Buying a home by private treaty in South Australia: Form 1 to duty

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Kooky

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A home bought by private treaty in South Australia is bought by offer and acceptance rather than under the hammer, and the law treats the two routes very differently. The auction buyer has no cooling-off period. The private treaty buyer signs a contract and then, in the ordinary case, has two clear business days in which the purchase can still be undone with a single written notice. Around that short window sit a disclosure document with a plain name, a limit on how much money can change hands early, and a set of rules on how a price may be advertised.

This guide follows the purchase in the order a buyer meets it: the written offer, the vendor's statement known as the Form 1, the count of the two days, the notice that ends a contract, the deposit before and after cooling-off, the cases in which the right does not exist, building and pest inspections, the rule on advertised price ranges, and stamp duty as RevenueSA states it.

Land and Business (Sale and Conveyancing) Act 1994 of South Australia, sections 5 and 7, version dated 15 January 2026.

Where the rules are written

The rules sit in one South Australian statute, the Land and Business (Sale and Conveyancing) Act 1994, read here in the version dated 15 January 2026 on the state's legislation register. Section 5 creates the cooling-off right and sets the deposit limit, section 7 requires the vendor's statement, and section 24A governs price representations in the marketing of residential land. The forms are in the Land and Business (Sale and Conveyancing) Regulations 2025, which commenced on 1 September 2025.

Three pieces of public guidance explain the rules in ordinary language: the state government's home sales page, last updated on 18 March 2026; an undated tip sheet for buyers hosted by Consumer and Business Services, the state's consumer regulator; and the Law Handbook of the Legal Services Commission of South Australia. Stamp duty has its own authority, RevenueSA.

The offer: in writing, on the agent's form

According to the state government's home sales page, an offer on an advertised property must be in writing, signed, and made on the agent's form. The offer is not binding until a sale contract is signed. The vendor sets a minimum acceptable price and does not have to disclose it, and the vendor may accept another offer without giving a first bidder the chance to raise theirs.

A buyer who wonders whether a rival offer exists has a limited right to know. Section 21 of the Act allows an agent to disclose that an offer has been made, but not its amount or its terms before the sale, and requires written confirmation when it is requested; the maximum penalty for a breach is A$5,000.

The offer is also where conditions are written in. The page lists finance approval, the sale of an existing property, a satisfactory building inspection and a pre-settlement inspection as conditions a buyer may include. It gives one caution about wording: "subject to finance" does not automatically mean a lender of the buyer's choice or a specific loan amount. Whether a condition protects a buyer in a given case therefore depends on how it is drafted.

The Form 1: what it tells and what it leaves out

Section 7 of the Act requires the vendor of land to serve on the purchaser a statement in the form set by regulation, signed by the vendor, at least 10 clear days before settlement. It sets out the purchaser's rights under section 5, the mortgages, charges and prescribed encumbrances affecting the land, and acquisitions of the land within the previous 12 months.

Under regulation 8, the Form 1 has four parts. Part A names the parties and the land. Part B explains the purchaser's cooling-off rights and what proceeding with the purchase involves. Part C is the vendor's statement. Part D is the certificate of the registered agent. That certificate exists because section 9 requires an agent acting for the vendor to make prescribed inquiries, sign a certificate and give a copy to the vendor within 48 hours.

What the Form 1 does not do matters as much. The Consumer and Business Services tip sheet says the statement covers the title, mortgages, easements and zoning, and does not cover encroachments, the accuracy of the title's measurements, or the condition and compliance of the building unless a relevant notice has been issued. Anything outside the form is for the buyer to find out. The tip sheet also says that it is preferable to obtain the Form 1 before signing a contract, although the Act's own deadline is tied to settlement.

Accuracy is a legal duty. Under section 10 the statement must be accurate when it is served, and if circumstances change before the purchaser signs, it is defective until a notice of amendment is served. Under section 15, where the statement was not given, was not certified or was defective, and the purchaser was prejudiced, a court may avoid the contract, award damages against the vendor or the agent, or make other orders.

Counting the two clear business days

Section 5(8) of the Act fixes the deadline, which it calls the prescribed time, in two ways. If the Form 1 was served before the contract was made, the purchaser may give notice until the end of the second clear business day after the day the contract was made. If the Form 1 was served after the contract, the period runs to the end of the second clear business day after the statement was served. The state government's page puts both cases in one line: the two days start when the buyer receives the Form 1 or when the contract is signed, whichever is later.

The Act as read for this guide does not define a business day. The Law Handbook of the Legal Services Commission gives the counting rule: weekends and public holidays are not counted, and neither is the day of service. "Clear" therefore means two whole business days after the starting day.

Two worked examples, each assuming that no public holiday falls in the period:

• The Form 1 is already in the buyer's hands and the contract is signed on a Thursday. Friday is the first clear business day. Saturday and Sunday are not counted. Monday is the second, and the right ends at the end of Monday.
• The contract is signed on a Wednesday and the Form 1 is served two days later, on the Friday. The count starts from the Friday. Monday and Tuesday are the two clear business days, and the right ends at the end of Tuesday, six days after signing.

The second example shows why the timing of the Form 1 matters to both sides: a vendor who serves it late keeps the buyer's exit open for longer. The Form 1 itself covers the extreme case. Where the statement is served less than two clear business days before settlement, Part B says the notice may be given at any time before settlement. In every case settlement closes the right: section 5(8) ends the period at settlement if that comes first, and the state government's page says cooling-off cannot be used once settlement has occurred.

The Law Handbook says the period is usually too short to arrange finance. That is the practical reason conditions are written into the contract rather than left to the two days.

Cooling off: a signed notice, served the right way

No reason is needed. Under section 5(1) the purchaser gives the vendor written notice of an intention not to be bound by the contract, and Part B of the Form 1 adds that the notice must be signed by the purchaser. The contract is rescinded when the notice is served.

How the notice is served decides whether it counts. Section 5(2) lists the permitted methods, and for each one says when the notice is taken to have been given.

Because registered post counts from posting and email from transmission, a notice sent on the last day is in time even if it is read later.

On rescission the purchaser is entitled to the return of money paid under the contract, with two exceptions in section 5(4): money paid for an option to purchase, and a deposit of not more than A$100. Part B of the Form 1 states the same thing from the buyer's side: money paid can be recovered, except a deposit that did not exceed A$100 and any option payment.

The deposit before and after cooling-off

The A$100 figure is also a ceiling on what may be asked for early. Under section 5(5), a vendor or a stakeholder must not demand payment before the prescribed time, other than option money or a deposit of up to A$100 on a sale of land. Section 5(6) closes the obvious gap: receiving money is presumed to be a demand unless the contrary is proved. A breach falls under the general offence in section 14, which carries a maximum penalty of A$10,000.

The Consumer and Business Services tip sheet describes how this works in a sale. A holding deposit of at most A$100 is paid when the offer is made and is returned if the offer is not accepted. If the buyer cools off, the vendor can keep it. A further deposit is paid once the cooling-off period expires. Deposits are held in trust until settlement, and by law an agent must pay the deposit into a trust account.

How large the further deposit is, the Act as read here does not say. It contains no percentage cap for a deposit on land. The 10 per cent figure that appears in the state's guidance is described there as the usual minimum at auction, not as a rule for private treaty. In a private sale the amount and the due date are terms of the contract, which is why "deposits" is on the state government's list of what a contract should set out.

What the Act does control is the shape of the payments. Section 6(1) makes void a contract that requires part of the price, other than a deposit, to be paid before settlement, and section 6(3) defines a deposit as an amount paid in a lump sum or in not more than three instalments before settlement. The tip sheet puts it simply: no more than three payments by way of deposit.

A worked example, with figures chosen for illustration: a home is bought for A$650,000 under a contract that sets a total deposit of 10 per cent, a term assumed for the example and not a statutory figure. The total deposit is A$65,000. A$100 is paid with the offer. The remaining A$64,900 falls due once cooling-off has ended, and A$585,000 is paid at settlement. Had the buyer cooled off, A$100 is the whole of what the vendor could keep.

After the two days the position changes. The state government's page says that withdrawing after cooling-off has expired may be a breach of contract. The buyer could lose the deposit and may owe compensation based on the vendor's costs of reselling, including any loss on the later sale.

When there is no cooling-off

Section 5(7) lists the cases in which the right does not exist. For a home buyer, four matter.

Sale by auction is the first: there is no cooling-off, and the same applies to a person who bid at an auction where the property did not sell and who signs a contract on the same day. An offer accepted before auction day is different. The state government's page says such a buyer has cooling-off rights unless they are waived.

Waiver is the second. Under section 5(7)(b) the right falls away where the purchaser received independent legal advice and a legal practitioner signed a certificate in the approved form. In the Regulations this is Form 3: Part A is the practitioner's certificate that advice was given before the contract was entered into, and Part B is the purchaser's instrument of waiver. The Law Handbook says the waiver is made through a solicitor's certificate and is usually used for a pre-auction offer.

The third and fourth are sales by tender and the exercise of an option, each subject to timing conditions set out in the section. Two further exceptions concern a body corporate buying land that is not residential land, and a contract for land that also sells a business that is not a small business.

Building and pest inspections

Nothing in the sources read for this guide makes an inspection compulsory. What the law provides is a prompt. Under section 13A of the Act, a vendor of residential land must take reasonable steps to deliver a prescribed notice to a purchaser who inspects the property, and must attach it to the vendor's statement. The tip sheet calls it Form R3 and says it is made available at inspections.

According to the Consumer and Business Services tip sheet, the Form R3 draws attention to possible asbestos, structural problems caused by termites or salt damp, illegal building work, and whether there is a septic tank. It also prompts questions about energy efficiency and rainwater connections.

The tip sheet names three kinds of inspector: a surveyor, architect or building consultant; a structural engineer; and a licensed pest inspector. It recommends a written quote and notes that not all inspectors check air conditioners, plumbing or electrical systems.

Unauthorised work deserves its own check. The tip sheet says that where a property has had renovations, the local council can confirm whether the correct planning permission was given, and that illegal alterations could become the buyer's responsibility. The Form 1 will not show the problem unless a notice has been issued.

The state government's page lists a satisfactory building inspection and a pre-settlement inspection among the conditions a private treaty offer can carry. The tip sheet says the pre-settlement inspection normally takes place about a week before settlement, and notes that standard inspection clauses usually protect the buyer only for major structural defects.

The asking price: one figure, or a range of 10 per cent

A buyer comparing listings can rely on a rule about how residential prices are represented. Under section 24A of the Act, a representation of the likely selling price in the marketing of residential land must be a single figure or a range, and both are tied to a floor the Act calls the prescribed minimum advertising price. That floor is the greater of two numbers: the agent's estimate of the selling price and the price the vendor is seeking.

A single figure must not be less than the floor. A range must be expressed as two single figures, its lower limit must be at or above the floor, and its upper limit must not exceed 110 per cent of the lower limit. The maximum penalty is A$20,000 or one year's imprisonment.

A worked example: a range that starts at A$600,000 can end no higher than A$660,000, which is 110 per cent of the lower figure. A range of A$600,000 to A$700,000 would be outside the section.

The rule fixes where a range may start and how wide it may be. It does not follow that the vendor will accept a figure inside the range: the state government's page says the vendor's minimum acceptable price does not have to be disclosed.

Stamp duty as RevenueSA states it

RevenueSA's page on real property, updated on 6 October 2026, says only transfers of an interest in residential and primary production land remain liable to duty. Duty is based on the greater of the value of the land, including improvements, and the consideration, including GST, unless an exemption, concession, rebate or reduction applies. The usual practice, it says, is that the purchaser pays the stamp duty and the Lands Titles Office registration fees. The Consumer and Business Services tip sheet lists paying stamp duty, registration fees and transaction fees among the tasks a conveyancer carries out on the buyer's behalf.

The rates are on RevenueSA's rate of stamp duty page, last modified on 11 November 2024 and read again on 10 October 2026. The page gives no date from which the table applies, and RevenueSA's real property page says changes to the treatment of qualifying land and residential land took effect on 15 September 2026 and that its website is still being updated, so the table is given here as published and should be checked against RevenueSA before it is relied on. Duty is charged for every A$100 or part of A$100, so a fraction of A$100 is charged as a whole one.

Applied to the home in the earlier example, at A$650,000: the price is A$150,000 over A$500,000, which is 1,500 lots of A$100. At A$5.50 each that is A$8,250, and with the base amount of A$21,330 the duty comes to A$29,580. The same method gives A$18,830 on a price of A$450,000, where A$150,000 over A$300,000 is charged at A$5.00 per A$100. Both figures are worked examples that assume the price equals the value and that no relief applies.

Relief for first home buyers is narrower than its name suggests. RevenueSA's first home buyer relief page, updated on 16 September 2026, says it applies to contracts entered into on or after 15 June 2023 for a new home, an off-the-plan apartment, or vacant land on which a new home will be built. Established homes are not on the list. Each applicant must be a natural person aged at least 18. For contracts made on or after 13 February 2025, a buyer must have held no prior interest in residential property. Applicants must live in the home for a continuous period of at least six months, starting within 12 months of settlement, and a refund claim must be made within five years of settlement. The page says property value caps may apply depending on the contract date, without giving the amounts.

One other point on RevenueSA's real property page concerns particular buyers. Foreign purchasers of residential land in South Australia have paid a foreign ownership surcharge since 1 January 2018; the page does not state the rate.

What the sources leave open

The Act as read does not define a business day; the counting rule comes from the Law Handbook, whose cooling-off page carries a revision date of 18 December 2013 in its footer while citing the 2025 Regulations. The Act sets no percentage for a deposit on land after cooling-off, so the amount in any sale is whatever the contract provides. The full text of the Form R3 and of the Form 3 waiver was not available in the version of the Regulations read, and both are described here from the guidance and the regulations that refer to them.

On duty, RevenueSA's rates page gives no date from which its table applies, and its real property page says changes affecting qualifying land and residential land took effect on 15 September 2026 and that its content is still being updated. The foreign ownership surcharge rate, the value caps for first home relief and any deadline for paying duty are not on the pages read.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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