When purchasing residential property in Queensland, there is a standard REIQ (Real Estate Institute Queensland) contract used. There is also an option for ‘special conditions’ to be added to that contract.
A standard REIQ contract is usually subject to and conditional upon the standard conditions and the standard Finance and Building and Pest Conditions which were agreed to between the buyers and sellers.
Special Conditions are usually agreed to between the parties prior to signing the contract.
Special conditions in your purchase/sale contract designed to provide certainty and protection
These additional conditions or clauses in the contract are included to provide a party more certainty, protection and peace of mind when entering into a residential property transaction to either purchase or sell a property.
For example, if Sam were to purchase a new home for her family in a residential estate and she currently has an English Bulldog, she would want to make sure that 6 or 12 months down the track she won’t receive a notice from the Body Corporate informing her that she has not had approval for her family pet and will not be allowed to keep it in the estate.
Therefore, the importance of having a Special Condition for approval of pets is fundamental as Sam would probably not have purchased the home in the first place if she knew she wouldn’t be able to keep a dog on the premises.
Special Conditions can range from a usual due diligence clause to ensuring the seller cleans the property prior to settlement and not to mention obtaining body corporate approval for your much-loved pets as the above example shows.
We’ve drafted a variety of special conditions or clauses for you to use when preparing a Contract for Residential sale or purchase.
The example clauses provided below should be used as a guide only and cover a variety of different circumstances which may or may not be applicable to your current circumstance. It is always important to obtain legal advice in relation to your specific needs, particularly if there is something you want included in your contract and it is not listed below.
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In addition to the provisions of Clause 8.2 of the Terms of Contract, the Seller agrees to allow the Buyer, its representatives, servants and agents, to conduct an additional inspection of the Property for the purpose of ascertaining
The Buyer agrees to give the Seller at least twenty-four (24) hours’ notice of when access will be required for this inspection.
Upon receipt of the appropriate notice as provided for in this Special Condition, the Seller will ensure that the Buyer, its representatives, servants and agents, have full and free access to the Property.
The parties agree that the Seller will grant early possession of the Property to the Buyer pursuant to Clause 8.5 [for Houses and Residential Land]/ Clause 8.6 [for Residential Lots in a Community Titles Scheme] of the Terms of Contract.
The Buyer will pay the Seller a license fee of $[insert amount] per week commencing on [insert date] until Settlement is effected.
Payment of all license fees will be included as an adjustment on Settlement.
Approval by Buyer’s Solicitors
This Contract is subject to the approval of the terms and conditions by the Buyer’s Solicitors within two (2) business days from the date of this Contract. The Buyer shall advise the Seller in writing within two (2) business days from the date of this Contract whether the Contract is approved or otherwise.
Approval by Seller’s Solicitors
This Contract is subject to the approval of the terms and conditions by the Seller’s Solicitors within two (2) business days from the date of this Contract. The Seller shall advise the Buyer in writing within two (2) business days from the date of this Contract whether the Contract is approved or otherwise.
Body Corporate Approval of Pets
This contract is subject to and conditional upon the Seller obtaining written permission from the Body Corporate at or prior to settlement for [insert specific pet details] to reside with the owner of the property upon reasonable terms as determined by the Body Corporate.
Buyer buys the Property “As Is”
The parties agree that Clause 7.6 of the Terms of Contract shall not apply regardless of any other provision in this agreement, the parties agree that the Buyer shall acquire the Property “as is” and in its physical condition at the date of this Contract, and the Buyer agrees to make no claim or objections for any nature whatsoever in respect of the Property’s physical condition.
Fixtures and Fittings Sold “As Is”
The fixtures, fittings, appliances and chattels included in this sale are sold “as is” with all faults and defects that exist as at the date of this Contract and no warranty is given as to their condition nor their fitness or suitability. Any implied conditions or warranties in this regard are expressly excluded from this Contract.
This Contract is subject to the Buyer carrying out a soil test in respect of the Property within [insert number of days] days of the date of this Contract, and the results of such test being to the Buyer’s sole satisfaction. The Seller agrees to allow the Buyer access to the Property for such purposes of carrying out such soil test. Should such soil test not meet with the satisfaction of the Buyer, they shall advise the Seller accordingly and this Contract shall be at an end and all monies paid by the Buyer shall be refunded to the Buyer in full.
Buyer Entering into Contract for Sale of Own Property
This contract is conditional upon the completion of the Contract of Sale dated [date of contract] with respect to the sale of the Buyer’s property situated at [address of property] by a date no later than the [date].
If the Buyers contract of sale regarding [address of property for sale] is not completed by [date] then the Buyers may, by written notice to the Seller, terminate this Contract in which event the Deposit shall be refunded to the Buyer in full.
Contemporaneous Settlement with Buyer’s Property
This Contract is subject to and conditional upon the successful completion of the sale of the Buyer’s Property situated at [insert address of Property] by [insert date].
In the event that such Contract is not completed by such date, then this Contract shall be at an end and all deposit monies shall be refunded in full to the Buyer.
It is hereby acknowledged that Settlement of this Contract shall take place contemporaneously with the Settlement of the sale of the Buyer’s Property at [insert address of Property].
Subject to Family Court Consent Orders
The Buyer warrants that he/she is a party to proceedings in the [Family Court/Federal Circuit Court] between himself/herself and his/her former spouse for Property Settlement and further that the Buyer and his/her spouse have reached agreement as to Property Settlement and that Consent Orders have been executed by both the Buyer and his/her former spouse.
This Contract is subject to:-
The Consent Orders being filed with, accepted and sealed by the [Family Court/Federal Circuit Court]; and.
The terms of the Consent Orders being complied with on or before the Settlement Date.
This contract is subject to and conditional upon the Buyer completing within [insert number of days] from the contract date a due diligence investigation of the Property. In the event that the results of the due diligence investigation are not satisfactory to the Buyer in the Buyer's absolute discretion, the Buyer may terminate this contract by notice, given in accordance with the terms of Contract, to the Seller and this Contract shall be at an end and the Deposit must be promptly refunded to the Buyer.
The Seller will allow the Buyer and their consultants, agents and invitees access to the Property for the purpose of conducting the due diligence investigation.
The Seller acknowledges that this Special Condition is for the benefit of the Buyer and may only be waived or exercised by the Buyer.
All parties hereto acknowledge that should the Seller receives another offer to purchase then, upon receipt of notice in writing from them or their Solicitors to the Buyer or their Solicitors, the Buyer shall have three (3) working days to make this Contract unconditional. Should the Buyer not be able to make this Contract unconditional within the specified time, they shall advise the Seller’s Solicitors by notice in writing by 5:00pm on the third working day, and the Contract shall be at an end and all deposit monies paid by the Buyer shall be refunded to them.
The parties acknowledge and agree that the benefit contained in the provisions of this Clause will terminate upon on the occurrence of the Buyers entering into a Contract for the sale of their Property situated at and known as [insert address of Property].
Repairs Prior To Settlement
This contract is subject to and conditional on the seller repairing at his/her/their expense, the [insert as applicable] in the property to full and complete working order prior to settlement. In the event that the [insert] is not repaired to the full satisfaction of the Buyer prior to settlement, then the Buyer shall be able to deduct a sum of money from the Purchase Price for the repairs to the [insert]. The sum to be deducted from the Purchase Price shall be calculated by the Buyer obtaining a quote from a qualified and/or licensed repairer of their choice.
This Contract is subject to the Foreign Investment Review Board (hereinafter called "F.I.R.B.") granting approval to this transaction.
The Buyer shall forthwith apply to the F.I.R.B. for approval and use his best endeavours to obtain such approval.
In the event that such approval is not granted before the insert date then this Contract shall be at an end and all moneys paid by the Buyer shall be refunded in full.
The Buyer agrees that immediately upon his becoming aware of the result of his application to the F.I.R.B. he shall advise the Seller of such result.
This contract is subject to and conditional upon the Buyer being satisfied in the Buyer's absolute discretion with the results of searches to be conducted by the Buyer on the Property prior to settlement. In the event that the Buyer is not satisfied with the results of the searches, the Buyer may terminate this contract by notice, given in accordance with the Terms of Contract, to the Seller and this contract shall be at an end and the Deposit must be promptly refunded to the Buyer without deduction.
The Seller acknowledges that this special condition is for the benefit of the Buyer and may only be waived or exercised by the Buyer.
Vacant Possession - Seller to End Existing Lease Early
As disclosed in the relevant section of the Reference Schedule of this contract, there are tenants currently in the property with a lease that continues beyond the Settlement Date, however the Buyer has entered this contract requiring vacant possession upon settlement.
As the existing tenancy continues beyond the Settlement Date, the Seller has agreed to use their best endeavours to bring the tenancy to an end before settlement.
The Seller has contemplated that there may be costs to them in attempting to bring the tenancy to an end before settlement and accepts these costs as their own to bear.
If the Seller can not provide the buyer with vacant possession upon settlement despite using their best endeavours and being prepared to incur reasonable costs in doing so, then the Seller may elect to either:
terminate this Contract by giving the Buyer notice in accordance with the terms of the contract and must refund all deposits paid to the Buyer. Neither party will have further rights against the other;
proceed with this Contract in which case there must be a reduction in the settlement figures in the amount of [INSERT $ AMOUNT] in the Buyer’s favour. This will then be the only remedy that the Buyer has in relation to any loss or damage they suffer as a result of not being provided with vacant possession.
The rights of the seller in sub-clause 4 above, are subject to the Buyer having the option (if the Seller can not provide the buyer with vacant possession upon settlement), to terminate the contract by giving the Seller notice in accordance with the terms of the contract. If the Buyer terminates the contract on this basis, the deposit must be refunded to the Buyer and neither party will have further rights against the other.
Lease by Seller
This Contract is subject to the Seller entering into a Residential Tenancy Agreement (“the Lease”) with the Buyer on the following conditions –
Term: commencing on the Settlement Date and terminating on [insert date].
Bond: $[insert amount]
Weekly Rental: $[insert amount]
The Buyer will submit the Lease to the Seller at least [insert days] days prior to Settlement and the Seller will return the signed Lease to the Buyer at least [insert days] days prior to Settlement.
The total amount of rental payable for the term of the Lease will be adjusted in the Buyer’s favour at Settlement.
Seller to Clean prior to Settlement
The parties hereto agree that on Settlement the Seller shall produce an exit clean report in form 14a (Residential Tenancies and Rooming Accommodation Act 2008, Section 66) prepared by the Agent evidencing that the property has been cleaned to “bond clean standard”.
The term “bond clean standard” shall mean an standard of cleanliness and presentation which in the opinion of the agent presents the property fit for human habitation. In the event that the Seller does not produce such a report, the Buyer shall be entitled to terminate the Contract.
The Seller agrees at his/her expense to arrange for the carpets in the unit/house to be cleaned before settlement by a professional carpet cleaner. A copy of the paid invoice/receipt is to be provided to the Buyer if requested.
Early Possession/Access (Storage)
The Buyer has requested and the Seller has agreed to allow the Buyer and their reasonably necessary invitees access to the property prior to settlement [on DATE] to store goods [at the property / inside the dwelling / shed only / garage only / etc]. This access is granted on the same terms as those in Clause 8.5 of this REIQ Contract with the following additions and modifications:
the access granted specifically excludes the Buyer or their invitees from staying in the property outside the hours of [INSERT TIME (eg 8:00AM to 6:00PM)];
all goods stored by the Buyer at the property are stored at the sole risk of the Buyer;
ownership of the goods remains at all times with the Buyer;
if settlement does not occur the Seller will allow the Buyer [7/14] days from the termination of the contract in which remove the items from the property and will provide the Buyer and their reasonably necessary invitees further access to the property upon reasonable notice for the purpose of removing these items from the property.
the Buyer will provide a copy of the relevant Certificate of Currency for the insurance to the Seller prior to possession being permitted;
the Buyer indemnifies the Seller against any and all loss, damage, action, claims, suits or demands arising from or through or in connection with the access to the property and in particular that which might arise as a result of the injury or death to any person occurring during the access.
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.