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May 19, 2020

PEXA, COVID-19 and Buyer Termination Rights Special Conditions

These conditions go a long way to creating a level playing field, and giving the seller and buyer security and protection. We strongly urge you to consider putting these conditions into your contracts. Like all conditions they are negotiable and should be tailored to suit the agreement. Feel free to contact us if you have any questions or if you would prefer the special condition sent via email.

PEXA Electronic Settlement Special Condition

It is an essential term of this contract that completion shall occur by way of an Electronic Settlement using the ELNO system operated by PEXA and in that regard the parties agree that an affirmative notice by each of them under condition 11.1(1) of the contract herein shall be deemed to have been given. It is agreed that in condition 11.5(2)(b) the following is deleted “or suspension of their access to the ELNO system”.

Buyer’s Termination Right

This contract is subject to and conditional on the Buyer’s lender not having revoked nor detrimentally changed the funding conditions given to the Buyer in the said lender’s finance approval prior to settlement. In the event that the lender has revoked the loan approval or changed its terms before settlement herein, so that the Buyer in his opinion is detrimentally affected and unable to complete the contract herein, then this contract shall be at an end and the deposit shall be immediately repayable without deduction to the Buyer.

If the Seller will not agree to the Buyer’s Termination Right special condition then you need to limit your exposure and only pay $1,000 by way of a deposit. where there is no Covid-19 and Suspension of Time condition the Seller may agree to a watered down version of the Buyer’s Termination Right special condition as follows -

This contract is subject to and conditional on the Buyer’s lender not having revoked nor detrimentally changed the funding conditions given to the Buyer in the said lender’s finance approval as a result of the lender’s consideration of circumstances affected by or arising from Covid-19. In the event that the lender has revoked the loan approval or changed its terms before settlement herein as aforesaid, so that the Buyer in his opinion is detrimentally affected and unable to complete the contract herein, then this contract shall be at an end and the deposit shall be immediately repayable without deduction to the Buyer.

Covid-19 and Suspension of Time

For the benefit of both parties, should either party, or the inhabitants of the property at the time the contract is entered into:

(a) Contract the covid-19 virus

(b) be placed by a relevant authority in isolation

(c) be directed by a relevant authority to self-isolate

(d) need to care for an immediate member of their household or family in the property who is directly affected by matters (a)-(c) above or

(e) be placed in a Federal, State or Local Government (Government) lock-down or

(f) is relying on any Government Authority, person, business or corporation or any agent thereof (the Identity) to deliver to a party to this Contract such information, paperwork, documents or a representative thereof to attend personally (the Performance) as is required in order for the conditions of the Contract herein to be fulfilled, and the said party to this Contract has taken reasonable steps to facilitate such Performance, and the Identity cannot perform owing to them complying with Government measures relating to Covid-19,

(g) is unable to fulfill a term of the Contract owing to them complying with Government measures relating toCovid-19 (collectively the Delay Event)

the provisions of the Contract relating to Suspension of Time shall apply as though that clause were incorporated into this special condition, subject always to this special condition prevailing, then the parties agree that the following provisions shall apply:

(i) time of the essence shall cease to apply and time shall be suspended

a. until the affected party or parties aforesaid have been medically cleared of Covid-19 by an appropriate medical professional,

b. until the said affected parties are permitted by a relevant authority to not be isolated including the lifting of any lock-down,

c. until the said affected parties no longer need to care for an immediate member of their household or family under matter (d) herein

d. the identity can again Perform, or

e. all parties to the Contract waiving the benefit of Suspension of Time,

(ii) if at the conclusion of the Delay Event the Contract is conditional on the meeting of a fundamental term (including but not being limited to instances such as building and pest, finance approval, due diligence, or subject to sale) time in respect of the performance of such condition shall be suspended and when time again becomes of the essence, the time periods for the performance of such fundamental terms shall recommence to run as though time had not been suspended, and

(iii) if upon the conclusion of the Delay Event the Contract is unconditional, completion of the Contract shall take place on the later of  

a. fourteen (14) days from the conclusion of the Delay Event and

b. the settlement date in the Contract provided that it is at least fourteen (14) days after the conclusion of the Delay Event,

provided always that

1. if the Contract were subject to finance approval and the Buyer’s finance approval expires or is revoked by the lender during the currency of the Delay Event or

2. should the Delay Event exceed (3) months

then either party to the Contract may terminate the Contract by written notice to the other, in which case the Deposit herein will be refunded in full to the Buyer and neither party will have any claim on the other in relation thereto apart from any rights either of the parties may have against the other as a result of any breach of this Contract.

It is an essential term of this Contract that

A. if the events referred to in matters (a), (b), (c) and/or (d) apply to the property the subject of the Contract herein, then the Seller shall thoroughly disinfect the property prior to completion. For the purpose of clarity, thoroughly disinfect includes, but is not limited to, vacuuming carpets, cleaning air conditioning filters and using disinfectant products to clean door handles, light switches, hard surfaces, remote controls, windows, appliances and mop floors

B. where condition A. of this paragraph does not apply then the Seller will leave the property in a neat and tidy condition and for it to be reasonably clean.

Disclaimer: This information does not constitute legal advice. The information contained in this post is given in good faith without reference to any specific set of circumstances and should not be relied upon without first referring the conditions to the parties to the Contract and upon them having received legal advice before agreeing to use the conditions.

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