The 2026 NSW Contract for Sale: What Commercial Property Buyers and Sellers Need to Check Before Signing

The cooling off notice: does it apply to your deal?

The headline change is a revised statutory cooling off notice, introduced by the Conveyancing and Real Property Amendment Act 2025 (NSW). From 1 June 2026, it must be used in every contract for the sale of residential property and every option over residential property in NSW. A purely commercial sale generally has no statutory cooling off period, but the definition of residential property in the Conveyancing Act 1919 (NSW) can catch assets our commercial clients would never call residential.

Take extra care if the property:

• includes a shop top apartment or any other dwelling
• is a mixed use building being sold as a single lot
• is a development site with an existing house on it
• is being sold under an option over residential land

Sellers: the real cost of an outdated form

In our experience, old contract forms can linger in some precedent folders long after a new edition arrives. If a residential contract does not contain the correct cooling off statement, the buyer may be able to rescind and recover their deposit. That turns a small drafting oversight into a lost sale.

Before exchange, sellers should:

• confirm the contract is the 2026 edition, not a reused 2022 precedent
• update any draft prepared on the 2022 form using the Law Society’s one page revised notice
• ask their lawyer whether the property is residential property before assuming the notice is irrelevant

Put and call options: certainty for developers at last

Put and call option deeds are a common way for developers to secure a site, and the Supreme Court’s decision in BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265 created real doubt about how cooling off rights applied to put options over residential property. The 2025 Amendment Act resolved this by confirming that an option includes both put and call options. Where the land is residential property, the cooling off right generally sits with the option itself rather than the contract formed when it is exercised.

What this means in practice:

• option deeds over residential land need the revised cooling off notice from 1 June 2026
• the buyer’s cooling off right under the option can generally be waived with a certificate from their lawyer under section 66ZF of the Conveyancing Act
• option deeds drafted before August 2025 should be reviewed before they are signed

Clearance certificates: now needed on every sale

The 2026 edition updates the contract’s foreign resident capital gains withholding provisions to reflect the 15% rate and the removal of the old $750,000 threshold. Since 1 January 2025, a seller who wants the full price at settlement generally needs to provide an Australian Taxation Office clearance certificate, whatever the sale price. Without one, the buyer must withhold 15% of the price and pay it to the ATO.

• Sellers: apply for a clearance certificate as early as possible. Many issue within a few days, but some can take up to 28 days.
• Joint owners: each seller needs their own certificate.
• Buyers: check you hold a valid certificate for every seller before settlement.
• The tax side of any sale is one for your accountant. Our job is to make sure the contract and settlement paperwork are right.

AML/CTF: expect more questions before exchange

The 2026 edition adds a new warning about the anti-money laundering and counter terrorism financing regime. From 1 July 2026, real estate agents, solicitors and licensed conveyancers who provide designated services in property transactions are regulated by AUSTRAC under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). In practice, this means more identity checks and, in some cases, questions about where the funds are coming from.

To avoid delays:

• have identity documents ready for every individual, company director and beneficial owner
• expect trusts and layered company structures to take longer to verify
• build this into your timetable, particularly where the exchange window is short

Off-the-plan and conditional contracts: clauses 28 and 29

Clause 28 deals with land sold before the plan is registered, and clause 29 deals with contracts subject to a condition. In Ahmau Developments Pty Ltd v Preet [2025] NSWSC 604, Justice Parker of the Supreme Court commented on the potential overlap between the two. The 2026 edition now makes clear that clause 29 does not apply to an event covered by clause 28, and aligns the wording so a party must do ‘whatever is reasonably necessary’ under both.

For developers selling lots before registration:

• check your special conditions do not reintroduce the overlap the new edition removes
• review registration and sunset conditions against the amended wording
• do not assume a contract that worked on the 2022 form will work the same way now

Practical takeaways before you sign

• Use the 2026 edition for every NSW sale, even where you think cooling off does not apply.
• Confirm early whether the property falls within the definition of residential property.
• Sellers should apply for a clearance certificate before the property goes to market.
• Developers should review option deeds and off-the-plan special conditions against the new wording.
• Allow extra time before exchange for AML/CTF identity checks.
• Have a commercial property lawyer review the contract before you sign, not after.

Talk to a commercial property lawyer before you sign

The cheapest time to fix a contract is before anyone signs it. Whether you are buying, selling or securing a development site, Jaide Law can review your contract and flag the risks early. Book a complimentary property call with our team to talk through your commercial property matter.

Disclaimer — We know most of you get this, but just to be clear, the information above is general and doesn’t consider your unique situation. Please don’t rely on it as a substitute for professional advice. We strongly encourage you to seek appropriate guidance for your specific needs.