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Real estate contracts special conditions

Think carefully before signing a contract for an established property as there is no requirement for a cooling-off period in WA.

The bottom of the offer and acceptance contract has space for you and the seller to include terms (or special conditions) in the contract. If the seller has included any special conditions on the offer and acceptance contract, make sure you are happy to accept these terms before you sign the contract. 

If you are thinking about including your own special conditions, consider the following tips to minimise confusion and complaints, and protect your interests:

  • Get some legal advice about the wording of special conditions.
  • Ensure the special conditions specify clearly what has to be done, when and by whom.
  • Include the consequences if any special condition is not met.

For example specify the fittings you want to remain in the property, such as curtains, pool equipment and light fittings. You should also consider inserting conditions dealing with termite and building inspections, particularly if you are considering the purchase of an older house.

Remember your terms must also be acceptable to the seller.

The offer and acceptance contract - strata title

The offer and acceptance contract can also be used for buying strata titled properties. Before signing the contract you should receive some forms, which provide information about the complex you are thinking about buying into. You should read and discuss any questions you may have in relation to the forms with the real estate agent or the seller.

Any questions of a legal nature should be discussed with a lawyer.

General conditions

The general conditions booklet outlines common terms in most property transactions. It is easy to overlook this document, but it is an important booklet to read. It outlines matters such as:

  • how much of the rates and taxes will be paid by you and the seller in the first year;
  • what happens when either party does not go through with the contract;
  • what happens if either party delays settlement; and
  • when the buyer can move into the property.

As with any of the other terms, you can seek to change the general conditions, but it is recommended you seek legal advice. Any changes to the general conditions also need to be accepted by the seller.

Contract terms

Remember you can protect your interests by:

  • getting legal advice about the contract terms;
  • crossing out any terms that do not suit you;
  • adding any suitable terms (legal advice is recommended); and
  • having all parties to the contract initial each change, when agreement is reached.

Unfair contract terms

The Australian Consumer Law contains protections in relation to unfair contract terms. Unfair terms in standard form consumer contracts may be declared void by a court. The Australian Competition & Consumer Commission can provide more information about unfair contract terms via their Infocentre 1300 302 502 or visit website.

Case study: Get advice sooner rather than later!

Hannah was putting in an offer to buy a home in Scarborough. One of the special conditions Hannah wanted in the contract was for a building report to be done by a building consultant. Hannah did not want to buy the property if the report found there was a lot of work be done to the house. The special condition in the contract read 'this offer is made, subject to a building inspection report'.

The following are some of the problems with the wording of this condition.

  • The condition does not indicate who will pay for the inspection report.
  • It is not clear who will choose the building consultant.
  • Although Hannah understood she did not want to purchase the property if there were structural problems with the house, the condition says nothing about what happens to the contract if the building report is unfavourable.

A lawyer could have advised Hannah about the wording of her condition to protect her interests. Hannah would definitely need legal advice about how to proceed if the building consultant discovers building defects in the property she was thinking about buying.

 

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