Everyone knows the importance of having a solicitor look over your land sale contract when buying your dream home. However, apart from the standard s32 conditions you or your solicitor should be aware of any special conditions attached to your sale of land contract. While special conditions are quite common and subject to mutual agreement by both purchaser and vendor, the way they are drafted may have severe impact on the execution of the contract especially if not looked at carefully.
What are special conditions?
Special conditions are additional conditions apart from the standard conditions in a Contract for The Sale of Land. They are usually included at the request of the buyer or the seller. When preparing a contract for sale, your solicitor will be able to advise you on what conditions can be included as a special condition. If you are a purchaser, the solicitor can explain any existing special condition in the contract that you should be aware of to protect your interest.
Common Examples of Special Conditions:
- Penalty Interest: Issuing a notice to complete and associated penalties. For example, penalty interest payable by purchase if in default.
- Purchaser Obtaining finance for the purchase: Normally a specific condition that will detail information such as credit provider interest rate and when finance should be finalized. This condition is usually included to ensure that finance is arranged before signing a contract to make the contract more attractive to a vendor.
- Satisfactory Building Inspection
- Amendments to standard clauses
- Release of deposit by the purchaser to the vendor
What to watch out for?
- Onerous Special Conditions
Unfortunately, it is common for contracts for sale of land to be in favor of the Vendors as the Vendor’s solicitors usually prepares them. Foreign buyers in particularly are often subject to onerous obligations or risks on purchases without any corresponding legitimate commercial being served.
Some conditions made are intended to change the allocation of risk and liability between the parties in the standard general conditions that apply in Sale of Land Contracts. Some may also intend to invalidate protection for purchasers provided under the Sale of Land Act.
A solicitor will be able to look over such conditions and determine whether the special conditions are enforceable or if the unfair contracts provisions in the Australian Consumer Law act may help to assist purchasers of lands.
- Ambiguous Special Conditions
Ambiguous special conditions are another problem that may occur. This often results in disputes between parties and may give rise to uncertainty and extra cost.
- Special Conditions for Foreign Buyers
Foreign buyers may enter into contracts of sale without understanding the local laws and requirement that may be particular to them.
For example, many contracts for foreign purchaser include a Foreign Investment Review Board (FIRB) clause that require the purchaser to have already received FIRB approval. A foreign purchaser who signs the contract without obtaining the FIRB approval will then be in breach of contract and may lose the land and their deposit. It is important to have a solicitor who has knowledge of the constantly changing foreign investment laws to look over the contract to avoid such an outcome.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Please contact Verity Law for further advice.