If you are preparing to sell a home in New South Wales, one of the first questions to answer is what you are legally required to tell a buyer. NSW does not ask sellers to list every defect in a property, but it does require specific documents, warranties and disclosures, and getting them wrong can let a buyer walk away from the contract after exchange.
At Hills Solicitors, we have prepared contracts for sellers across Maitland and the Hunter Valley since 1894. This guide explains what NSW law requires a seller to disclose, what your agent must tell buyers, and the local issues that often come up when selling in the Hunter.
The Short Answer: Specific Disclosure, Not Full Disclosure
NSW property law still starts from the principle that the buyer should make their own inquiries. A seller generally does not have to point out every crack, leak or worn fitting. However, that principle is heavily qualified by legislation. The Conveyancing Act 1919 and the Conveyancing (Sale of Land) Regulation 2022 require certain documents to be attached to every residential contract, and the Property and Stock Agents Regulation 2022 requires agents to disclose certain material facts. On top of that, a seller who says something misleading, or hides a problem, can be liable for misrepresentation.
1. The Prescribed Documents Attached to Your Contract
Before a buyer signs, the contract for sale of residential property must have the prescribed documents attached. These include:
- A title search showing who owns the land and any registered interests, such as mortgages, easements or covenants.
- The registered plan of the land.
- Copies of dealings that create easements, restrictions on use or positive covenants affecting the land.
- A sewer drainage diagram from the water authority, which in most of the Lower Hunter is Hunter Water.
- A planning certificate issued by the local council under section 10.7 of the Environmental Planning and Assessment Act 1979, showing the zoning and any planning controls, including flood, bushfire and mine subsidence notations.
Strata properties have additional requirements, and the contract must also set out the prescribed warranties and a notice about smoke alarms and loose-fill asbestos insulation.
2. Swimming Pool Certificates
If the property has a swimming pool or spa, the contract must include one of the following: a valid certificate of compliance, a relevant occupation certificate with evidence the pool is registered, or a certificate of non-compliance. If you attach a certificate of non-compliance, the buyer has a set period after settlement to fix the issues. This requirement does not apply to strata or community schemes with more than two lots, or to off-the-plan contracts.
3. Material Facts Your Agent Must Disclose
Your real estate agent has a separate obligation to disclose certain prescribed material facts to prospective buyers. Under the Property and Stock Agents Regulation 2022, these include whether:
- the property has been subject to flooding from a natural weather event or bushfire within the last five years;
- the property is subject to significant health or safety risks;
- the property is listed on the loose-fill asbestos insulation register;
- the property was the scene of a murder or manslaughter within the last five years;
- the property was used to manufacture, cultivate or supply prohibited drugs within the last two years;
- the building is subject to certain orders about external combustible cladding; or
- the building is subject to certain rectification, prohibition or stop work orders.
Agents are also expected to disclose any other fact that a reasonable buyer would consider important. Because your agent relies on you for this information, tell them about anything that might be relevant at the start of the listing, not after a buyer has made an offer.
4. Do Not Mislead the Buyer
Even where you are not required to disclose something, you must not mislead a buyer about it. Telling a buyer the roof has never leaked when you know it has, or painting over water damage to hide it, can give the buyer a claim for damages or, in some cases, a right to set the contract aside. The safest approach is simple: answer questions honestly, and if you are unsure, say so and let the buyer make their own inquiries.
What Happens If You Get Disclosure Wrong?
The consequences depend on what was missed:
- A missing prescribed document generally gives the buyer a right to rescind the contract within 14 days of exchange. In a falling market, a buyer with second thoughts may use that right.
- A breach of a prescribed warranty can also allow the buyer to rescind, depending on when it is discovered and the terms of the contract.
- Misrepresentation can lead to a damages claim or an attempt to terminate, often after settlement when the buyer discovers the problem.
Any of these can delay your settlement, which matters if you are relying on the sale proceeds to buy your next home.
Disclosure Issues We See Often in the Hunter
Some disclosure issues are especially common for sellers in Maitland, Cessnock, Kurri Kurri, Thornton and the surrounding area:
- Flood notations. Many properties on or near the Hunter River floodplain carry flood-related notations on the planning certificate. If the property has actually flooded in the last five years, that is also a material fact your agent must disclose.
- Mine subsidence. Large parts of the Lower Hunter are within declared mine subsidence districts. The planning certificate will show this, and buyers may ask whether past building work was approved by Subsidence Advisory NSW.
- Unapproved building work. Garages, granny flats, decks and enclosed verandahs built without approval are common in older Hunter homes. They are not always a legal barrier to selling, but buyers and their lenders will ask about them, so it is better to know in advance.
A Seller’s Disclosure Checklist Before You List
- Engage your solicitor before signing the agency agreement so the contract can be prepared first.
- Tell your solicitor and agent about any flooding, bushfire, pool, asbestos or structural issues you know of.
- Find any approvals, occupation certificates or pool certificates you hold.
- List what is included and excluded from the sale.
- If the property is tenanted, have the lease and bond details ready.
- Apply for your ATO clearance certificate, which every seller now needs before settlement.
Frequently Asked Questions
Do I have to tell buyers about defects when selling a house in NSW?
Not every defect. NSW requires specific disclosure through the prescribed documents and warranties, and your agent must disclose prescribed material facts. You are not generally required to list every defect, but you must not mislead a buyer or hide a problem, and you should answer their questions honestly.
Do I have to disclose that someone died in the house?
A death from natural causes is not a prescribed material fact. However, your agent must disclose if the property was the scene of a murder or manslaughter within the last five years. If you are unsure whether something needs to be disclosed, ask your solicitor before the property is marketed.
Do I have to tell buyers that the property has flooded?
If the property has been flooded by a natural weather event in the last five years, your agent must disclose it as a material fact. Flood planning notations will also appear on the council planning certificate attached to the contract.
Can a buyer cancel the contract if a document is missing?
Generally yes. If a prescribed document was not attached to the contract before the buyer signed, the buyer can usually rescind within 14 days of exchange, unless the sale has already settled. This is why the contract should be checked carefully before it is sent to buyers.
Get Your Contract Right From the Start
Correct disclosure starts with a properly prepared contract. Our selling property team prepares your contract before listing, checks the documents, and guides you through to settlement. For an overview of the whole process, see our conveyancing services.
Book a consultation with our conveyancing team today, or call us on (02) 4933 5111. Check our FAQ page if you have any questions.
This article is general information only and is not legal advice. Disclosure rules can change, so get advice on your own sale.
