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These Special Conditions are designed primarily for sale and purchase of houses and residential land in Australia (except for new residential properties) that are not currently subject to any subdivision, planning permits or development works.
✅ Strata and Community Title properties are covered.
These Special Conditions are generic in nature as they do not reference contract clauses.
As such, you can use them in any Australian jurisdiction, however, we recommended that in the following jurisdictions you should use our specifically tailored documents:
➲ New South Wales - Special Conditions (NSW);
➲ Queensland - Special Conditions (Qld);
➲ Victoria - Special Conditions (Vic); and
➲ Western Australia - Special Conditions (WA).
The Special Conditions deal with many important matters including:
⚖️ Treatment of the Deposit;
⚖️ Claims by the Buyer;
⚖️ Indemnities;
⚖️ Confidentiality;
⚖️ Land Tax adjustments;
⚖️ Discount for Early Settlement;
⚖️ Attaching Various Certificates and Surveys;
⚖️ Vacant Possession/Tenancy/Seller Retains Possession (via Lease);
⚖️ License Fee for Early Possession by the Buyer;
⚖️ Arrangement for Early Access by the Buyer to allow for Storage;
⚖️ Pool, Solar Panels, etc.
Making the sale conditional upon:
✅ The Buyer's Due Diligence;
✅ The Buyer completing a previous Sale;
✅ The Buyer receiving Body Corporate approval to keep pets;
✅ The Seller completing a previous Sale;
✅ FIRB Approval;
✅ Lease by the Buyer to the Vendor;
✅ "Sunset" Clause (i.e., 48-hour clause to allow the Seller to continue advertising the Property - see below);
✅ Finance;
✅ Approval by either or both parties' Solicitor/s; +/or
✅ The condition of the Property + Fixtures/Fittings - Structural + Pest Inspections, etc. or purchase "as-is" (normally the case for auction sales).
It also allows for the addition of any bespoke Special Conditions.
Sunset Clauses are generally used in "Off-the-Plan" sales and provide that if the development is not completed by the Sunset Date, either party can respond the Contract. These means that the Vendor can return the deposit to the Purchaser and sell the property to another Purchaser +/or the Purchaser can walk away from the purchase and request their deposit to be refunded.
In these Special Conditions, the use of a "Sunset Clause" is slightly different and allows the vendor to keep advertising the property even after the contract is signed, where the contract is conditional.
If the vendor receives a better offer, the purchaser is given an opportunity to waive any outstanding conditions and proceed with the purchase (at either the original price, or an increased purchase price depending on how the Sunset clause is structured).
If the purchaser does notes not waive all outstanding conditions, then the vendor can sell to the third party.
Please try this solution and provide us with your feedback so we can expand its capabilities to generate Special Conditions for:
✅ "Off-the-Plan" Sales; +/or
✅ Commercial Property.
The Special Conditions will be created as an Annexure to the Contract.
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The ZipID VOI process will provide the PEXA Confirmation of Authority to Act for you to sign at the same time as your VOI.
Our legal team can also assist with the preparation of the PEXA Confirmation of Authority to Act and any queries you have prior to you signing it.
A buyer of NSW property will generally be considered a foreign person and liable to pay NSW purchaser surcharge duty [8% of the purchase price] unless:
✅ The buyer is an Australian citizen; or
✅ Has lived in Australia for more than 200 days in the 12 months before the purchase date, [+] is either:
⚖️ A New Zealand citizen, who holds a subclass 444 visa; or
⚖️ A permanent resident of Australia.
As well as paying Surcharge Purchaser Duty, foreign persons who own residential land must also pay Surcharge Land Tax.
If the situation is complex, we recommend the purchaser obtain specialist tax advice.
^ Source: LawCover Short Minutes: Surcharge Purchaser Duty
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
All conveyancing transactions of Australian property with a market value of $750,000 or more require the vendor to make an ATO Clearance Certificate Application and for the purchaser to withhold 12.5% of the purchase price at Settlement and pay the funds to the ATO, if no ATO Clearance Certificate is furnished on or before Settlement.
An ATO Clearance Certificate or Certificate of Clearance issued by the ATO is required where the capital gains tax (CGT) asset to which the conveyancing relates is taxable Australian real property or an indirect Australian real property company title interest.
Failure to make an ATO Clearance Certificate Application and obtain an ATO Clearance Certificate will result in the vendor being treated as a relevant foreign resident for the purposes of the relevant tax law.
This rule applies even if the vendor is actually an Australian resident for other income tax purposes.
The ATO may issue an ATO Clearance Certificate (also called Certificate of Clearance) stating that the vendor of taxable Australian real property or an indirect Australian real property company title interest is not a relevant foreign resident.
The ATO Clearance Certificate will specify that withholding is not required on the acquisition of the Australian property.
An ATO Clearance Certificate is valid for 12 months from the date issued.
Therefore, the vendor does not have to reapply for an ATO Clearance Certificate each time they dispose of a property, as long as the prior ATO Clearance Certificate has not expired.
The ATO Clearance Certificate may be provided to the purchaser at any time during the transaction, but nevertheless it must be provided to the purchaser by settlement.
The purchaser can rely on the ATO Clearance Certificate as proof that they are not required to withhold 12.5% of the purchase price at Settlement and pay the funds to the ATO.
Once the purchaser has received a copy of the ATO Clearance Certificate they have met their obligation, even if the vendor’s circumstances change during the settlement period.
For the sale of all taxable Australian real property with a market value of $750k or more, the vendor is deemed a relevant foreign resident (even if they are in fact Australian) unless the buyer is furnished with a current ATO Clearance Certificate on or before Settlement.
If the vendor fails to provide the required ATO Clearance Certificate on or before Settlement, the buyer is required by law to deduct 12.5% from the purchase price and pay it to the ATO.
In such a situation, the vendor will face significant delays in receiving the full sale proceeds for the property.
To obtain an ATO Clearance Certificate, a vendor who is an Australian resident (or their representative) must complete an online Foreign resident capital gains withholding ATO Clearance Certificate Application Form (NAT 74883).
To access the ATO Clearance Certificate Application Form, visit the ATO website page: Capital Gains Withholding ATO Clearance Certificate Application Form and instructions for Australian Residents.
Conveyancers who are not legal practitioners or registered tax agents cannot complete the ATO Clearance Certificate Application Form on behalf of the vendor.
They can either provide the PDF version of the ATO Clearance Certificate Application Form (or URL hyperlink) to the vendor for them to complete.
If the Vendor is a foreign resident for tax purposes, the Vendor may be eligible to apply for a Variation Notice instead.
Credits:
The content for this FAQ was sourced from the ATO website page: Capital Gains Withholding ATO Clearance Certificate Application Form and instructions for Australian Residents.
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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