-Special Conditions

We hope that you find these special conditions useful in helping your clients.

Remember that there is no substitute for obtaining legal advice which is specific to your client’s needs.  In that regard these clauses should be used as a guide only.  Contact KRG Conveyancing on 1300 132 088 to obtain pre-contractual advice from our experienced lawyers free of charge.

1. Maintenance of Works in a Waterway Area

1.1 This Contract is a contract to which section 15 of the Gold Coast City Council Local Law 17 (Maintenance of Works in Waterway Areas) applies.

1.2 This following specified prescribed works are completely or partly situated on, or connected to, the property (insert details as relevant eg. revetment wall, training wall, jetty or pontoon).

1.3 Under Local Law 17, a person who is a responsible person for the specified prescribed work is, at that person's cost, required to maintain and keep the specified prescribed work in (i) a safe condition and (ii) good working order, repair and condition, including so that the prescribed work can continue to perform its intended function.

1.4 There [is/is not] (delete one) an outstanding notice issued by Council under Local Law 17 in relation to the specified prescribed works. [The contents of that notice are as follows: insert details]

This clause protects a buyer where they are selling an existing property and are relying on the funds from that sale to complete their purchase contract.

The clause -

1. This contract is subject to and conditional upon the successful settlement of the buyer's existing property situated at (insert property address) on or before (insert number of days) from the contract date.

1.1 Should settlement of the property at (insert property address) not be effected for any reason by the date specified above, then either party may terminate this contract and all deposit monies paid by the buyer will be refunded in full.

Subject to Foreign Investment Review Board approval
This clause makes the contract subject to the buyer obtaining approval from the Foreign Investment Review Board. Changes to the Foreign Acquisitions and Takeovers Act (1975) (Cth) state that a contract must allow at least 40 days from the day the buyer notifies the Treasurer before the contract becomes binding on the buyer.

The clause -

(1) The condition of The Terms of Contract headed “Foreign Investment Review Board” does not apply to this Contract.

(2) It is a condition precedent to this contract that the buyer obtains written approval from the Foreign Investment Review Board to its purchase of the property on conditions satisfactory to it within forty (40) days from the date of this Contract failing which this Contract will be at an end, the deposit refunded to the buyer and neither party will have any claim against the other apart from any rights either of the parties will have against the other as a result of any breach of this Contract.

(3) The buyer must make application for approval as at the date of this contract and use its best endeavours to obtain approval and must advise the seller or the seller’s solicitors in writing no later than three (3) working days from when it or its solicitors receive advice in writing about the fate of its application but in no case later than forty-three (43) days from the date of this Contract."

This clause is useful where a contract is intended to be entered into via facsimile or email. Please note that authorisation under the Electronic Transactions (Queensland) Act 2001 (Qld) is still required.

The clause -

1. This Contract may be entered into by and becomes binding on the parties named in the Contract upon one party signing the Contract that has been signed by the other (or a photocopy, facsimile copy, or a printed electronic copy of that Contract) and transmitting a facsimile copy, or electronic copy of it to the other party or to the other party's agent or solicitor.

This clause may be useful where a seller anticipates that an existing contract of sale they have over their property is likely to terminate. It enables the seller to enter into a second contract while their other contract is still enforceable.

The clause -

1. This contract is subject to and conditional upon the termination of the contract entered into between the seller and (insert other buyer's name) dated (insert date of other contract) "the prior contract" within (insert number of days) days from the date of this contract.

1.1 Should the prior contract not be terminated on or before (insert number of days) days from the date of this contract, this contract will be at an end and all deposit monies will be refunded to the buyer in full.

This clause may help to protect the payment of your commission where the deposit of the contract is less than the amount of your total commission and marketing costs. It directs the buyer to draw a cheque to your agency out of the balance settlement funds.

The clause -

1. In the event that the deposit held by the Deposit Holder is not sufficient to pay the agent its commission, marketing and GST, then the buyer and seller agree that the buyer is hereby irrevocably authorised and directed to pay the balance commission, marketing costs and GST on behalf of the seller to the agent from the balance purchase monies on the Settlement Date. This special condition is expressed to be for the benefit of the agent in accordance with section 55 of the Property Law Act 1974 as amended. The seller by executing this contract (as the agents duly authorised attorney) accepts the benefit of this special condition on behalf of the agent.

Well, they say Dog is man's best friend and you have probably dealt with a buyer who has said "I'm not buying it unless my dog can live with me!" This clause will protect the buyer and enable them to terminate the contact should the body corporate not allow their pet to reside in the lot -

The Clause -

1. This contract is subject to and conditional upon the Body Corporate providing written approval within (insert no of days) from the contract date that the buyer may keep a (insert nature of pet) of a maximum weight of (insert weight) in the property. Should approval not be obtained by (insert no of days) from the contract date the buyer may elect to waive the benefit of this clause or terminate the contract and all deposit monies will be refunded in full. If the buyer has not elected to waive the benefit of this clause or terminate the contract by (insert no of days) from the contract date then the seller may elect to terminate this contract and all deposit monies will be refunded to the buyer in full.

This clause can be used where a seller is not yet the owner of the property and intends to settle a purchase contract they have with the owner of the property, simultaneously with the buyer they have found for it.

1. Clause 7.4(1) of the Terms of Contract will not apply to this contract.

1.1 Clause 5.3(1)(b) of the Terms of Contract will not apply to this Contract and will be replaced with the following:

A Transfer by Third Party (Transfer by Direction), stamped and executed by the current registered owners of the lot (and if required by the Registrar of Titles, also executed by the Seller) in favour of the Buyers capable of immediate registration in the appropriate Government office free from Encumbrances (other than those set out in this Contract) but subject to the conditions of this Contract, and other documents capable of allowing the Buyer to become the registered owner of the lot including an undertaking from the Seller to answer any requisitions and pay for the costs of answering any requisitions that may issue from the Registrar of Titles of the Office of State Revenue in relation to the Transfer by Direction.

This clause is used where the buyer(s) do not yet have a contract for the sale of the property and need a reasonable period to obtain a contract.

The clause -

1. This contract is subject to and conditional upon the buyer(s) obtaining a valid and enforceable contract for the sale of the property listed below within the sale period listed below and such contract becoming unconditional within the unconditional period listed below and with a completion date no longer than the period listed below.

Property:

Sale Period:

Unconditional Period:

Completion Date:

2. The buyer(s) will immediately advise the seller(s) or seller(s) solicitors when a sale contract has been obtained and further advise the date thereof and date by which the contract will become unconditional with respect to finance and building and pest inspections and any other special conditions.

3.If the buyer(s) obtain a sale contract within the sale period then this contract will be conditional upon the successful settlement of that sale contract and the date of completion of this contract shall be contemporaneous with the completion date of that sale contract.

4. If the buyer(s) do not obtain a sale contract within the sale period or do not advise the seller(s) or seller(s) solicitors by 5pm on the final day of the sale period that a sale contract has been obtained then either the buyer(s) or seller(s) may terminate this contract by notice in writing to the other and all deposit monies shall be refunded in full to the buyer(s).

5.The buyer(s) shall use best endeavours to obtain a sale contract during the whole sale period.

This clause allows a seller to continue to market a property after entering into a contract with a buyer which is subject to the buyer(s) being able to obtain a sale contract of another property as provided in the clause above or other long term contract that is not unconditional with regard to special conditions.

The clause -

1. The seller(s) shall be entitled to continue to market this property whilst it is still conditional on finance, building and pest and any special condition and in the event that the seller(s) receive another contract of sale that in the seller(s) opinion is more favourable than this contract then the seller(s) shall be entitled to give notice in writing to the buyer(s) requesting that the buyer(s) make this contract unconditional with regard to finance, building and pest and any special conditions not yet satisfied. If the buyer(s) do not in writing make this contract unconditional with regard to finance, building and pest and any special conditions not yet satisfied within two (2) business days from the giving of the notice in writing then this contract shall be at an end and all deposit monies paid by the buyer(s) shall be refunded in full to the buyer(s).

This clause should be used where a buyer has some issues with the subject property which need further investigation before the buyer can be satisfied to continue with the contract. The period allowed for the due diligence should be set by the nature of the investigations and likely availibility of the information. We have allowed 21 days as a standard period but this may be changed as needed.

The clause -

1. This contract is subject to and conditional upon the buyer(s) carrying out such due diligence inquiries with respect to this property as the buyer(s) shall require within twenty-one (21) days ("the period") from the date hereof. If the buyer(s) are not satisified with the results of those inquiries then the buyer(s) may terminate this contract by notice in writing to the seller(s) or seller(s) solicitors and in that event all deposit monies shall be refunded in full to the buyer(s). If the buyer(s) do not give notice by 5pm on the last day of the period then the seller(s) may terminate this contract by notice in writing to the the buyer(s) or buyer(s) solicitors and in that event all deposit monies shall be refunded in full to the buyer(s).

The Standard Contract approved by the Queensland Law Society and adopted by the REIQ does not provide for the payment of deposit to be accepted by way of Deposit Bond. This clause should be inserted where the buyer indicates that payment by deposit bond is the preferred method.

The clause -

1. The seller(s) agree with the buyer(s) that the deposit or any part of the deposit payable pursuant to this contract may be satisfied by the buyer(s) by providing the original copy of a deposit bond to the stakeholder by the due date for payment of the deposit. Such deposit bond shall be issued by a reputable company carrying on the business as an originator of deposit bonds or guarantees in Australia.

2. The Stakeholder may make demand on the Issuer of the Deposit Bond for payment of the sum guaranteed in any circumstances in which the seller(s) is/are entitled to forfeit the deposit monies under this contract at which time the Stakeholder will deal with the monies received from the Issuer of the Deposit Bond in accordance with the terms of this contract.

3. On the Completion Date the Buyer will pay the purchase price or balance thereof if some cash deposit is held by the stakeholder by way of bank cheque, subject to the adjustment as set out in this contract and return of the original deposit bond to the Buyer.

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