Updated 28 October 2026
Contract for Sales - Seller’s Most Asked Questions #11: What should I disclose to potential buyers?
CM Lawyers property sale services
Selling a home in NSW involves more than agreeing on a price. Your contract must contain the required disclosure documents, and information given to buyers must be handled accurately. A missing document, misleading answer or unresolved council issue can disrupt a sale and expose those responsible to legal action.
However, NSW does not impose a single blanket rule requiring every private homeowner to list every physical defect. Sellers’ contractual and statutory obligations differ from the obligations imposed on licensed agents. This guide explains those differences and the information to give your lawyer before marketing begins.
Prepare the contract before advertising
A residential property cannot be offered for sale until the proposed contract is prepared. Your lawyer should identify the attachments needed for your particular title and transaction. Common requirements include a title search, relevant plans, a council planning certificate, drainage diagrams and documents recording easements, restrictions or positive covenants. Required notices concerning smoke alarms and loose-fill asbestos insulation must also be included.
A swimming pool or spa may require a valid compliance certificate, a qualifying occupation certificate with registration evidence, or a valid non-compliance certificate. Exceptions apply, including certain strata and community schemes and off-the-plan contracts. Selling with a non-compliance certificate needs advice about the responsibilities involved.
An old contract from when you bought the property should not simply be reused. Changes to title, planning controls, building work and prescribed requirements can make its contents unsuitable for the new sale. For contracts exchanged from 1 June 2026, the new prescribed cooling-off notice must be used. The Registrar General confirms that the earlier transition period has ended.
Understand the seller and agent distinction
Vendor disclosure under section 52A of the Conveyancing Act and the Sale of Land Regulation operates through prescribed documents, warranties and contract terms. Whether a particular defect or restriction needs specific disclosure depends on those rules, the contract and the facts. Private sellers can also face claims involving fraud or misrepresentation; a routine private home sale is not automatically a transaction in trade or commerce.
Agents have separate statutory duties. Current NSW guidance explains that an agent must not induce a transaction through false or misleading statements, or fail to disclose prescribed material facts that the agent knows or ought reasonably to know. Other misleading omissions can also cause problems. A seller cannot safely instruct an agent to conceal information merely because it might discourage buyers.
Give your lawyer the property history
Before drafting begins, assemble council notices, development consents, occupation certificates, renovation records, insurance claims, repair invoices and correspondence about disputes. Identify boundary disagreements, encroachments, drainage problems and uncertainty about lawful access. Your lawyer can decide which matters require contract disclosure, further investigation or a specific condition.
Flag unapproved alterations, converted garages, additional bathrooms and work affecting common property. A planning certificate does not establish that every structure or use has approval. Avoid describing an area as an approved bedroom or self-contained dwelling until the relevant records have been checked.
For physical problems, provide the known facts: when water entered, what the pest inspector found, what was repaired and whether the problem returned. Do not guess that a repair permanently solved an issue or promise that electrical, plumbing or air-conditioning systems will last for a particular period.
Check material facts and marketing statements
The prescribed facts agents must consider include flooding from a natural weather event or bushfire within the previous five years; significant health or safety risks; inclusion on the loose-fill asbestos insulation register; murder or manslaughter at the property within five years; and certain drug manufacture or cultivation within two years. Specified cladding notices and building orders are also covered.
These categories should prompt a careful discussion with your agent and lawyer. They do not turn every asbestos-containing product, neighbourhood disagreement or maintenance issue into the same statutory category.
Check advertisements, floor plans, photographs and answers to enquiries against the supporting records. If an earlier statement becomes inaccurate, arrange its correction promptly. Keep a written record of important questions and the information supplied in response.
Handle building and pest reports carefully
A seller is not generally required to commission a building or pest report. NSW’s specific inspection-report rules also do not oblige vendors to tell agents about existing reports. Agents, however, must record details of relevant reports they know about or can reasonably obtain and disclose those records when a prospective buyer requests the contract. This does not necessarily require giving the buyer the report itself.
As a practical precaution, give existing reports to your lawyer for review. Their contents may raise separate disclosure or misleading-conduct issues. A report should not be selectively quoted to suggest that an unresolved problem has disappeared.
Buyers should arrange appropriate independent building and pest inspections and understand the inspector’s scope, exclusions and access limitations. A contract review cannot establish whether concealed termite damage, leaking waterproofing or unsafe wiring exists.
Deal with strata records and tenants
For a strata property, review the required title documents, plan and by-laws, together with information about building defects, litigation, proposed works and special levies. Give your lawyer recent notices and meeting records so that the contract addresses relevant liabilities and adjustments. A buyer’s strata inspection and financial certificate provide different information from a physical building inspection.
If tenants occupy the property, supply the tenancy agreement, variations, rent details and relevant notices. Decide whether the sale will be subject to the tenancy or require vacant possession. A sale does not automatically end a lease. Current NSW termination rules require an applicable ground and compliance with notice and supporting-document requirements. Obtain advice before promising that tenants will leave by settlement.
A verified decision about undisclosed property history
In Hinton v Commissioner for Fair Trading [2007] NSWADTAP 17, the NSW Administrative Decisions Tribunal Appeal Panel considered disciplinary findings against agents who marketed a North Ryde house without telling the purchasers it had been the scene of a triple murder. The buyers learned its history after contracting and sought release.
The decision records that the executrix eventually released the buyers and returned their full deposit. The agents’ appeal was dismissed. Monetary penalties of $13,200 against the company, $5,500 against Peter Hinton and $2,200 against Ereca Hinton remained in place. These were disciplinary penalties, not compensation awarded to the purchasers.
The appeal concerned the legislation as it then stood. Today’s prescribed-material-fact rules must be checked separately. Its practical lesson remains relevant: a complete-looking contract and ordinary property searches may not reveal a significant history known to the agent. The decision does not establish that every private seller must disclose every defect, or that every disclosure failure automatically entitles a buyer to damages.
Act early if an omission is discovered
Missing prescribed attachments can give a purchaser a statutory right to rescind within 14 days after the contract is made, subject to the statutory exceptions and provided the contract has not already been completed. Breaches of prescribed warranties involve different requirements. Other remedies depend on the claim, evidence, timing and loss; an omission does not produce an automatic compensation amount.
If an error emerges during the campaign or after exchange, tell your lawyer immediately. Preserve the contract versions, reports, emails, advertisements and inspection records. Your lawyer can assess whether documents need correction, whether the purchaser has rights and how to respond without creating another misleading statement.
A practical checklist before your sale
First, gather the title, approval, repair, insurance, strata and tenancy records. Next, give your lawyer a written account of known problems and uncertainties. Have the contract and attachments checked before advertising. Review the agent’s proposed descriptions and agree how questions will be answered.
Keep the information current throughout the campaign and obtain advice about any new notice, defect or dispute. Contact CM Lawyers for help reviewing the contract and disclosures before your NSW property is offered for sale.
General information for NSW residential property sellers only, not advice on a particular transaction or dispute. Have a lawyer check your circumstances and documents before acting.
Key resources
NSW Government guidance on sale contracts — required contract documents and pool certificates.
NSW Registrar General guidance for practitioners — the updated cooling-off notice and commencement dates.
NSW Government guidance on agents and material facts — agents’ disclosure duties, misleading statements and omissions.
NSW Government guidance on pre-purchase reports — recording and disclosing details of inspection reports.
NSW Government guide to property inspections — building condition checks before buying.
NSW Government guide to buying strata property — by-laws, records, levies and building issues.
NSW Government guidance on ending a tenancy — lawful grounds, notices and supporting documents.
Hinton v Commissioner for Fair Trading [2007] NSWADTAP 17 — judgment concerning agents’ failure to disclose property history.
Conveyancing (Sale of Land) Regulation 2022 — prescribed documents, warranties and rescission rules.
