Contract for Sale of Real Estate for Australian Capital Territory

THIS SALES AGREEMENT (the "Agreement") dated this _______ day of ______________, _______ (the "Execution Date")

BETWEEN :

_______________
(the "Seller")

-AND-

_______________
(the "Buyer")

BACKGROUND
The Seller wishes to sell a certain completed home and the Buyer wishes to purchase this completed home.

IN CONSIDERATION OF and as a condition of the Seller selling the Property and the Buyer purchasing the Property and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged here, the parties to this Agreement (individually the "Party" and collectively the "Parties") agree as follows:

1. Property
   
1. The Property is situated at _________________________________ and the legal description of the Property is as follows: _____________________________________________________________, which includes fixtures and improvements located on the Property and all rights, privileges and appurtenances associated with it, including but not limited to permits, easements, and cooperative and association memberships (the "Property").
   
2. The Seller agrees to sell and convey to the Buyer and the Buyer agrees to purchase from the Seller the Property.
   
3. Purchase Price
   
3. The purchase price for the Property (the "Purchase Price") will be paid as follows:
   
   1. deposit payable after the Effective Date of this Agreement (the "Deposit") is: $____________;
      
   2. at closing, the cash portion of the Purchase Price payable by the Buyer is $____________;
      
   3. excluding any loan funding fee or mortgage insurance premium, the sum of all financing is: $____________; and
      
   4. the total Purchase Price payable is: $____________.
      
4. Goods and Services Tax
   
4. Goods and Services Tax ("GST") is not to be added to the Purchase Price unless otherwise provided in this Agreement.
   
5. The sale of the Property is an input taxed supply of residential premises. No GST is payable or collectable from either Party. If the sale is not input taxed, but is a taxable supply, then the Buyer must pay to the Seller the amount of any GST payable by the Seller in respect of the sale of the Property.
   
6. On closing, the Seller must give to the Buyer a tax invoice for any taxable supply by the Seller under this Agreement, unless the margin scheme applies.
   
7. The Buyer is required to make a residential GST withholding payment. On or before the closing date, the Buyer will pay the amount required to the Australian Tax Office ("ATO"). This amount will then be held back from the Purchase Price at the Closing Date.
   
8. Financing Terms
   
8. The portion of the Purchase Price not payable in cash by the Buyer amounts to $____________ and it will be paid by one or more third party mortgage loans.
   
9. This Agreement is not subject to the Buyer being approved for financing.
   
10. Deposit
    
10. The Buyer will deposit $____________ as the Deposit at __________________________________________________ with ________________________ acting as deposit holder, on or before 18 April 2021. Failure to deposit the Deposit as provided in this clause will result in the Buyer being in default under this Agreement.
    
11. Title Search
    
11. The Buyer, at the Buyer's own expense, shall be allowed until 6:00 p.m. on the 18th day of April, 2021 (the "Requisition Date") to examine the title to the Property. The Buyer will have until 30 days from the Requisition Date or the date on which the conditions in this Agreement are fulfilled or otherwise waived; or five days prior to the Closing Date, whichever date is earlier, to be satisfied that there are no outstanding work orders or deficiency notices affecting the property, and that its present use as a residential home may be lawfully continued and that the principal building may be insured against risk of fire.
    
12. Title
    
12. The title to the Property must be transferred free from all mortgages, restrictions, encumbrances, leases, liens, charges, notices, orders, caveats, writs or other interests except as otherwise provided in this Agreement.
    
13. If consent to transfer is required by legislation, the requirements set out by legislation will be duly complied with to enable transfer of title by the Closing Date.
    
14. If within 30 days of the Requisition Date or the date on which the conditions in this Agreement are fulfilled or otherwise waived; or five days prior to the Closing Date, whichever date is earlier, the Seller is notified in writing of one or more of the following:
    
    1. there is a valid objection to title or to any outstanding work order or deficiency notice; or
       
    2. the present use of the Property may not lawfully be continued; or
       
    3. the principal building may not be insured against risk of fire,
       

    which the Seller is unable or unwilling to remove, remedy or satisfy or obtain insurance save and except against risk of fire in favour of the Buyer and any mortgagee, (with all related costs at the expense of the Seller), and which the Buyer will not waive, this Agreement notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end and all monies paid shall be returned without interest or deduction and the Seller shall not be liable for any costs or damages. Save as to any valid objection so made by such day and except for any objection going to the root of the title, the Buyer shall be conclusively deemed to have accepted the Seller’s title to the property.

15. The land lease of the Property is or will be by closing granted under the Planning and Development Act 2007 (ACT).
    
16. Vacant Possession
    
16. Unless otherwise provided in this Agreement, the Buyer is entitled to vacant possession on closing.
    
17. If, before completion, the Buyer becomes aware of a breach of this section, the Buyer may:
    
    1. rescind the contract; or
       
    2. complete the contract and claim damages.
       
18. Future Use
    
18. The Parties agree that there is no representation or warranty of any kind that the future use of the Property by the Buyer is or will be lawful.
    
19. Conveyance Duty
    
19. If the sale is subject to conveyance duty, then the Buyer shall deliver the amount of duty required, by the time required, to such place or places as the ACT Revenue Office may designate.
    
20. Property Access and Inspection
    
20. The Buyer may, at its sole cost, select inspectors and pest controllers licensed to practise within the Australian Capital Territory or any lawful agent authorised to make inspections to inspect the Property. The Buyer will deliver to the Seller a written notice of any defects in addition to a copy of the inspection report within 10 days after the inspection. At all reasonable times, the Seller is to permit the Buyer or its agents access to the Property for the purpose of inspection and will pay for turning on existing utilities.
    
21. Property Condition
    
21. The Buyer accepts the Property in its current state and condition without any further work, repairs, treatments or improvements, except as provided in this Agreement.
    
22. The Seller does not know of any material facts that would affect the value of the Property, except those observable by the Buyer or any known to the Seller which are disclosed in this Agreement.
    
23. Warranties
    
23. The Seller makes no express warranties aside from those expressly described in this Agreement or the attached addenda. Upon closing, the Seller agrees to assign all manufacturer warranties that are assignable to the Buyer.
    
24. The Buyer warrants that the Commonwealth Treasurer cannot prohibit and has not prohibited the transfer under the Foreign Acquisitions and Takeovers Act 1975 (Cth).
    
25. Closing
    
25. The date that the sale of the Property becomes final and the Buyer takes possession (the "Closing Date") shall be no later than 18 April 2021. In the absence of legal excuse, the failure to close the sale on the Closing Date by either Party will enable the non-defaulting party to pursue any remedies on default provided in this Agreement.
    
26. Upon closing, the Seller will provide to the Buyer proof of transfer of title, showing no further exceptions to title of the Property other than any exceptions provided in this Agreement, and a current tax statement which shows no delinquent taxes on the Property.
    
27. The Buyer will pay the Purchase Price in good funds acceptable to the deposit holder.
    
28. Any notices, statements, certificates, affidavits, releases, loan documents and other documents required by this Agreement, or by law, which is necessary for the closing of the sale must be promptly executed and delivered by the Seller and the Buyer.
    
29. All covenants, representations and warranties in this Agreement will survive closing and may be enforced.
    
30. Possession
    
30. Possession of the Property in its current or required state, ordinary wear and tear excepted, will be delivered by the Seller to the Buyer upon proper funding at closing.
    
31. Where there is no temporary lease, early possession agreement, licence, or other written agreement, and either the Buyer has possession prior to closing or the Seller has possession after closing, a tenancy at sufferance relationship will be created between the Parties, and the Parties must keep the property in good condition and repair having regard to its condition at possession and must not alter the Property in any way without prior written consent from the other Party. Unless the Parties agree in writing to a fee or rent, none is payable. The Parties should consult their respective insurance agent and are responsible to ensure adequate coverage exists upon the transfer of ownership and possession.
    
32. Restrictions on Transfer
    
32. The Property is not subject to any restrictions on transfer, except as provided in this Agreement.
    
33. This Agreement shall be effective to create an interest in the Property only if the Seller complies with the requirements set out in the Planning and Development Act 2007 (ACT), if any.
    
34. Settlement and Other Expenses
    
34. Unless both Parties otherwise agree in writing, the following expenses payable by the Seller (the "Seller's Expenses") must be paid at or prior to closing:
    
    1. All existing liens; prepayment penalties; recording fees; lender, tax statements or certificates; and all expenses payable by the Seller under this Agreement must be released or discharged accordingly.
       
35. Unless both Parties otherwise agree in writing, the following expenses payable by the Buyer (the "Buyer's Expenses") must be paid at or prior to closing:
    
    1. Loan origination, discount, and buy-down.
       
    2. All expenses related or incident to any loan, including but not limited to, appraisal fees, application fees, credit reports, loan documents preparation fees, recording fees on notes and mortgages; as well as preparation of transfer documents, recording fees on the transfer documents and financing statements; inspection fees; all prepaid items including flood and hazard insurance premiums; documentary stamp tax; and all other expenses payable by the Buyer, necessary to perform the Buyer's obligation under this Agreement must be released or discharged accordingly.
       
36. If any expense to be paid by either Party exceeds the amount expressly stated in this Agreement, the Party responsible for the said exceeding amount may terminate this Agreement unless the other Party agrees to pay the excess amount.
    
37. The Buyer will be responsible for paying any applicable conveyance duty, and will be responsible for any penalties if not paid within the required time.
    
38. Prorations
    
38. The following items will be prorated and adjusted as property as of the Closing Date: any rents, land charges, income, mortgage interest, strata contributions and levies, realty and land taxes including local improvement rates and unmetered public or private utility charges and unmetered cost of fuel. If the tax rate for the current year is unknown, the Parties will use the rate from the previous year plus five percent at closing. If the tax rate for the previous year is also unknown, the deposit holder will estimate an amount to prorate, holdback sufficient funds and adjust the prorated amount when the new tax statements become available. The Buyer will be obligated to pay the share of the prorated taxes for the current year if the taxes are not paid at or prior to the closing.
    
39. Property Assessment
    
39. The Parties hereby acknowledge that the Australian Capital Territory has property valuations done annually by the ACT Revenue Office. The Parties agree that no claim will be made against either Party for any changes in property tax as a result of a re-assessment of the Property, save and except any property taxes that accrued prior to the Closing Date.
    
40. Risk of Loss
    
40. The Seller will bear all risk of loss to the Property or its improvements, which includes, but is not limited to, physical damage or destruction to the Property, or loss caused by resumption/compulsory acquisition, until the Closing Date. If at any point after the Effective Date but prior to closing, any part of the Property is damaged or destroyed, the Seller will restore the Property to its previous condition as soon as possible before the Closing Date, reasonable delays excepted. If the Seller fails to restore the Property due to unforeseeable factors beyond the control of the Seller, the Buyer may elect one of the following:
    
    1. the Agreement will terminate and the Deposit will be refunded to the Buyer within 10 days;
       
    2. the Closing Date will be extended as necessary to accommodate the performance of restoration; or
       
    3. at closing, the Property in its damaged state will be accepted and all insurance proceeds will be assigned from the Seller to the Buyer and the Buyer will receive an amount equal to the deductible under the Seller's insurance policy.
       

    The Seller's obligations under this provision are independent of any obligations of the Seller found under the heading Property Condition.

41. Delay of Settlement
    
41. If completion does not take place by the Closing Date, either Party may serve a notice to complete on the other Party, appointing a date not less than 14 business days after notice is served by which completion must occur. At the time the notice is served, the serving Party must be ready, willing and able to complete but for some default of the other Party.
    
42. On completion, the defaulting Party must pay to the non-defaulting Party interest on the Purchase Price at the rate of 10% per annum calculated daily from the 7th day after the Closing Date until completion.
    
43. Remedies on Default
    
43. A Party will be in default if the Party fails to comply with the provisions of this Agreement, and as otherwise provided in this Agreement.
    
44. Where a Party is in default other than for failing to complete, the other Party may at any time after the default serve the defaulting Party with a notice of default, which must specify a date not less than seven days after service of the notice to rectify the default.
    
45. If the Buyer is in breach of the Agreement, fails to comply with a notice to complete, or fails to comply with a notice of default, the Seller may serve written notice of termination on the Buyer, and may keep the Deposit (up to 10% of the Purchase Price) and either sue the Buyer for breach or resell the Property, and claim any deficiency on the resale as liquidated damages for up to 12 months after termination.
    
46. If the Seller is in breach of the Agreement, fails to comply with a notice to complete, or fails to comply with a notice of default, the Buyer may serve written notice of termination on the Buyer and seek damages, or enforce without further notice any other rights and remedies available to them. Upon termination by the Buyer, the Buyer will be immediately refunded any money paid in relation to the Agreement.
    
47. To make a claim for compensation, the Buyer must give notice to the Seller before completion stating the amount claimed. If the claim is not for delay, the Seller can terminate the contract if: a) the amount is more than 5% of the Purchase Price; b) the Seller serves notice of intent to terminate on the Buyer; and c) the Buyer does not waive the claim within 14 days of receiving the notice. If the Seller does not terminate the contract, the parties must complete and the Buyer will be entitled to either the amount claimed or 5% of the Purchase Price, whichever is lower.
    
48. Deposit Holder
    
48. The Seller and the Buyer agree that the deposit holder is not:
    
    1. a party to this Agreement and will not assume any liabilities incurred as a result of the performance or nonperformance of either the Buyer or the Seller, and that no liability will be incurred unless the deposit holder is grossly negligent or wilfully breaches the terms of this Agreement;
       
    2. liable for the loss of the Deposit as a result of the failure of any financial institution in which the Deposit has been deposited unless the said institution is acting as the deposit holder; and
       
    3. liable for interest on the Deposit.
       
49. Upon closing, the Deposit will be applied in the following order with the excess refunded back to the Buyer:
    
    1. any cash down payment; and
       
    2. Buyer's Expenses.
       
50. At all relevant times during the course of this Agreement, the deposit holder is required to notify the other Party prior to the releasing of any funds to the Party who is requesting the funds.
    
51. The notice of the deposit holder to either Party will be deemed effective upon its deposit to any Australia Post offices or mailboxes with receipt requested, provided that the notice contains adequate postage and the correct mailing address of the Party contained in this Agreement is inscribed on the notice. The notice of objection to the demand of the Deposit will be deemed effective upon receipt by the deposit holder.
    
52. Seller Representations
    
52. The Seller represents and warrants that there will be no liens, assessments, or security interests from third parties against the Property which will not be satisfied out of the sales proceeds. The Seller makes no representation aside from those expressly provided in this Agreement. If the representations of the Seller are untrue upon the Closing Date, the Buyer may terminate this Agreement and the Deposit will be refunded within 10 days.
    
53. The Seller warrants that the lease is a non-land rent lease.
    
54. The Seller represents and warrants the Property is sold free of encumbrances, other than those provided in this Agreement or shown on the certificate of title. If, before closing, the Buyer becomes aware of any undisclosed encumbrance, the Buyer may rescind the contract, or complete the contract and claim damages.
    
55. The Seller represents and warrants that there are no unapproved structures on the Property, except as disclosed in this Agreement. If, before closing, the Buyer becomes aware of any undisclosed unapproved structure, the Buyer may ask the Seller to have the structure approved before closing and if not approved by closing, rescind the contract or complete and claim damages.
    
56. The Seller warrants that, at closing, the Seller:
    
    1. will be able to complete the contract;
       
    2. has no knowledge of any unsatisfied judgment, order or writ affecting the Property; and
       
    3. has no knowledge of any current or threatened claims, notices or proceedings that may lead to a judgment, order or writ affecting the property.
       
57. If, before completion of the contract, the Buyer becomes aware of an error in the description of the Property, the Buyer may ask the Seller to correct the error before closing. If the error is not corrected before closing, and it is a material error, then the Buyer may rescind the contract or complete and claim damages. If the error is not a material error, then the Buyer may complete the contract and claim damages.
    
58. Requisitions
    
58. Except as provided in this Agreement, the Seller does not know of any outstanding demand, order, judgment, requisition or requirement relating to the Property.
    
59. The Buyer shall not make any requisitions on the title to the Property.
    
60. The Buyer shall not make any claim or requisition in respect of any dividing fence within the meaning of the Common Boundaries Act 1981 (ACT), or for any service for another property passing lawfully through the Property.
    
61. Notices
    
61. All notices pursuant to this Agreement must be written and signed by the respective Party or its agent and all such correspondence will be effective upon it being posted with return receipt requested, hand-delivered, or transmitted by facsimile as follows:
    
    

    To the Buyer at:	To the Seller at:
    Name: _______________ Address: ______________________________ Telephone: _______________ Fax: _______________	Name: _______________ Address: ______________________________ Telephone: _______________ Fax: _______________

62. Addenda
    
62. In addition to any aforementioned required documents, these addenda will also constitute as part of this Agreement:
    
    1. Third party financing condition addendum.
       
63. Assignability
    
63. The Buyer may not assign this Agreement without the Seller’s written consent. This Agreement is binding on the respective heirs, executors, administrators, successors, personal representatives and assigns, as the case may be, of the Seller and the Buyer.
    
64. Effective Date
    
64. The effective date of this Agreement (the "Effective Date") is the latter of the date the Buyer executed this Agreement and the date the Seller executed this Agreement.
    
65. Governing Law
    
65. The Parties agree this Agreement will be construed under the laws of the Australian Capital Territory, without regard to the jurisdiction in which any action or special proceeding may be instituted.
    
66. Severability
    
66. If there is a conflict between any provision of this Agreement and the applicable legislation of the Australian Capital Territory (the "Act"), the Act will prevail and such provisions of the Agreement will be amended or deleted as necessary in order to comply with the Act. Further, any provisions that are required by the Act are incorporated into this Agreement.
    
67. If any term or provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected and each unaffected term and provision of this Agreement will be valid and be enforceable to the fullest extent permitted by law.
    
68. No Broker or Agent
    
68. There are no obligations on either Party for the payment of broker fees in this Agreement. The Parties agree that no real estate brokers or agents were procured for their services in connection with this Agreement or any part of the sale agreement prior to the signing of this Agreement. If a broker or agent was retained, the Party which employed the said broker or agent will be solely liable for the costs associated with it.
    
69. Agreement of Parties
    
69. This document constitutes the entire agreement of the Parties and it may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreement. The provisions contained in this Agreement cannot be changed except by the signed and delivered written consent of both Parties.
    
70. The required documents listed in section 9(1)(a)-(k) of the Civil Law (Sale of Residential Property) Act 2003 (ACT) form part of this Agreement.
    
71. Consult a Lawyer
    
71. The Seller and the Buyer should consult a lawyer before this Agreement is executed if any aspect of the Agreement is not understood. The Seller and the Buyer agree each will notify the other of the contact information for the respective lawyer, if any, responsible for this real estate transaction.
    
72. Electronic Transaction
    
72. If this transaction is to be conducted as an electronic transaction, then the Parties must conduct the transaction in accordance with the Electronic Conveyancing National Law (ACT) Act 2020.
    
73. General Provisions
    
73. This Agreement may be executed in counterparts. Facsimile signatures are binding and are considered to be original signatures.
    
74. All monetary amounts in this Agreement refer to Australian dollars, and all payments required to be paid under this Agreement will be paid in Australian dollars unless the Parties agree otherwise in writing.
    
75. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender mean and include the feminine gender and vice versa. Words importing persons include firms and companies and vice versa.
    
76. Time is of the essence in this Agreement. Every calendar day except Saturday, Sunday, a public holiday or a bank holiday recognised in the Australian Capital Territory will be deemed a business day and all relevant time periods in this Agreement will be calculated in business days. Performance will be due the next business day if any deadline falls on a Saturday, Sunday, public holiday or a bank holiday. A business day ends at five p.m. local time in the time zone in which the Property is situated.
    
77. Cooling Off Period
    
77. Subject to any exceptions laid out in this Agreement, the Buyer may rescind this Agreement by serving written notice to the Seller at any time before 5:00 p.m. on the 5th business day after the day this Agreement is made.
    
78. There is no cooling off period if:
    
    1. the Property is sold by tender or auction;
       
    2. the Buyer is a corporation;
       
    3. the Buyer makes their offer after bidding at an unsuccessful auction on the same day the Property was offered for sale; or
       
    4. before signing this Agreement, the Buyer gives the Seller a certificate in the form required by the Civil Law (Sale of Residential Property) Act 2003 (ACT), which is signed by a lawyer.
       
79. A Buyer who rescinds this Agreement during the cooling off period forfeits 0.25% of the Purchase Price, to which the Seller is entitled to recover from the Deposit. The Buyer is entitled to a refund of any balance.
    
80. Signatures
    
    

    SIGNED, SEALED AND DELIVERED in the presence of:

    IN WITNESS whereof I have hereunto set my hand and seal:

    ____________________ Witness

    ____________________ _______________

    ______________ Date

    SIGNED, SEALED AND DELIVERED in the presence of:

    IN WITNESS whereof I have hereunto set my hand and seal:

    ____________________ Witness

    ____________________ _______________

    ______________ Date