of mind rights allowing them to withdraw from a contract.

This is known as “cooling off” and these rights differ depending on the state or territory where the property is situated. If your buyer does change their mind after committing to the contract, there are potential financial implications for them.  It is important to speak to your conveyancer to understand what the buyer’s cooling off rights are in your state or territory.

Cooling off periods are generally limited to a certain number of days after the date of the contract.

If your buyer has waived their cooling off rights or the cooling off period has expired, any attempt to pull out of the agreement may be considered a breach of contract.  It certain circumstances, where a buyer is in breach of the terms of the contract and the contract is terminated, they may lose the whole of the deposit paid.

Some contracts include certain special conditions that allow a buyer to pull out of the contract after signing, such as ‘subject to building and pest inspection’ and ‘subject to finance’. With your conveyancer’s guidance and support, you can make sure you have fulfilled your own obligations as seller and get the right legal advice as to what rights your buyer has and what to do if they renege on the contract.

The importance of planning

As a seller, using the services of a professional conveyancer, to ensure your contract of sale protects you as much as possible, is always recommended.

Have a question about the process? Or want to speak to a member of our team?

We’re here to help. You can get in touch on 1300 932 738.

This article is provided for general information purposes only. Its content is current at the date of publication. It is not legal advice and is not tailored to meet your individual needs. You should obtain specialist advice based on your specific circumstances before taking any action concerning the matters discussed in this article.

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