What Is a “Cooling Off Period” When Buying Property?
Whether you are buying your first home or you are an experienced investor, there are a lot of aspects involved in the purchasing process that you need to understand. A key part of property transactions in Australia is what is commonly referred to as the “cooling off period.”
Here we’ll be breaking down the following:
- What a cooling off period is
- How it works
- Why it is an important safety measure for buyers
What Is a Cooling Off Period?
A cooling off period is the period of time following the signing of a contract in which a buyer can cancel the purchase without incurring significant penalties. The period serves to:
- Give buyers time to rethink their decision
- Get comfortable with their choice
- Conduct whatever other due diligence is necessary
- Protect against hurried or forced decisions
How Long Is the Cooling Off Period?
Cooling off period lengths vary between states and territories in Australia. Here is a breakdown:
- New South Wales: 5 business days
- Victoria: 3 business days
- Queensland: 5 business days
- South Australia: 2 business days
- Tasmania: No cooling off period unless in the contract.
- Western Australia: Not at all compulsory
- Northern Territory: 4 business days
- Australian Capital Territory: 5 business days
How Does the Cooling Off Period Work?
Here’s a breakdown of the whole process:
1. Signing the Contract
Find a house you would want to purchase, then sign a contract of sale. Depending on the state or territory you are in, this might include a cooling off period.
2. Cooling Off Period Starts
The cooling off period is considered to start after both parties have signed the contract. Within this period, you can still withdraw from the purchase with minimal or no financial penalties.
3. Doing Your Due Diligence
Buyers usually use the cooling off period to do some important checks such as :
- Building and pest inspections: this ensures the property is structurally sound and does not have pests.
- Finance approvals: this involves an approval of a mortgage or confirmation of financial arrangements.
- Legal advice: this means a consultation with your solicitor or conveyancer on whether there are any unfavorable terms on the contract.
4. Exercising the Right to Cancel
If the buyer intends to cancel the purchase during the cooling off period, it has to be in writing to the vendor or agent.
What Happens If You Cancel?
While cancellation is possible within the cooling off period, there are some financial implications involved:
- Deposit Forfeited: In most states, the vendor is allowed to take a couple of percent of deposits received upon cancellation. In NSW, for example, the vendor receives 0.25% of the purchase price.
- Refund of the Balance: The balance of the deposit is returned back to the purchaser.
These amounts vary, so the actual position is indicated in your contract, for which you might seek advice.
Exceptions and Exemptions
What kind of mitigating circumstances are there?
1. Auctions
Properties that are sold at auction usually do not have a cooling off period. Anyone who bids on properties at auctions is presumed to have conducted their due diligence before taking part because when they sign contracts at auctions, they are bound immediately.
2. Waiving the Cooling Off Period
Sometimes, a buyer may elect to waive the cooling off period, so as to present an offer which is more favorable to the seller. This must not be done hastily simply to please anyone, as it removes the protection.
3. Commercial Properties
Cooling off periods in general apply to residential properties. Commercial property sales do not have cooling off period provisions unless requested and negotiated.
Why is the Cooling Off Period Important?
See why this is such a crucial part of the house-buying process:
1. Consumer Protection
The cooling off period protects the buyer. It ensures that they have the time to properly validate their decision and protects them against high-pressure selling techniques employed by agents and/or sellers.
2. Peace of Mind
Buying property is a huge investment. And, in purchasing, a cooling off period offers the opportunity to double-check every minute detail of the buy and thus provides peace of mind, which is really essential when one is buying for the first time.
3. Risk Mitigation
The same shall apply to any other issues that may arise during the due diligence period, which could be serious structural problems in the property, or financing might not be approved.
Additional Considerations for Buyers
What else is worth thinking about:
1. State-Specific Variations
As indicated above, different states and territories have different cooling off periods, but most states require it. For instance, in Tasmania and Western Australia, there is no set cooling off period. As such, it is crucial for the buyer to understand the system within which they are purchasing.
The set variation from state to state means that buyers can sometimes negotiate conditions with the seller to provide a cooling off period in the contract.
2. Legal Implications
In theory, the cooling off period serves to provide a legal way in which the interests of the parties to a transaction are protected. However, buyers need to know that exercising this right may have implications on the legal dynamics of the sale.
For instance, if the buyer pulls out within the cooling off period, the seller may approach subsequent negotiations with a bit of caution. Legal advice helps buyers navigate such situations and ensure that whatever they do, they do it with informed consent.
3. Impact on Sellers
While the cooling off period is mainly for the buyer’s protection, there are critical implications for the seller too. Selling parties should be ready in case a buyer has to pull out of the sale. This can set back their plans – especially if they plan to use the proceeds from that sale to procure another house. Sellers need to communicate well with their real estate agent and set expectations and strategies as far as cancellation is concerned.
Practical Advice for Sellers
Learn some tips if you’re the seller in this scenario:
1. Pre-Sale Inspection
Selling parties equally stand to gain from pre-sale inspection and making these reports available to prospective buyers. This may be able to reduce the risk of probable withdrawals during the cooling off period by buyers who were oblivious of these findings.
2. Clear Communication
Opening clear lines of communication with the buyer can create trust and significantly lower the possibility of a botched sale. The selling party must be forthright about any issues there may be and be ready to strike a deal in good faith.
3. Flexible Negotiations
This may make the seller’s property more attractive in negotiations. Offering a reasonable cooling off period to prospective buyers – even where not legally required – may also give them additional security and perhaps increase their chances of successfully effecting a sale.
Conclusion
The cooling off period is an important attribute of property dealings in Australia since it is the period during which buyers can review their decisions and ensure to make changes where possible. The more buyers understand how it works and use it to their advantage, the better equipped they are to minimise their risk and make better purchases.
Knowing your rights during the cooling off period can save you from common and expensive mistakes, whether you’re a first homebuyer or adding to your investment portfolio.
Equally important is that it will be to the benefit of the sellers to make sense of the dynamics of the cooling off period. Being prepared for possible cancellations and having effective communication may make all the difference in managing expectations and, therefore, more frictionless transactions.
Ultimately, the cooling off period provides fair and transparent property dealings – one serving the best interests of both buyers and sellers.