Under s 66R(2)(a) of the Conveyancing Act 1919 (NSW), before a residential property is advertised, a contract of sale must be prepared by the vendor’s solicitor. The most commonly used contract for sale of land in New South Wales is the “Contract for the sale and purchase of land 2022 edition” published by The Law Society of New South Wales (Law Society) and the Real Estate Institute of New South Wales (commonly referred to as the “standard contract”). The standard contract contains standard terms and conditions, and it is likely that the contract will contain additional clauses, known as ‘’special conditions’’.
What are “special conditions”
Special conditions are used to address specific issues with the property for sale, not covered by the standard contract or to override standard conditions.
Examples of “special conditions”
Quite often special conditions are inserted by a vendor’s solicitor or conveyancer for the benefit of the vendor and may restrict purchaser’s rights to terminate the contract for various reasons. Common examples of those special conditions are:
- Settlement date can be set to take place by a certain time after occurrence of an event such as the Executor or Administrator is the registered owner when purchasing a property subject to Probate or Letter of Administration.
- Issuing a notice to complete and the associated penalties such as penalty interest payable by the purchaser if in default and additional legal fees, what is a reasonable time for completion if there has been a default.
- Current condition of the property – usually that the property is being sold on “as is, where is” basis and the purchaser has made and relied only on their own enquiries;
- The purchaser was only introduced to the property by the real estate agent named on the Contract for Sale which is aimed at protecting the vendor from being liable to pay double commission.
- Release of the deposit by the purchaser to the vendor to fund the vendor’s subsequent deposit or transfer duty on a purchase of another property; and
Similarly, a purchaser’s solicitor can require a special condition be included in the contract to provide the purchaser with additional protection or rights in relation to adverse search results. For example, the contract could be made subject to finance, DA approval, satisfactory searches, work to be completed or can oblige the vendor to compensate the purchaser as a result of adverse search results. If there is a special condition in the contract a purchaser may be able to delay or refuse to settle if the issues are not rectified.
Before entering into any purchase, it is essential that you have your contract reviewed in order to ensure you understand all terms and conditions and/or have the chance to include any special conditions you may need to protect your interests. Where the contract has already been signed there is generally no opportunity to add special conditions. In some limited circumstances, it may be possible to negotiate amendments to the terms of the contract if there is a cooling off period or while the contract is still conditional. If you need help with conveyancing matter, contact our Property Team on 8776 3155.
