Love it or hate it, the rights of property buyers to a “cooling off” period now exists in all Australian states and territories bar one. It would seem WA didn’t get the memo.

HHome to sandgropers and the AFL premiers, some of us locals have come to know WA by its other acronyms of a World Away or if you are planning on actually getting anything done Wait Awhile.

The curious case of WA being the last remaining bastion of “too bad, so sad” is the perfect accoutrement to “caveat emptor”. If being ignorant wasn’t enough we’re not about to give you time to go out and discover something that might give you cause to rethink your decision.

Don’t despair WA property buyers we do have safe guards, they are mostly found in windowless offices hunched over a keyboard and have a phone permanently affixed to the side of their head. Yes, it’s your humble conveyancer, the experienced property professional whose wisdom and sagely advice on what conditions and clauses can be included on a standard contract could potentially save you thousands. Trouble is, many buyers suffer from FOMO, or as any teenager will explain, with a roll of their eyes, is the Fear Of Missing Out.  FOMO is a big determinant which drives buyers to sign a contract without any assistance or expert advice here in WA. This isn’t helped by the classic sales rep one-liner “I’ve got another buyer really interested”.

To combat FOMO, it was recently suggested by an aicwa member that a “cooling off” period could be waived only if the contract was prepared by a conveyancer. This idea is not that dissimilar to what occurs in NSW with the use of the “66W certificate” prepared by conveyancers which basically waives all the buyers cooling off rights

A lack of a “cooling off” period in WA wouldn’t be so bad if buyers had access to a central registry of notifications and limitation affecting their use and enjoyment of a property. Surely this is a job for the Land Registry?  While the Land Registry in WA (Landgate) would seem the likely location for ignorance busting information, sadly, and for varying reasons, this has not been possible. It is not uncommon for the Certificate of Title to be one of many pieces in a much larger property puzzle that sees relevant information and notifications held by local councils and various state government departments. To their credit Landgate have attempted to tackle this issue with the introduction of Property Interest Reports (PIRs). PIR’s are similar to those found in South Australian, which are coincidentally named PIR, and report on 76 potential interests, which is an impressive list but there are omissions.

The lack of a central repository of interests and notifications has led WA MP Rick Mazza, of the Shooters, Fishers and Farmers Party, to raising a motion in WA Parliament that led to a now pending inquiry into the need for registration on the Certificate of Title of all encumbrances. The inquiry has also been tasked with a review into a compensatory scheme for property owners who suffer a loss or diminished capacity to utilise the land to generate wealth i.e. Farming.

Across the globe there are many varying examples of a “cooling off” period with some only impacting new builds such as in Ontario Canada. In the UK the period can vary between 7 and 14 days restricting the Real Estate Agent from marketing the property during the agreed period.  In France they call it “délai de rétractation” or “withdrawal period”, which was previously 7 days for those residing in France and 14 days for those purchasing from abroad, this has now changed to 10 days for everyone.

Equally there are many examples where “cooling off” periods are either not in place or are captured as part of general consumer protection law provisions.

Fun Fact: “Chancel Repair liability”.

Changes and new laws brought about by Henry VIII across England and Wales when he dissolved the 15,000+ churches and sold the buildings and land, meant the ongoing liability for repair passed with the land, even after being subsequently subdivided many times over. Liability for repair does not necessarily show on the title deeds, therefore, solicitors will often advise to take out insurance against repair claims. In some circumstances the only option for a buyer to establish if there is a repair liability is to check with the local parish. Some sense has now prevailed, since October 13^th, 2013, churches have been required to register their claim to repairs on the title. In the event they have not, the Church’s ability to claim repair cost ends with any new owners who take possession after October 13^th 2013.

“Cooling Off” across Australia

• TAS is the most recent to introduce change of 3 business days but as yet no penalties or forfeiture of deposit occur at termination.

• NSW has 5 business days whereby the buyer forfeits 0.25% of the purchase price to the seller on termination.
• VIC has 3 business days whereby the buyer must pay 0.2% of the purchase price to the seller on termination.
• QLD has 5 business days whereby the buyer forfeits 0.25% of the purchase price from the deposit paid by the buyer.
• SA has 2 business days whereby any deposit paid that was over $100 will be refunded in full, but the buyer forfeits any holding deposit.
• ACT has 5 business days whereby the buyer forfeits 0.25% of the purchase price to the seller.

• NT has 4 business days however both the purchase deposit and holding deposit will be refunded to the buyer upon termination

• QLD has 5 business days whereby the buyer forfeits 0.25% of the purchase price from the deposit paid by the buyer.
• WA has no days and 100% penalty of the sale price leaving the buyer with the property!

Other additional jurisdictional nuances worth noting are NSW where  a “cooling off period “ does not extend to a property purchased at auction or after it was passed in at auction. The same applies for VIC where the cooling of period will not apply if

• the property was purchased at a public auction or within three clear business days before or after a public auction
• the property is used mainly for industrial or commercial purposes
• the property is more than 20 hectares and used mainly for farming
• you previously signed a contract for the same property with the same terms
• the buyer is an estate agent or corporate body.

To find out more on how “cooling off” works in your state or territory speak to your friendly AIC Division contact.