Property Options

How Property Owners can walk away from sale options if the paperwork is not right

The good news for you (and the bad news for the buyer) is that if the option document does not strictly comply with the Conveyancing Act (NSW) then the owner can walk away from the option and keep the property. Not only that, the owner can keep the option fees the buyer has paid.

The Conveyancing Act compliances are: the option document must have a full copy of the contract attached to it, with all property searches, it must not be able to be exercised within 42 days, must have a cooling off notice in it and there must be a copy signed by the owner exchanged for a copy signed by the buyer. Note: this applies in NSW only.

In a recent decision, in which I acted for the property owner, the Supreme Court of New South Wales agreed that not one but two options were validly rescinded because of non-compliance with the Conveyancing Act. Not only did the property owner keep the properties – which had increased in value in the 3 years since the options were granted, but she kept the payments the buyer had made in the meantime.

It goes without saying that buyer must be super-careful to ensure that the option strictly complies with the Conveyancing Act or risk losing the property and the option fees.

If you would like to read my summary of the decision, click on Is it fair for a vendor to rescind a non-compliant property option and keep the payments received?

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