You found the one. You made the offer. You signed the contract. You are in the cooling off period, five whole days to make sure your finance is sorted and everything checks out.
And then you drive past the property on Saturday morning and there is an open home happening.
Your property. With other buyers walking through it.
What on earth is going on?
⚠️ General information only, not legal advice. Every situation is different. Speak to your conveyancer if you have concerns about your specific contract.
First: What Actually Is the Cooling Off Period?
In NSW, when you buy a residential property through private treaty (not auction), you get a five business day cooling off period after contracts are exchanged.
During those five days, you can pull out of the contract, but it will cost you. If you walk away during the cooling off period, you forfeit 0.25% of the purchase price. On a $1 million property, that is $2,500 gone.
Here is the part that confuses most buyers:
✅ The cooling off period protects the buyer, not the vendor.
The vendor is locked in from the moment contracts are exchanged. They cannot sell to anyone else. They cannot accept another offer. They are committed.
You, on the other hand, still have a way out, for five business days.
So Why Is the Agent Still Showing the Property? 🤔
This is where it gets morally murky, and legally interesting.
The short answer is: it is not illegal for an agent to continue showing the property during the cooling off period.
As Kylie puts it, “I find it morally wrong, but not legally wrong.”
Here is why it can happen:
The vendor cannot enter into another contract while your contract is on foot
But the agent is still legally required to present any offers they receive to the vendor
So technically, the agent can show the property and collect offers, they just cannot exchange on them while you are still in cooling off
Think of it like being first in line but someone is still showing other people the queue.
The Vendor Is Locked In, But They’re Watching the Backup Queue 👀
Here is the practical reality of what is happening:
| The Vendor | You (The Buyer) | |
|---|---|---|
| Locked in? | ✅ Yes — from exchange | ❌ Not fully — you have a way out |
| Can they sell to someone else? | ❌ Not while your contract is on foot | N/A |
| Can they accept other offers? | ❌ Cannot exchange another contract | N/A |
| Can the agent show the property? | ✅ Yes — legally permitted | N/A |
| Can the agent collect other offers? | ✅ Yes — must be reported to vendor | N/A |
The vendor cannot do anything with those other offers while you are in cooling off. But the moment you exercise your right to pull out, those offers are ready and waiting.
Some would call that practical. Kylie calls it morally questionable. We think most buyers would agree with Kylie.
What Is Gazumping? And Is It Legal? 😤
Gazumping is when a vendor accepts a higher offer from a new buyer, even after an agreement has been reached with you.
In NSW, once contracts have been exchanged, the vendor cannot gazump you. They are legally bound. A vendor who tries to exchange a second contract while the first is still on foot is in serious legal trouble.
But before exchange? Unfortunately gazumping is not illegal in NSW, just deeply unpleasant.
This is one of the reasons why in NSW we use the cooling off period on exchange deliberately, to get the contract signed and lock in the vendor, while giving the buyer a short window to finalise their due diligence.
💡 Kylie’s Tip: If you intend to proceed, tell the agent clearly and ask them to stop showing the property. They cannot force the vendor to stop marketing, but a clear statement of intention often does the job. The vendor cannot enter into another contract anyway, so continued marketing during cooling off serves little purpose other than keeping pressure on you.
What About the Agent’s Obligations? ⚖️
Under the Property and Stock Agents Act 2002 (NSW), agents have strict obligations. Section 52 makes clear that an agent must not induce any person to enter into a contract through:
Any false, misleading or deceptive statement or representation
Any failure to disclose a material fact they know or reasonably ought to know
The maximum penalty for a breach is 200 penalty units, which is significant.
Practically speaking, if an agent is showing your property during cooling off in a way that suggests to other buyers that it is freely available for purchase, that could raise questions about misleading conduct.
💡 In Plain English: An agent can show the property. But they cannot tell other buyers it is available for purchase if there is a current contract on foot. That crosses a line.
What Should You Do If This Happens to You? ✅
Contact your conveyancer immediately: we can advise on your specific situation and what options you have
Notify the agent in writing: that you intend to proceed with the purchase and request that open homes cease
Do not panic: the vendor cannot exchange with anyone else while your contract is active
Complete your due diligence quickly: get your building and pest reports done, confirm your finance, and if you are satisfied, move past the cooling off period as soon as you can
Once cooling off ends, the vendor is fully locked in and the open homes stop having any practical relevance.
The Bottom Line
The cooling off period in NSW is designed to protect buyers. But it comes with an awkward reality, the vendor is locked in, but agents can keep showing the property and collecting offers in the background.
It is not illegal. But it is not exactly comfortable either.
The best protection? Move through your due diligence efficiently, communicate your intention to proceed clearly, and have a good conveyancer on your side who knows how this works.
At Milana Law, we guide NSW buyers through every stage of the purchase, including the bits that feel uncomfortable. Call us.
Milana Law | NSW Property Law | milanalaw.com.au