QLD Special conditions

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armchairlawyer

Active Member
2 August 2020
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Hi,
I have an off the plan contract and I asked for 2 x special conditions of which the developer agreed. Since then I have been provided letters from the respective parties which supports my special condition requests. The developer has now asked for the special conditions to be taken out of the contract as I now have what I asked for in writing from the other parties. My question is, do letters provide me legal protection equal to special conditions in a contract?
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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There's no way to tell without more information - specifically about the special conditions.
 

armchairlawyer

Active Member
2 August 2020
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Hi Rob,
Ok sorry I thought it may be based on agreements/documents in writing. The special conditions are:
1.
Commencement of Construction
59.1. This Contract is conditional upon the Seller’s warranty that Construction on the Lot has not commenced at date of the Contract and the Contract is further conditional upon the Seller commencing Construction of the Lot within three months from the date of this Contract. In the vent the Seller breaches its warranty or Construction does not commence within the date that is three months from the date of this Contract, the Buyer may terminate this Contract and the Seller shall refund the Deposit in full. This is the Buyer’s only remedy under this Special Condition.
59.2. The Buyer acknowledges: “Construction” excludes any civil works to the Lot undertaken by the Seller pursuant to any Approval.
59.3. The Seller makes no warranty or representation that the Buyer is or will be eligible to obtain any State of Federal grants for the construction of the Lot, including, but not limited to, any Homebuilder grant.
2.
PET APPROVAL
60.1 The Seller will use all reasonable endeavours to obtain written approval from the Body Corporate prior to settlement for the Buyer to keep one cat, weighing less than 10kg, on
the Lot.
60.2 If required by the Seller, the Buyer must provide the Seller with all reasonable assistance, including providing a photograph of the cat, the name and breed details of the cat and
evidence of Council registrations to assist the Seller to obtain such approval.
60.3 If the Seller does not obtain written approval from the Body Corporate prior to settlement, either party may terminate this Contract and the Deposit shall be refunded to the Buyer in full. This is the Buyer’s only remedy.
60.4 The Buyer acknowledges the Body Corporate may impose conditions with respect to granting any pet approval.
60.5 If approval is granted by the Body Corporate, the Buyer must comply with the conditions imposed by the Body Corporate in relation to the keeping of the cat.

I've been given a building approval certificate so that doesn't cancel out special condition 1 as it needs to be a letter from the builder stating excavation and site prep date. I only found this out today.
For special condition 2 I have a letter from the body corporate with approval for the cat.

With thanks
 

Rob Legat - SBPL

Lawyer
LawTap Verified
16 February 2017
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Gold Coast, Queensland
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Number 2 is the easier one, so I'll deal with that first. The aim of the special condition is to get 'written approval from the body corporate'. You've got that written approval, so there is no need for the special condition.

Number 1 is slightly trickier. It has two main aspects: (a) the seller warrants construction has not commenced, (b) the seller will commence construction within three months from the date of contract.

Aspect (a) is immaterial with respect to a letter - construction has either started or it hasn't.

Aspect (b) is likewise immaterial for the same reason. This is because having something in writing (i.e. an approval to build) is not the same thing as actually commencing construction. And just because you have a building approval it does not demonstrate when construction is going to commence - even if the approval said construction had to commence within the three months. Since aspect (b) is performance based in order to be satisfied, and commencing construction is the performance item, then it cannot be 'satisfied' by the approval.
 

armchairlawyer

Active Member
2 August 2020
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0
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Ok that makes complete sense when you break it down like that. Construction has commenced so I am now trying to obtain a letter from the builder providing a date the excavation and site prep started given the government home builder eligibility date of 4 June 2020. This will then satisfy that criteria. Otherwise if special condition 59 remains and no letter from the builder, then come settlement in Feb 2020 I may find out the building isn't eligible, of which I could find out now. Thanks so much Rob, extremely helpful.