Special conditions

for Queensland residential real estate contracts

The special conditions in this booklet have been drafted by our lawyers. They are generic and may not suit all circumstances. We are happy to prepare specific special conditions to suit the circumstances of each contract.

DUE DILIGENCE

(a) The Seller acknowledges that the Buyer has entered into this Contract without having had the opportunity of making full investigations into the Property.
(b) This Contract is subject to and conditional upon the Buyer conducting due diligence investigations within __ days from the Contract Date (“Due Diligence Date”) and the Buyer being satisfied in all respects with the results of those investigations.
(c) The Buyer may give written notice to the Seller by 5pm on the Due Diligence Date that either:
(i) The Buyer’s due diligence investigations are satisfactory and that the Contract is proceeding; or
(ii) The Buyer’s due diligence investigations are not satisfactory and this Contract is at an end.
(d) If the Contract is terminated pursuant to subclause (c)(ii) above, then the Deposit shall be returned in full to the Buyer.
(e) If the Buyer fails to give written notice to the Seller in accordance with subclause (c) above, then the Seller may terminate this Contract, in which case the Deposit shall be returned in full to the Buyer.
(f) This special condition benefits the Buyer and accordingly the Seller’s right to terminate is subject to the Buyer’s continuing right to waive this special condition.
(g) The Seller shall provide the Buyer with its cooperation in the due diligence investigations and provide all information and documents that the Buyer shall reasonably require for its due diligence within a reasonable time.

GUARANTEE AND INDEMNITY

(a) This special condition applies if the Buyer is a proprietary company or an individual trustee of a trust.
(b) In this special condition, Guarantor and Guarantors means (insert full names of company directors or individual trustees): …………………………………………………………………………
(c) In consideration of the Seller entering into this Contract at the request of the Guarantors, the Guarantors jointly and severally guarantee to the Seller:
(i) The performance and observance by the Buyer of all of its obligations and warranties under this Contract, before, on and after completion of the sale;
(ii) The payment of the Balance Purchase Price and any other monies payable under this Contract by the Buyer to the Seller and to third parties.
(d) This is a continuing guarantee and binds the Guarantors despite:
(iii) The subsequent death, bankruptcy, liquidation (including a provisional liquidation), appointment of a receiver/manager or administrator of any one or more of the Buyer and the Guarantors;
(iv) Any indulgence, waiver or extension of time by the Seller to the Buyer or to the Guarantors; and
(v) Completion of the sale.
(e) In the event of any breach by the Buyer covered by this guarantee, including the payment of the Balance Purchase Price, the Seller may proceed to recover the amount claimed as a debt or as damages from the Guarantors jointly or severally without having first instituted legal proceedings against the Buyer and without first exhausting the Seller’s remedies against the Buyer.
(f) The Guarantors jointly and severally agree to indemnify the Seller against any loss, damage or expense of any nature suffered by it or in respect of any action, demand or proceedings made or taken against it as a result of the failure to comply with or a breach by the Buyer of its obligations or warranties under the Contract.
(g) If for any reason this Contract is not enforceable by the Seller against the Buyer in whole or in part, the Guarantors will indemnify the Seller against all loss, including all money which would have been payable by or recoverable from the Buyer had this Contract been enforceable against the Buyer.

Signed by the Guarantor
…………………………………………………

Signed by the Guarantor
…………………………………………………

EARLY POSSESSION

(a) In this special condition, Early Possession means:
(i) The following date: ………………………….; or
(ii) If the date above is not completed, then the date that the Contract is no longer subject to any conditions benefitting the Buyer (i.e. when the Contract is considered unconditional).
(b) The Buyer and Seller agree that the Buyer will take possession of the Property on the Early Possession Date.
(c) From the Early Possession Date the Buyer accepts the Property in the physical condition it is in at that date and will make no objection or claim in respect of the Property's physical condition.
(d) Upon taking possession, and regardless of any other provisions in this Contract, the Buyer will be taken to have accepted that its searches of the Property are in order and the Buyer agrees to make no claim or objection regarding any matters raised in such searches and waives all of their rights regarding these matters under this Contract.

SELLER TO REMAIN AS TENANT AFTER SETTLEMENT

(a) The Buyer agrees that the Seller may remain in possession of the Property after Settlement until 5pm on ………………………. by which time the Seller must vacate the Property.
(b) The Seller must use the Property reasonably until the Seller vacates the Property and must maintain the Property in substantially the same condition at the Contract Date (fair wear and tear excepted).
(c) The Seller’s possession after Settlement shall be under a licence personal to the Seller and does not:
(i) create a relationship of landlord and tenant; or
(ii) waive the Buyer’s rights under this Contract except to the extent that they are inconsistent with this condition.
(iii) give any right to the Seller to assign such license.
(d) While the Seller is in possession of the Property, the Seller must insure the Property to the Buyer’s satisfaction.
(e) On vacating the Property, the Seller must ensure that all keys in the Seller’s possession and in the Seller’s Agents’ possession are handed to the Buyer.
(f) There shall be no amount payable by the Seller to the Buyer for the Seller’s occupation of the Premises.

PURCHASER PURCHASES THE PROPERTY ‘AS IS, WHERE IS”

Despite any other clauses in this Contract to the contrary, the Buyer purchases the Property and all improvements upon it on an “as is” basis and without limiting the generality of this, will not make any objection to the state of repair of the improvements and any failure to comply with any lawful requirements issued by any Authority either before or after the Contract Date.

WORK TO BE CARRIED OUT BEFORE SETTLEMENT

(a) The parties agree that certain works (“Nominated Works”), as set out below, are to be completed by the Seller prior to Settlement.
(b) The Seller shall complete the Nominated Works in a proper and workmanlike manner, ensuring compliance with the Building Code of Australia.
(c) Where there is material compliance by the Seller with the terms of this special condition, then in the event that this Special Condition is not completely satisfied at Settlement, then the Buyer’s only remedy against the Seller is for compensation, but only if claimed by the Buyer in writing on or before Settlement.
(d) The Buyer may not delay Settlement or withhold any part of the balance Purchase Price because of any compensation claim under this special condition.
(e) The parties must act reasonably in relation to this Special Condition.
(f) Nominated works:
……………………………..
……………………………..

SUBJECT TO SALE OF ANOTHER PROPERTY

(a) In this special condition:
(i) Other Property means the Buyer’s property located at …………………….
(ii) Prior Contract means a contract for the sale of the Other Property between the Buyer (as seller) and a third party buyer;
(iii) Prior Contract Unconditional Date means …………………………
(b) This Contract is conditional upon the Prior Contract becoming unconditional by the Prior Contract Unconditional Date.
(c) The Buyer may give written notice to the Seller by 5pm on the Prior Contract Unconditional Date that either:
(i) The Prior Contract has gone unconditional and that this Contract is proceeding; or
(ii) The Prior Contract has not gone unconditional and this Contract is at an end.
(d) If the Contract is terminated pursuant to subclause (c)(ii) above, then the Deposit shall be returned in full to the Buyer.
(e) If the Buyer fails to give written notice to the Seller in accordance with subclause (c) above, then the Seller may terminate this Contract, in which case the Deposit shall be returned in full to the Buyer.
(f) This special condition benefits the Buyer and accordingly the Seller’s right to terminate is subject to the Buyer’s continuing right to waive this special condition.

CLEANING

The Seller must at its expense before Settlement do the following:
(a) Ensure that all rubbish and debris are removed from the Property and that the improvements on the Property will be transferred to the Buyer on Settlement in a neat, clean and tidy condition; and
(b) Arrange for the carpets to be cleaned by a professional carpet cleaner and deliver to the Buyer at Settlement the receipt for the carpet cleaning.

RIGHT OF SELLER TO MAKE A CONTRACT UNCONDITIONAL IF THEY SECURE A BETTER OFFER (AKA “48 HOUR CLAUSE”)

(a) If the Seller receives a written offer on terms considered by the Seller to be more favourable before this Contract goes unconditional, the Seller may give notice ("Notice”) to the Buyer of such an offer together with a copy of the offer.
(b) The Buyer, upon receipt of the Notice may elect to declare this Contract unconditional by giving notice to such election (“Notice of Election”) to the Seller within two (2) days of the Seller giving the Notice.
(c) Should the Buyer not deliver a Notice of Election in accordance with this special condition then the Seller may by notice to the Buyer terminate this Contract and the Deposit shall be refunded to the Buyer in full.

SALE BY EXECUTOR WHERE DECEASED HAS MADE A WILL

(Notes: To be used where deceased left a will and nominated an executor. Seller’s name on the contract is to be the personal representative (i.e. executor). Allow for at least 30 days for the registration date.)

(a) This Contract is conditional upon the registration at land titles registry of a transmission application, so that the Seller is registered as the personal representative of the registered owner(s), within ……………………. days from the Contract Date (“Registration Date”).
(b) The Seller must notify the Buyer in writing as soon as practicable after the transmission application has registered.
(c) Settlement of this Contract will be 30 days after the Seller notifies the Buyer that the transmission application has registered.
(d) If the transmission application is not registered by the Registration Date, then either party may terminate this Contract and the Deposit will be refunded in full to the Buyer.

PET APPROVAL

(a) This Contract is subject to and conditional upon the Buyer obtaining approval from the Body Corporate to keep their pet in the Property (“Pet Approval”), within ………. days of the date of this Contract (“Pet Approval Date”).
(b) The Buyer may give written notice to the Seller by 5pm on the Pet Approval Date that either:
(i) The Buyer has received Pet Approval and that the Contract is proceeding; or
(ii) The Buyer has not received Pet Approval and this Contract is at an end.
(c) If the Contract is terminated pursuant to subclause (b)(ii) above, then the Deposit shall be returned in full to the Buyer.
(d) If the Buyer fails to give written notice to the Seller in accordance with subclause (b) above, then the Seller may terminate this Contract, in which case the Deposit shall be returned in full to the Buyer.
(e) This special condition benefits the Buyer and accordingly the Seller’s right to terminate is subject to the Buyer’s continuing right to waive this special condition.
(f) The Buyer must act reasonably with respect to this special condition.