The Importance and Effects of Special Conditions in a Contract of Sale
Tuesday, August 28, 2018
The unique circumstances of each a sale of land means that often the buyer and purchaser of land will require the general terms of the contract to be altered. Special conditions can be inserted to affect any aspect of the sale. It is therefore important to ensure that all special conditions are drafted carefully so that they accurately reflect the parties’ intentions. Typically, a special condition will be implemented for the benefit of one party in particular so it is essential that the other parties, including real estate agents, are diligent in checking the effect of any special conditions.
Special conditions are often inserted where settlement is conditional upon a particular event or outcome. One common example of this is where settlement is to be conditional upon the simultaneous settlement of another property. This typically occurs where the purchaser is selling their current property, and therefore cannot afford to purchase the property unless they are assured that their current property will be sold.
Another circumstance where special conditions may be inserted is where the sale is conditional upon a satisfactory search or inspection of the property. Common searches include building reports, pest inspections and pool safety checks. The parties often prefer to include a special condition outlining the particular consequences of a failure to obtain the satisfactory reports (usually, an unsatisfactory report will give one party the right to terminate the contract).
For the Sellers’ Benefit
An example of a special condition for the sellers’ benefit is a clause which allows the seller to terminate the contract in the event they receive a more advantageous offer from another prospective purchaser after the contract is signed but prior to settlement. This type of clause will typically allow the seller to inform the buyer of the more advantageous offer and give the buyer 48 hours to match the terms of that offer. If the buyer fails to do so then the seller may terminate the contract.
For the Buyers’ Benefit
The buyer may also insist on special conditions in order to protect their own interests. For example, most contracts place the property at the buyer’s risk from the day the contract is signed. This means that if any damage occurs to the property prior to settlement, the costs will fall on the buyer. Buyers can reverse this risk by inserting a special condition to that effect.
Follow this link to access some examples of our special residential contract conditions you may need to include in your contract.
Bennett Carroll Solicitors provides this material as a guide only.
Individual circumstances may differ and we recommend that you call us for FREE LEGAL ADVICE relating to the circumstances of each individual case.
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- Contract where deposit is less than Commission
- Subject to Simultaneous Settlement (Where contract already entered into)
- Subject to Buyer’s Sale Contract becoming Unconditional (Where contract already entered into)
- Subject to Simultaneous Settlement (Where contract not yet entered into)
- Subject to Buyer’s Sale Contract becoming Unconditional (Where contract not yet entered into)
- Subject to Payment of Deposit
- Subject to Payment of Bank Guarantee/Deposit Bond
- Investment of Deposit
- Early Release of Deposit
- Subject to Termination of Pre Existing Contract
- Subject to Registration of Title in Seller’s Name
- Subject to Engineering/Pest Controllers Report
- Subject to FIRB Approval
- Subject to Body Corporate Record Search
- Subject to Body Corporate Information Being Supplied (used when immediate access to information is not possible)
- Pool Fencing (Buyers Obligation)
- Pool Fencing (Seller’s Obligation)
- Documents sent via fax/email sufficient
- Subject to Disclosure of all Unapproved Structures on Property
- Seller is Agent of Property
- Subject to Builder Completing Dwelling
- Early Possession
- Buyer Renting Property to Seller Post Settlement
- Compliance with Requisition
- Subdivision of Land Where Plan Sealed by Council
- Sunset/ 48 Hour/ Better Offer
- Building Covenants
- Property at Seller’s Risk Until Settlement
- Subject to Deceased Transmission