Attwood Marshall Lawyers Property & Commercial Law Graduate, Mieke Elzer identifies the 10 most important special conditions to consider putting in your Contract of Sale if you are buying or selling property during the festive season.
Introduction
The importance of special conditions in a Contract of Sale when buying or selling property should never be underestimated. Leaving one out, or miswording a condition, could end up costing you a fortune to rectify, or may force you into a situation where you must proceed with a purchase that is unsuitable or risky.
Top 10 special conditions to protect your best interests
The following special conditions should be considered if you are buying or selling property this Christmas.
1. Subject to Pest & Building Inspection
It is highly advisable to obtain pest and building reports when purchasing a property. It has been reported that 1 in every 5 houses in Australia have a termite infestation. Termites can cause extensive damage costing tens of thousands of dollars to fix, which in most instances are not covered by insurance companies. As for the building inspection, there are so many minor and major issues that can be flagged in this type of report, however the most important ones to watch out for are structural issues, the presence of asbestos, movement or cracks, surrounding trees and gardens that may have potential safety hazards, electrical defects, and plumbing concerns.
Inclusion of a condition that makes the Contract conditional upon you receiving satisfactory pest and building reports means that you can go ahead and exchange the Contract with the peace of mind that the property cannot be sold to anyone else, and you will have a right to rescind if the pest and/or building reports come back unsatisfactory.
A couple of tips to bear in mind is that a report is only as good as the person who prepared it, so make sure you engage reputable pest and building inspectors. Finally, buyers generally have to be reasonable when determining whether a report is unsatisfactory, and this will depend on things such as the severity of the defect in relation to the age of the property and the price that has been agreed.
2. Subject to Finance
Although a ‘Subject to Finance’ clause is a relatively standard condition included in most Contract of Sale agreements; some buyers choose to omit this clause to make their offer more appealing to the seller. With rising interest rates and lenders tightening their belts when it comes to home loan servicing, never assume your finance will be granted, even if you have received pre-approval!
Hot tip: write to your lender or broker and ask them to confirm that the timeframes for finance and settlement are achievable before you exchange a Contract with dates for when finance and settlement will be due. Setting up manageable expectations with your seller and agent will tend to lead to better outcomes for all involved.
3. Subject to Satisfactory Searches
In Queensland, the buyer is required to conduct their own searches to ensure they are satisfied with the property before the cooling off period expires or due dates are achieved.
New South Wales is slightly different, where certain council documents and title documents must be provided to the buyer prior to them signing the Contract. The following searches and documents are considered ‘prescribed documents’ that will automatically be attached to NSW Contracts:
- Zoning Certificate
- Sewerage Diagram
- Title Certificate
- Plan of the land
- Easements and encumbrances
- Strata documents including by-laws, lot certificate, strata development contract or statement, strata management statement, documents relating to the community, building management statements.
- Smoke alarm and swimming pool notices.
When buying in Queensland, the following searches may be necessary to ensure there are no nasty surprises waiting for you in the future.
- Title Search – to identify the registered owner of the property and dealings which have been registered on the title, including any caveats that have been lodged and may need to be removed prior to settlement.
- Registered Plan – to show the exact boundary of the property and where it is located in the street.
- Easements and Encumbrances – finding out if easements and encumbrances may limit you from doing something to your land.
- Land Tax Search – to reveal any outstanding taxes payable which the buyer may inherit if the seller does not pay the overdue amount prior to settlement.
- Transport and Main Roads Property Search – it is important to identify if Council have any plans in place to build infrastructure near the property, including roads, ports, or railway lines.
- Contaminated Land Register – understanding if the property you are seeking to purchase is listed on the Environment Management Register or Contaminated Land Register is imperative. If the property is listed on the register, it means there is proven contaminated land which causes or may cause serious environmental harm.
- Pool Safety Register – if the property has a pool, it is important to identify if the pool has a current pool safety certificate issued.
- Flood Search – Queensland and Northern New South Wales are prone to serious flooding events. There have been hundreds of thousands of homes impacted by floods over the past few years, making it more important than ever before to complete a flood search in order to identify if the property you are purchasing has been involved in a flood, and what the level of the last flood reached.
These are just several of the standard searches you can include in your Contract, however there are many more to cover your unique situation and concerns and ensure you are protected. An experienced property lawyer will be able to help you identify which searches you should include in your Contract.
4. Subject to Prior Sale
For anyone selling and buying simultaneously this clause is essential. Without a ‘Subject to Prior Sale’ condition, the buyer may find themselves in breach of their purchase Contract should something go wrong with their sale. This is particularly important when purchasing property in Queensland where time is of the essence in the Contract.
5. Subject to Body Corporate Inspection Report
Many people are choosing to purchase properties in apartments or community title schemes, whether they are downsizing, or looking to take advantage of a low-maintenance lifestyle with access to all the amenities they desire. A ‘Body Corporate Inspection Report’ is prepared by a professional who conducts an inspection of the body corporate’s records. This will indicate the financial position of the body corporate, voting rights, planned or previous works, levies, sinking fund forecast, pet and other policies, disputes, compliance with legislation, minutes from meetings, and more. Importantly it will indicate whether any special contributions have been raised or are likely to be raised in the future. Special contributions are financial contributions by owners to cover upcoming expenses. These can be quite costly, for example if it is forecasted that a replacement of all the rooves in the strata complex is required. Getting a full picture of the community you are prepared to move into is important when deciding to buy a strata or community-titled property.
6. Payment of Deposit
The deposit may only be a small percentage of the property’s purchase price; however, it is still a significant amount of money if the buyer finds themselves in breach of the Contract, they will forfeit their deposit. It is important to identify how much deposit is required, when it is payable, and under what terms the deposit may not be returned if the Contract falls through.
7. Early Possession
Sometimes a seller will agree to allow the buyer to move into the property early. Depending on how early the buyer is moving in, the Contract may include a condition that the parties enter into a licence agreement that sets out the rights and responsibilities of each party, appropriate dates, licence fees, and also what happens if the property doesn’t settle on time, or at all. If the buyer is taking early possession for a short period only, the details are sometimes dealt with by way of a special condition. It is important to note that moving into the property under a licence agreement or a special condition does not create the legal rights for the buyer that a residential tenancy agreement does. Should the buyer fail to complete the Contract, they must vacate the property.
8. Pool Safety
It is mandatory for Seller’s to provide either a valid Pool Compliance Certificate or a valid Certificate of Non-Compliance when selling a property that contains a swimming pool. If a certificate is not available at the time of exchange a special condition needs to be inserted which specifies whether a Compliance or Non-Compliance Certificate is going to be provided. Where a buyer agrees to purchaser a property with a pool that does not comply with the current legislative standards, the buyer should be aware that they will have 3 months to obtain a pool compliance certificate once becoming the new owner. Due diligence should be conducted to ensure that the cost of any works required Is not prohibitive. In Queensland, if the property has a pool, but there is no pool safety certificate provided with the Contract, there should be a clause allowing time for the buyer to conduct an inspection of the pool.
9. Subject to FIRB Approval (applicable to foreign investors)
Foreign Investment Review Board (FIRB) Approval is a requirement for foreign investors, or temporary residents, who wish to purchase residential land in Australia. By including a ‘Subject to FIRB Approval’ condition in a Contract, it can allow the buyer to terminate the Contract if they do not receive approval, or a seller can terminate if notice is not given of the approval within an appropriate timeframe outlined in the Contract.
10. Sunset Clause
Sunset clauses are most commonly used in Contracts for off-the-plan property purchases; however, they may also be used in Contracts where a buyer makes the property Contract conditional on the sale of their existing property. In this case, a sunset clause can provide a buyer the opportunity to pull out of a Contract if something falls through with the sale of their existing property within the timeframe outlined in the sunset clause. This may also be beneficial to the seller, providing them an opportunity to put their property back on the market if the buyer is delaying the process.
Attwood Marshall Lawyers – helping you protect your best interests when buying or selling real estate
We have been proudly helping people achieve their real estate goals for over 75 years. Our property lawyers are experienced in both Queensland and New South Wales jurisdictions, which is helpful especially for those that are selling in one state and purchasing in another.
Attwood Marshall Lawyers offer free pre-signing advice on all Queensland Contracts to help you understand if additional conditions may be beneficial to include in the Contract before you sign anything.
Summer is one of the most popular times for people to buy and sell property, and for this reason our property lawyers remain on call throughout the festive season to help people with all their conveyancing needs.
Our team are available for appointments at our offices located in Coolangatta, Robina Town Centre, Brisbane, Kingscliff, Sydney and Melbourne. If you require our assistance outside normal business hours, our Robina Town Centre office is open Thursday nights until 9pm and Saturday mornings from 9am until 12noon.
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Read more:
Common mistakes made by property buyers and handy tips for avoiding them
Homes flooded in February hit the market: but do agents need to disclose the flood risk of a property to buyers?
