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Gold Coast Affinity Conveyancing Special Conditions

 

Affinity Conveyancing  has drafted the following Clauses or special conditions for use when preparing Contracts for Residential Property sales and purchases.  They have been prepared as a guide only and do not represent all situations that may arise.

 The Clauses cover a variety of issues including approvals, access, building works and Council documentation.  Where Clauses in the Standard Terms of Contract are referred to, please be advised that they refer to Contracts for both Houses and Residential Land and for Residential Lots in a Community Titles Scheme.  Unless it is otherwise specified, the Clause Number referred to is the same for both Contracts.

 If you have any questions or require any further information in relation to this document, please do not hesitate to contact our office.

Contents

1.      ACCESS. 4

ACCESS - REPLACING CLAUSE 8.2. 4

ACCESS TO PROPERTY. 4

ALTERATION TO GARAGE ACCESS. 5

EARLY POSSESSION.. 5

2.      APPROVALS. 6

APPROVAL BY BUYER’S SOLICITORS. 6

APPROVAL BY SELLER’S SOLICITORS. 6

SELLER TO PRODUCE COUNCIL APPROVALS. 6

3.      BUILDING CONDITIONS. 7

APPROVED SAFETY SWITCH.. 7

BOUNDARIES AND ENCROACHMENTS. 7

BUILDER SELLER. 7

BUYER BUYS THE PROPERTY “AS IS”. 8

CONTAMINATION.. 8

DIVIDING FENCES. 8

FIXTURES AND FITTINGS SOLD “AS IS”. 8

MAINTENANCE OF APPLIANCES. 9

PROPERTY CLEANING AND RUBBISH REMOVAL. 9

PROPERTY RENOVATIONS. 9

RESPONSIBILITY TO CONNECT TO THE SEWER. 9

SCREEN DOORS. 10

SELLER TO CARRY OUT BUILDING WORKS. 10

SELLER TO GIVE VACANT POSSESSION/TENANCY. 10

SOIL TEST. 11

SWIMMING POOL FENCING.. 11

POOL  SAFETY CERTIFICATE. 11

4.      FINANCE AND COMMISSION.. 12

BALANCE OF AGENT’S COMMISSION TO BE PAID AT SETTLEMENT. 12

BANK GUARANTEE. 12

BUYER PURPORTING TO TERMINATE UNDER FINANCE CONDITION.. 12

FOREIGN INVESMTENT REVIEW BOARD APPROVAL (FIRB). 13

INSTALMENT CONTRACT. 13

INVESTMENT OF DEPOSIT. 14

SIGNING ON LESS THAN 10% DEPOSIT. 14

VALUATION LESS THAN 5% OF PURCHASE PRICE. 15

5.      SALE SUBJECT TO CERTAIN CONDITIONS. 16

BUYER ENTERING INTO CONTRACT FOR SALE OF OWN PROPERTY. 16

BUYER TERMINATING OTHER CONTRACT FOR PURCHASE. 16

CONTEMPORANEOUS SETTLEMENT WITH BUYER’S PROPERTY. 17

SUBJECT TO ANOTHER CONTRACT ON THE SAME PROPERTY NOT PROCEEDING (BACK UP CONTRACT). 17

SUBJECT TO FAMILY COURT CONSENT ORDERS. 18

SUBJECT TO REGISTRATION OF RECORD OF DEATH.. 19

6.      DOCUMENTS. 20

ATTACHMENT OF DOCUMENTS. 20

FACSIMILE COPY OF CONTRACT TO BE BINDING.. 20

CONSENT TO SIGNING- ELECTRONIC. 20

COUNCIL BUILDING APPLICATION.. 20

INTERDEPENDENT CONTRACTS. 21

TITLE DEED.. 21

WITHDRAWAL OF CAVEAT OR WRIT. 21

7.      MISCELLANEOUS. 22

ABORIGINAL CLAIMS. 22

ADJUSTMENTS. 22

CHANGING TIME FOR PASSING OF RISK. 22

DISCLOSURE OF UNAPPROVED WORKS FOR STATUTORY WARRANTY. 23

DUE DILIGENCE. 23

INSURANCE CLAIM... 23

LEASE BY SELLER. 24

LETTING POOL AGREEMENT. 24

SELLER AGREEMENT TO PAY ADVERTISING (IF SALE FALLS OVER). 24

SELLER THE EXECUTOR AND NOT YET THE REGISTERED PROPRIETOR. 25

SOLICITOR’S APPROVAL OF CONTRACTS. 25

SUNSET CLAUSE. 25

UNREGISTERED LOT BEING REGISTERED.. 26

 

 

1.        ACCESS

ACCESS - REPLACING CLAUSE 8.2

 

The parties agree that Clause 8.2 of the Terms of Contract is deleted and replaced with the following condition-

“8.2 Access
After a minimum of 24 hours verbal notice to the Seller, the Buyer and its consultants or agents may enter the Property;

  1. Once to read any meter;

  2. For inspections under Clause 4;

  3. Once to inspect the Property before Settlement;

  4. Once to value the Property; and

  5. As required for the purpose of the Buyer obtaining quotations for renovation works to the Property.”

 

 

ACCESS TO PROPERTY

 

  1. 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 [insert reason for access to Property – for example: why the tiles are cracked in the living areas and why there are no tiles laid on the adjoining laundry floor].

  2. The Buyer agrees to give the Seller at least twenty four (24) hours notice of when access will be required for this inspection.

  3. 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.

 

ALTERATION TO GARAGE ACCESS

 

  1. The parties agree that the Seller will, at the Seller’s expense prior to the Settlement Date, improve the vehicular access to the garage of the Property in a manner wholly satisfactory to the Seller (“the works”).

  2. The parties agree that if the works are not completed by the Settlement Date then the amount of $[insert amount] will be retained from the Settlement Monies and will be deposited into the Trust Account held by the Seller’s Solicitor until the works are completed to the satisfaction of the Seller (“the Retention Amount”).

  3. In the event that the Retention Amount referred to in Special Condition 2 above is required, the Buyer authorises and directs the Seller’s Solicitor to release the Retention Amount to the Seller within two (2) business days after receiving written confirmation of completion of the works from the Seller’s Solicitor.  Receipt of such confirmation shall be sufficient evidence to the Buyer that the works have been completed.

     

EARLY POSSESSION

 

  1. 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.

  2. The Buyer will pay the Seller a licence fee of $[insert amount] per week commencing on [insert date] until Settlement is effected.

  3. Payment of all licence fees will be included as an adjustment on Settlement.

 

 

 

2.        APPROVALS

 

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.

  

SELLER TO PRODUCE COUNCIL APPROVALS

 

The purpose of this Clause is to place an obligation on the Seller to produce all Council approvals and consents with respect to any improvements on the land.

 

  1. Notwithstanding the Standard Conditions hereof, the Seller shall, prior to Settlement, produce to the Buyer all approvals/consents/permissions required by the Local Authority with respect to any improvements on the said land.  Should the Seller fail to produce same, the Buyer shall have the right to terminate this Contract in which event all deposit monies paid hereunder shall be refunded to the Buyer in full.

     

  2. In the event that the Seller is unable to produce such approvals/consents/permissions on or before Settlement, it is agreed between the parties that the Seller may extend the Settlement Date by a period of fourteen (14) days in order to obtain such approvals/consents/permissions.

     

3.        BUILDING CONDITIONS

 

APPROVED SAFETY SWITCH

 

  1. The Seller discloses that an approved safety switch [has/has not] been installed for the general purpose socket outlets in the building,

  2. An approved safety switch has been inserted in the home for all general purpose socket outlets [Yes/No].

 

 BOUNDARIES AND ENCROACHMENTS

 

The Buyer cannot object or make any requisition if:

  1. Walls or fences on the land that should be on the boundaries of the Land are not; and

  2. There are encroachments to or from the Land.

The Buyer cannot terminate this Contract, delay Settlement, deduct or retain any amount from the purchase price or claim compensation or damages in relation to any error in the boundaries of the Land or any encroachments.

 

BUILDER SELLER

 

The Buyer acknowledges that that although the Seller built the improvements on the subject Property the Buyer buys it as a result of his own inspection in the condition and state of repair that it is in and that there is no defects liability period and the Seller will not do any work to the improvements. This provision does not however change any obligations of the Builder Seller under the Queensland Building Services Authority Act Qld 1991 or the Building Act Qld 1975.

OR

Within three months of completion hereof the Buyer shall provide to the Seller a list of any minor defects if any which may have become apparent in the subject Property, which the Seller will then rectify and make good at its expense within one month of receiving such notice, and this Clause shall not merge on completion hereof.

 

BUYER BUYS THE PROPERTY “AS IS”

 

The Buyer in this case accepts the Property “as is” and shall not raise any objections whatsoever in relation to building approvals, structural defects etc.

 

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.

 

CONTAMINATION

 

The Buyer accepts the Property in its present condition and state of repair and latent or patent defects including any contamination by any hazardous substances.  The Buyer will make no objection or claim for compensation nor have any right of rescission or termination arising from the existence of any contaminant in or on the Property.

 

DIVIDING FENCES

 

Neither the Seller nor the registered owner of the land need to contribute to the cost of building any dividing fence between the Land and any adjoining land owned by the registered owner of the Land.  The Buyer waives any right to claim contribution from the Seller or the registered owner of the Land.

 

FIXTURES AND FITTINGS SOLD “AS IS”

 

As the heading suggests, this Clause has the effect that the Buyer takes the fixtures and fittings in a “as is” condition and shall raise no objections to same.

 

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.

MAINTENANCE OF APPLIANCES

 

The Seller agrees, at his/her/their expense, to ensure that the dishwasher, pool filter and all other appliances included in this sale shall on the Settlement Date be in good working order and condition.

  

PROPERTY CLEANING AND RUBBISH REMOVAL

 

  1. The Seller agrees that he/she/they will remove all building materials and other personal items and effects including rubbish from the Property prior to Settlement.

  2. The Seller further agrees that he/she/they will have the lawns and grounds of the Property professionally mowed and trimmed and the house professionally cleaned, including carpet cleaning, prior to Settlement.

 

PROPERTY RENOVATIONS

 

  1. This Contract is subject to the Seller completing the renovation works (“the renovations”) on the Property and obtaining all relevant Local Authority approvals and Builder’s Warranties for the renovations, at the Seller’s cost and to the Buyer’s absolute satisfaction, on or before the Settlement Date.

  2. If the Seller has not complied with Special Condition 1 above to the Buyer’s satisfaction then the Buyer may elect to terminate this Contract by giving notice in writing to the Seller.

  3. If the Buyer elects to terminate this Contract as provided for in Special Condition 2 above then all deposit monies will be immediately refunded to the Buyer.

 

RESPONSIBILITY TO CONNECT TO THE SEWER

 

The parties acknowledge that the sewer is available for connection to the subject Property. Notwithstanding Clause 7.6 of the Terms of Contract and any notice that may have issued in relation to the connection it shall be the responsibility of the [Buyer / Seller] to effect the connection at their expense.

 

SCREEN DOORS

 

The Seller agrees to fit security screens to the sliding doors on the [lower/upper] level/s of the Property and to all other external doors at the Seller’s cost and to the Buyer’s absolute satisfaction, on or before the Settlement date.

 

SELLER TO CARRY OUT BUILDING WORKS

 

This Clause should be used in the circumstances where the Seller agrees to carry out certain works to the Property prior to Settlement.

 

This Seller agrees, at their expense, on or before the Settlement date to carry out the building work as listed below.  Such work shall be carried out in a good and proper tradesmanlike manner, using quality materials.

 

[List works]:

 

SELLER TO GIVE VACANT POSSESSION/TENANCY

 

Vacant Possession at Settlement

  1. The Buyer acknowledges that at the date of this Contract the Property is subject to a tenancy.

  2. Notwithstanding the matter referred to in Special Condition 1 above, the Buyer relies on Clause 5.5 of the Terms of Contract and requires that vacant possession of the Property be given on or before Settlement.

  3. All parties hereto acknowledge that Clause 5.5 of the Terms of Contract and this Clause form an essential term of the Contract and in the event that vacant possession is not given at Settlement then the Buyer may:

    1. Terminate this Contract by written notice to the Seller in which case all deposit monies paid hereunder shall be refunded to the Buyer without deduction forthwith; or

    2. Affirm the Contract, accept the terms of the tenancy and deduct from the purchase price the sum of $[insert amount] as compensation for the Buyer’s inability to take possession of the Property at Settlement.

SOIL TEST

 

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.

  

SWIMMING POOL FENCING

  1. The Seller discloses to the Buyer that there is no Swimming Pool Fence erect on the Property in accordance with Local Authority Regulations and By-Laws.

  2. The Buyer agreed to accept the Swimming Pool in its condition as at the Contract Date.

  3. The Buyer agrees that it will not be entitled to make any claim against the Seller not to have any right of termination of this Contract of Sale in respect of the lack of and/or non-approval of any Swimming Pool Fence.

  4. The parties agree that so far as it may relate to any Swimming Pool Fencing, or lack thereof, Clause 7.6 of the Terms of Contract is deleted.

 

POOL  SAFETY CERTIFICATE

 

  1. The Seller agrees to provide to the Buyer a Pool Safety Certificate within 30 days from the date of contract, at the Seller’s expense.

  2. If the Seller has not complied with Special Condition 3 above, the Buyer may elect to terminate this Contract by giving notice in writing to the Seller.

  3. If the Buyer elects to terminate this Contract as provided for in Special Condition 3 above, then all deposit monies will be immediately refunded to the Buyer in full.

 

4.        FINANCE AND COMMISSION

 

BALANCE OF AGENT’S COMMISSION TO BE PAID AT SETTLEMENT

 

The parties acknowledge that the deposit held by the stakeholder is an amount less than the commission payable to the Seller’s agent and the Seller irrevocably authorises and directs the Buyer and the Buyer’s Solicitors to pay to the Seller’s agent from the balance purchase monies contemporaneously with Settlement the balance of commission owing to the agent, namely the sum of $[insert amount].

 

BANK GUARANTEE

 

  1. This Contract is subject to and conditional upon the Buyer obtaining from its chosen financial institution a Bank Guarantee in the sum of $[insert amount] (“the Bank Guarantee”) and providing the Bank Guarantee to the Seller’s Solicitors by not later than 5:00pm on [insert date] (“the Guarantee Date”).

  2. If the Buyer is unable to satisfy Special Condition 1 above then the Buyer will, by not later than 5:00pm on [insert date], give written notice to the Seller that this Contract of Sale is at an end.

  3. If the Buyer gives notice to the Seller in accordance with Special Condition 2 above then all deposit monies paid will be immediately refunded in full to the Buyer.

 

BUYER PURPORTING TO TERMINATE UNDER FINANCE CONDITION

The parties agree that should standard condition 3 apply to this Contract, the following clause shall also apply:

  1. In order to constitute a valid notice of termination, the notice must include a copy of a letter from the financier stating that the Buyer has been unable to obtain loan approval.

 

FOREIGN INVESMTENT REVIEW BOARD APPROVAL (FIRB)

 

This Clause is to cover the situation where the Buyer requires FIRB approval to acquire the Property.

 

The parties agree that Clause 10.2 of the Terms of Contract does not apply to this Contract and that this Contract is subject to and conditional upon the Buyer obtaining written approval from the Foreign Investment Review Board to its purchase of the Property on conditions satisfactory to it within thirty (30) days from the date of this Contract, failing which this Contract shall be at an end and all deposit monies shall be refunded in full to the Buyer.  The Buyer agrees to make application for such approval as soon as possible and use its best endeavours to obtain such approval.

INSTALMENT CONTRACT

 

  1. The parties agree that this Contract is an instalment Contract and the provisions of sections 71 to 76 of the Property Law Act (Qld) 1974 (as amended) (“the Property Law Act”) shall apply.

  2. The parties agree that the Buyer will pay the Purchase Price to the Seller in the following  instalments –

    1. an initial payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is one (1) calendar month from the Contract Date; and

    2. a further payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is six (6) calendar months from the Contract Date; and

    3. a further payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is twelve (12) calendar months from the Contract Date; and

    4. a further payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is eighteen (18) calendar months from the Contract Date; and

    5. a further payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is twenty-four (24) calendar months from the Contract Date; and

    6. a further payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is thirty (30) calendar months from the Contract Date; and

    7. a final payment of $[insert amount], by bank cheque(s) payable as the Seller shall direct, on the date which is thirty-six (36) calendar months from the Contract Date.

 

  1. If, after payment of one-third of the Purchase Price to the Seller, the Buyer elects to require a conveyance of the Property pursuant to section 75 of the Property Law Act then the Buyer agrees to execute a Mortgage in favour of the Seller in the form attached and referred to as [insert name].

  2. If the Buyer fails to pay an instalment to the Seller as provided for in Special Condition 2 above then the Buyer will be in default under this Contract (“the Buyer’s Default”).

  3. If the Buyer is in default pursuant to Special Condition 3 above then the Seller may elect to terminate this Contract by giving notice in writing to the Buyer or the Buyer’s Solicitor.

  4. If the Seller elects to terminate this Contract pursuant to Special Condition 4 above then all monies paid by the Buyer to the Seller up to the date of the Buyer’s default will be forfeited to the Seller.

 

INVESTMENT OF DEPOSIT

 

The parties agree that the Deposit Holder is authorised in accordance with the terms of Clause 2. of the Terms of Contract to invest the deposit in an interest bearing trust account in the name of the Deposit Holder to pay as soon as is permissible by law or upon the Settlement Date whichever is the later, the said deposit to the Seller and to pay the interest thereon, if any, to the Seller and this Clause shall be sufficient authority to such Deposit Holder.

 

SIGNING ON LESS THAN 10% DEPOSIT

 

Although a full 10% deposit is payable by the Buyer, the Seller has agreed to enter into the Contract on the basis that only part of the deposit is paid at the time of the Buyer signing being $[insert amount]. The balance of the deposit must be paid by the Buyer to the Seller as soon as possible as an earnest that the full price will be paid on completion. The full earnest of 10% of the price will be forfeited in the event that the Buyer fails to complete in accordance with the terms hereof.

 

NB the full 10% deposit is to be inserted on the front page of the Contract.

  

VALUATION LESS THAN 5% OF PURCHASE PRICE

 

1. This Contract is conditional upon the Buyer obtaining, at its own expense, a valuation of the subject property, within 7 days from the date hereof.

 

2. If the valuation of the subject property is 5% less than the purchase price, (i.e. less than $935,750.00), then the Buyer is entitled to terminate this contract in accordance with special condition 3.

 

3. The Buyer must give notice to the Seller that:

 

(a) a satisfactory valuation report under special condition 2 has not been obtained by the due date and the Buyer terminates this Contract; or

 

(b) special condition 1 has been either satisfied or waived by the Buyer.

 

 

5.        SALE SUBJECT TO CERTAIN CONDITIONS

 

BUYER ENTERING INTO CONTRACT FOR SALE OF OWN PROPERTY

 

The purpose of this Clause is where the Buyer has entered into a Contract for the sale of their 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.

 

BUYER TERMINATING OTHER CONTRACT FOR PURCHASE

 

The purpose of this Clause is where the Buyer has entered into a previous contract to purchase property, however, that contract may not proceed and they wish to enter into another contract for to purchase.

 

The Buyers warrant and the Seller/s acknowledge that the Buyers are presently parties to a Contract of Sale for the purchase of property located at [address of previous purchase property].  This Contract herein is subject to the Buyers terminating the contract for the purchase of [address of previous purchase property], by 5:00pm on [date of Special Condition/Settlement] and notifying the sellers herein in writing by 5:00pm [following day].

 

CONTEMPORANEOUS SETTLEMENT WITH BUYER’S PROPERTY

 

The purpose of this Clause is where the Buyer has entered into a Contract for the sale of their own Property and is awaiting completion.

 

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 ANOTHER CONTRACT ON THE SAME PROPERTY NOT PROCEEDING (BACK UP CONTRACT)

 

This Clause is to be used where the Seller already has a Contract on the Property and a back-up Contract is to be signed.

 

The Seller warrants and the Buyer acknowledges that the Property is presently the subject to a Contract of Sale between the Seller and [insert Buyer’s name] as Buyer and that Contract is subject to certain conditions.  This Contract herein is subject to the Buyer in the Contract referred to herein, or the Seller, terminating such Contract by 5:00pm on [insert date that is the last date for special conditions to be met].  The Seller agrees not to grant any extensions of time to the Buyer in the Contract referred to herein.

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

 

This Clause is designed for situations where a Buyer has entered into Consent Orders with his/her spouse and the Contract is subject to those Consent Orders being accepted and sealed by the Court and the terms being fulfilled prior to the Settlement Date.

 

The Buyer warrants that he/she is a party to proceedings in the Family 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:-

  1. The Consent Orders being filed with, accepted and sealed by the Family Court; and.

  2. The terms of the Consent Orders being complied with on or before the Settlement Date.

     

SUBJECT TO FAMILY COURT ORDER

 

This Clause is designed to cover the situation where the Buyer is a party to proceedings in the Family Court and the Contract being subject to the finalisation of those proceedings prior to Settlement.

 

The Buyer warrants that he/she is a party to proceedings in the Family Court between himself/herself and his/her former spouse for Property Settlement.

This Contract is subject to:-

  1. The outcome of those proceedings being to the Buyer’s satisfaction;

  2. The Buyer receiving not less than $[insert amount] cleared funds as his/her entitlement to a Property Settlement not later than [insert date].

  3. The Buyer’s former spouse not lodging an appeal in respect of the Family Court’s decision in the above matter by the Settlement Date.

 

SUBJECT TO REGISTRATION OF RECORD OF DEATH

 

The purpose of this Clause is to cover the situation where one of the joint owners of the Property has died and a Record of Death has been lodged with the Department of Natural Resources but is yet to register.

 

The parties agree that if the Record of Death of [insert name of Deceased] is not registered as at the Settlement Date, Settlement shall be extended until two (2) working days after the Seller’s Solicitor has notified the Buyer’s Solicitor that it has registered.

However, if the Record of Death is not registered, the Buyer shall be entitled to terminate this Contract and in any event all deposit monies shall be refunded in full to the Buyer and neither party shall have any claim thereafter against the other.

The Seller agrees to use their best endeavours to have the Record of Death registered at his/her expense as soon as possible and warrants that all documents have been lodged at the Department of Natural Resources in order to obtain registration.

 

SUBJECT TO REGISTRATION OF PLAN OF SUBDIVISION

This Contract is subject to and conditional upon registration of a Plan of Subdivision in the form similar to but not necessarily identical with the plan contained herein on or before thirty (30) days from the date hereof.  Should the Seller require an extension of the date for such registration to take place, the Buyer will grant such reasonable extensions as requested.

 

Settlement shall take place on the date twenty-one (21) days from the date on which the Seller or their Solicitor advises the Buyer or their Solicitor of such registration.

 

 

 

6.        DOCUMENTS

 

 

ATTACHMENT OF DOCUMENTS

 

Attached hereto are the documents itemised below.  The Buyer shall not make any objection or claim for compensation nor have any right of rescission in relation to any matters disclosed therein.

  1. [List documents]

 

FACSIMILE COPY OF CONTRACT TO BE BINDING

 

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 or email copy or facsimile copy of that Contract.

 

CONSENT TO SIGNING- ELECTRONIC

 

For the purposes of sections 11 and 12 of the Electronic Transactions (Qld) Act 2001, the buyer and seller consent to information being given by electronic communication.

  1. This Contract may be entered into and becomes binding on the parties names in the Contract upon one party signing the Contract that has been signed be the other party (or photocopy or facsimile copy or electronic transmission of the same) and transmitting a facsimile copy or electronic transmission thereof to the other party or to the other parties agent or solicitor.

  2. The parties further agree that facsimile/email or any other form of electronic transmission can be used for the purpose of communication in relation to this Contract.

COUNCIL BUILDING APPLICATION

 

  1. The Buyer consents to the Seller lodging with the Gold Coast City Council (“the Council”) a building application (“the Application”) on terms and conditions satisfactory to the Seller.

  2. Upon completion the Buyer agrees to refund to the Seller all of the costs of and incidental to preparation and lodgement of the Application with the Council to a maximum amount of $[insert amount].

 

INTERDEPENDENT CONTRACTS

 

This Contract is interdependent with a Contract of even date made between the same parties in relation to the whole of the land comprised in title reference Lot [insert lot] on [insert plan]. It is intended that if for any reason one Contract should not proceed to completion then neither will the other. Any breach of either Contract by either party shall constitute a breach by that party of the other Contract. If either party is entitled to rescind or terminate one Contract then they are entitled to rescind or terminate the other Contract. Completion of both Contracts will take place on the same day and all notices given will be for the same time period and expire on the same day.

 

 

TITLE DEED

 

  1. It is expressly agreed between the parties hereto that this Contract is subject to and conditional upon the Seller lodging a Form 19 Application for Title with the Department of Natural Resources requesting a new Title Deed to be issued.

  2. It is further agreed that the Department of Natural Resources may require 21 days after lodgement of the Form 19 Application for Title to issue a new Title Deed to enable Settlement to be effected.

 

WITHDRAWAL OF CAVEAT OR WRIT

If the Seller is Obliged to remove any caveat, writ or warrant of execution which is recorded on the title of the Property or any part of it at settlement, the Buyer must accept a discharge or withdrawal of the caveat, writ or warrant of execution, so far as it relates to the Property, in registrable form, (but the Seller will allow the Buyer an adjustment of the Purchase Price in respect of the registration fees payable on the discharge or withdrawal).

 

  

 

 

7.        MISCELLANEOUS

 

ABORIGINAL CLAIMS

 

In the event that the Property is subject to claim under the Native Title (Queensland) Act 1993 not disclosed herein or prior to completion a claim is made then the Buyer may terminate this Contract by notice to the Seller and obtain a full refund of the deposit paid.

 

ADJUSTMENTS

 

  1. The parties agree that Clause 2.6(3) of the Terms of Contract is deleted and replaced with the following –

    “The Buyer will be responsible for all rates and charges associated with the Property from the date of registration of the Survey Plan”.

  2. The parties agree that Clauses 2.6(4) and (5) of the Terms of Contract are deleted and replaced with the following –

“If land tax is unpaid at the Settlement Date the Buyer will accept from the Seller an undertaking to pay the amount of land tax outstanding to the Office of State Revenue within a reasonable time following Settlement”.

  1. The parties agree that Clause 2.6(6) of the Terms of Contract is deleted and replaced with the following –

    “The Buyer will be responsible for all water charges which may issue for the Property.”

  

CHANGING TIME FOR PASSING OF RISK

 

Notwithstanding the law or any other provision hereof the parties agree that the risk of the Property shall pass to the Buyer on [insert date].

On and from that date the Buyer shall not make any objection or claim for compensation nor have any right of rescission or termination in relation to any loss to the subject Property.

 

DISCLOSURE OF UNAPPROVED WORKS FOR STATUTORY WARRANTY

 

The Seller discloses to the Buyer that the Seller believes that the works have been carried out at the Property without the approval of the responsible Council.  The Buyer acknowledges they are aware of the existence of the works and that the Council may not have approved them.  The Buyer warrants to the Seller that the Buyer would have entered into this Contract even if there is a matter in relation to the works that would justify the making of any upgrading or demolition order in respect of the works by the Council.  The Buyer agrees that they cannot make any objection or claim for compensation nor have any right of rescission or termination by reason only of the facts disclosed in this provision. 

 

The “works” means:

[INSERT WORKS]

 

DUE DILIGENCE

 

This Contract is subject to the Buyer completing a due diligence investigation of the land and being totally satisfied with the results of that investigation on or before [insert number of days] days from the date hereof, failing which the Buyer may terminate this Contract by written notice to the Seller and obtain a refund of the Deposit.

The Buyer may waive the benefit of Clause 3.1 of the Terms of Contract by giving written notice to the Seller on or before 5:00pm on the Due Diligence Date.

If the Buyer is satisfied with its due diligence investigations, the Buyer must give notice in writing to the Seller no later than 5:00pm on the Due Diligence Date.

 

INSURANCE CLAIM

 

  1. The parties acknowledge that there is a pending insurance claim relating to the Property (“the Insurance Claim”) with [insert insurance company] (“the Insurer”).

  2. The Seller acknowledges that the Buyer is entitled to receive the benefit of any monies paid or work done by or on behalf of the Insurer pursuant to the Insurance Claim.

  3. In the event that the Insurer pays the Insurance Claim monies directly to the Seller, the Seller agrees to immediately pay to the Buyer all monies received from the Insurer.

  4. The parties agree that this Special Condition 1 above is an essential term of the Contract and has been inserted for the benefit of the Buyer.

     

LEASE BY SELLER

 

  1. 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]

  1. 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.

  2. The total amount of rental payable for the term of the Lease will be adjusted in the Buyer’s favour at Settlement.

 

 

LETTING POOL AGREEMENT

 

  1. This Contract is subject to and conditional upon the Buyer obtaining a copy of the Letting Pool Agreement and all future listings within 14 days of the date of the Contract.

  2. If the Letting Pool Agreement and listings are not satisfactory to the Buyer, then the Buyer may elect to terminate the Contract.

  3. If the Contract is terminated pursuant to Special Condition 2 above then all deposit monies paid will be immediately refunded in full to the Buyer.

 

SELLER AGREEMENT TO PAY ADVERTISING (IF SALE FALLS OVER)

 

It is hereby agreed by the Sellers that they agree to pay all commissions and advertising fees from the balance sale proceeds at Settlement however should the Contract for any reason not proceed or if the Seller instructs another agent to sell the Property, they hereby confirm that they will attend to any advertising fees owed to the agent.

 

SELLER THE EXECUTOR AND NOT YET THE REGISTERED PROPRIETOR

 

The Seller is the executor of the estate of the late registered proprietor. Completion hereof shall take place on the later of 42 days from the date hereof or 14 days after written notice to the Buyer that the Seller is registered as proprietor. In the event that the Seller has not become the registered proprietor of the Property within four months of the date hereof then either party may rescind this Contract whereupon the deposit will be refunded to the Buyer without deduction.

  

SOLICITOR’S APPROVAL OF CONTRACTS

 

  1. This Contract is subject to and conditional upon on the Buyer’s Solicitor approving the Contract terms within two (2) business days of the Buyer’s Solicitor receiving the signed Contract.

  2. If the Buyer’s Solicitor or the Buyer is not satisfied with the terms of the Contract in all respects, then the Buyer shall be entitled to terminate this Contract by giving notice in writing to the Seller.

  3. If the Buyer terminates this Contract in accordance with Special Condition 2 above then all deposit monies will be refunded in full to the Buyer immediately.

  

SUNSET CLAUSE

 

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.

 Additional:

                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].

UNREGISTERED LOT BEING REGISTERED

 

This contract is conditional upon the registration of Survey Plan [number] and the registration of the Seller under a separate title as the registered owner of the Property. Should the Seller not be the registered owner of the Property within ninety (90) days of the date hereof then either party may terminate this contract.

 

The Settlement Date of this contract is [days] after the Seller informs the Buyer in writing that a separate title has issued for the property.

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