Date
The contract date must be the date of the last party to sign. The deposit holder is not a party to the contract.
Agent
An appointment to act as agent is contained in Clause 10. 1, whether or not a separate form has been signed.
Seller
The seller’s name should match with the Title. If the property is currently registered in someones Maiden Name then the Seller must be noted with their Maiden Name. Be careful of older people with deceased partners. The seller may be a person entitled to be registered on the Title but not yet registered by virtue of a prior contract or transfer.
Solicitor / Lawyers
The firm nominated by the seller.
Buyer
Great care should be taken to ensure the appropriate Buyer is named. Changes of identity of the Buyer after contract can create double stamp duty. Parties should be encouraged to take advice from lawyers and/or accountants before nominating the buyer, particularly in commercial purchases and remember to include ALL names including middle names.
Solicitor / Lawyers
The firm nominated by the Buyer.
Property
The full and correct description of the Property to be sold is very important. A minimum description off the rate notice is desirable. If unsure of the area please leave blank.
Fixtures and Chattels
Be sure both Seller and Buyer are fully conversant with the terms of clause 1.1(e) and 1.1(i). Problems occur when minor items are not included or excluded. Vary this clause if the contract is used for a house and land package and the house is still under construction (e.g., as it relates to clothes line, television antenna, etc.) Be sure to list all items included in sale of the property. It is very difficult to prove an agreement to sell any other items if they are not listed. Do not leave any matters to verbal agreement.
Title Encumbrances
Insert here only encumbrances which the buyer will have to take the title “subject to”, e.g. Easements. If the Encumbrance is registered then either the Titles Office dealing number or a brief description of type of Easement is required. If the Encumbrance is not registered then a brief description is required. If there are no Encumbrances do not insert “none known”, instead insert “nil”. It is very important to disclose all Encumbrances. If they are not disclosed and the Buyer subsequently becomes aware of it the Buyer may be able to terminate the Contract.
Tenancies
Insert details of any Tenancy which the buyer is buying “subject to” only – not details of tenancies being terminated.
Deposit Holder
Normally the Seller’s Agent is the deposit holder but the deposit holder can be Lawyer for either party. Lawyers can invest the whole of the deposit if authorised, but an agent can only invest part of the deposit (when authorised). Please note when a deposit is to be invested a tax file number should be obtained.
Price
State full Purchase Price
Deposit
State full deposit and if payable in installments or in a lump sum. State also the time at which the deposit or installments are payable (if not on execution of the contract). The Deposit is not to be any greater then 10% of the Purchase Price. Interest… As specified by the Queensland Law Society.
Finance
The narrower the class of lender the better for the buyer, e.g. ‘Westpac Banking Corporation’ instead of ‘bank’. Allow adequate time for the class of lender specified. An approximate amount is adequate provided it is at least enough to complete the deal. NOTE: If the contract is not subject to finance then this clause should be left blank.
Building Inspection Date
If this is completed then the contract is subject to satisfactory report. Give enough time. If the buyer is not happy they must notify by 5.00pm on nominated date, otherwise they may be in Breach of Contract and the Seller may Terminate.
Settlement Date
Allow enough working days – best stated as ‘days after contract signed’.
Settlement Place
If in doubt – Brisbane.
Does a Registered Covenant Affect the Property’s Use?
Does your buyer know whether the property for sale has hidden restrictions on use or environmental conditions?
As an Agent you may be liable if you do not tell the Buyer of relevant usage restrictions and include the restrictions in Sale Contracts.
With local Councils now registering Covenants over Residential Properties under a law that was introduced in March 2000, Agents and Developers should be careful to look for any conditions imposed by Covenant and fully inform the Buyers.
An Overseas Client?
If you have an overseas investor interested in Australian Real Estate, take note… restrictions apply.
All foreign persons MUST seek prior approval from the Foreign Investment Review Board (FIRB) before investing in any property in Australia.
Unless prior approval has been obtained, when signing a contract to acquire an interest in Australian real estate it must be made conditional upon Foreign Investment Approval being granted.
Special Conditions
Take care when drafting a special condition for the Buyer because you may be left liable to the Buyer if the clause is inadequate and the Buyer suffers damage. Likewise in drawing a clause for a Seller – if it is inadequate and the Seller suffers damage – action for Negligence can be taken against you.
If you would like to send us a copy of any Special Condition for review, contact any of our Conveyancers. Alternatively, if you would like assistance in drafting a Special Condition please contact us.
