• Joint Form of General Conditions 2018: summary of changes

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    REIWA recently held a member forum which revealed the changes to the 2018 version of the Joint Form of General Conditions.

    To help assist you, we’ve put together a summary of all the changes.

    For a full explanation of the changes, please download the MDS presentation notes  or view a mark-up of the changes.

    Find out about the changes to the Offer and Acceptance forms.

    To purchase the new forms, visit the REIWA members' shop.

    Major amendments

    • Inclusion that notices can be served electronically by email (clause 21 4(a)(3)).
    • Inclusion of matters relevant to chattels covered under the Personal Property Securities Register (clause 2.8).
    • Inclusion of the Foreign Resident Withholding Regime (clause 3.7) (currently annexure #190) Inclusion of Electronic Conveyancing (clause 3.12) (currently annexure #187).
    • Final inspection - a further right to inspect the property if the initial inspection identified items that require rectification by the seller under the contract (clause 5.1(b)).
    • Seller representation and warranty- new provision that if anything occurs between contract date and settlement that results in a warranty or representation being untrue then the buyer does not have any right to terminate or defer settlement unless the event unreasonably affects the proposed use of the property by the buyer or materially affects the value of the Property (clause 9.3).
    • Sub-division - provides for the changes to section 13 of the Sale of Land Act where the seller of a sub-division of land or a strata lot is not the registered proprietor of the land when entering into the contract with the buyer. There are special provisions relating to a Warning Notice, the Deposit, conditions on approval, lodging plans and giving information (clause 13.9). Form 191 “Warning For Purchasers - Sale of Land Act” contains the required warnings.

    Amendments

    New Definitions
    Term Reason Relevant clause
    Clearance certificate Withholding tax regime 3.7(a), 26.1
    Commissioner  Withholding tax regime  3.7, 26.1 
    Future Lot  Changes to s13 of Sale of Land Act  1.4, 13.1, 13.9, 13.10 
    Tax Administration Act  Withholding tax regime  3.7, 26.1 
    Threshold amount  Withholding tax regime  3.7, 26.1 
    Variation notice  Withholding tax regime  3.7, 26.1 
    Withholding amount  Withholding tax regime  3.7, 26.1 

    1.4 Deposit Future Lot
    It states that when the sale relates to the sale of a Future Lot (as defined in the Sale of Land Act, but means selling land the seller does not own at the contract date) that the deposit must be paid to the deposit holder within two business days from receipt and held on trust for the person entitled to receive the deposit with either a legal practitioner, real estate agent, or a settlement agent.

    1.9 Investment of Deposit
    Clarifies that the deposit can be paid into an interest earning trust account, if required by law.

    2.3 Rate Encumbrance- Unpaid Outgoing
    Now provides for when a Rate Encumbrance is registered on the certificate of title then prior to settlement the Rate Encumbrance must be removed from the title at settlement.

    2.8 Security Interest
    The seller in Section 9.1(h) still represents that the seller has good title and is or will be the sole owner of the property chattels.

    The new section 2.8 permits the buyer, after obtaining relevant information from the seller, to search the Personal Property Security Register to determine if there are security interests registered against the property chattels being sold with the property.

    3.7 Foreign Resident Withholding
    The General Conditions will now incorporate the provisions that were previously in REIWA annexure 190.

    The provisions clarify that if the market value of the Property is the Threshold Amount (currently $750,000) or more and the seller does not provide a Clearance Certificate then the buyer must deduct the withholding amount (currently 12.5 per cent) and pay that amount to the ATO.

    3.12 Electronic Conveyancing
    The General Conditions will now incorporate the provisions that were previously in REIWA annexure 187.

    The electronic conveyancing system, known as PEXA, for settlement will apply when it is a Landgate requirement, or if the contract specifies there will be, or the parties agree to an electronic settlement. The Landgate requirement is scheduled to take effect on 1 May 2018.

    The provision sets out matters relating to setting up the workspace, electronic correspondence, withdrawal from electronic settlement, payment, tracing mistaken payments, delayed settlements.

    The General Conditions still provide for the existing ‘manual’ settlements.

    5. Inspection
    Section 5.1(a) now clarifies that the purpose of the inspection is to check that the seller has complied with the seller’s obligations under the Contract, and that access is granted for that purpose; and now provides that the buyer and seller should endeavour to agree to the timing of the initial inspection five business days before the settlement date.

    Section 5.1(b) now provides for the buyer’s right to one further inspection prior to settlement or possession, if the buyer in the initial inspection, has identified items that require rectification by the Seller under the Contract. By way of example, if the swimming pool was in a pristine condition at the Contract date but at the inspection the pool water was green rather than clean, then the buyer would be entitled to a second inspection to confirm that the pool was in the condition as it was in at Contract date. This is not an opportunity to conduct another full inspection but rather to determine if the initial problem has been resolved.

    9 Seller Representation & Warranty
    9.3 is a new clause and has been added to address the scenario where after Contract Date but before settlement anything occurs or comes into existence with the result that a warranty or representation would be untrue as at settlement.

    If this occurs, then unless the parties otherwise agree, the buyer will have no right to terminate the Contract or defer or delay settlement or withhold any part of the purchase price unless the event unreasonably affects the proposed use of the property by the buyer or materially affects the value of the property.

    Although there could be a debate about what those things ultimately mean, it would really boil down to what a court would say is reasonable or material.

    The new clause 9.3 should now provide direction to conveyancers in dealing with clients who, for instance, say that they will not settle unless this or that is fixed or done. The new clause probably reflects what the common law position is, but gives express written clarity.

    13 Subdivision
    Sub division- provides for the changes to section 13 of the Sale of Land Act where the seller of a sub-division of land or a strata lot is not the registered proprietor of the land when entering into the contract with the buyer. There are special provisions relating to a Warning Notice, the deposit, conditions on approval, lodging plans and giving information (clause 13.9)

    21 Notice
    Clause 21.4 has been amended to provide for the service of notices by email.

    The notice is deemed to be served when it is sent unless a return email is received to the effect that the email was unsuccessful.

    If the email is sent after 5pm or is sent on a day that is not a Business Day then it is deemed to have been served on the following Business Day.

    With the new version of the Joint Form of General Conditions, the following forms have been updated to reflect the 2018 version:
    • Seller’s notice to Buyer Termination of the Contract (Form 813)
    • Rural Contract for Sale of Land or Strata Title by Offer and Acceptance (Forms 809 and 809A3)
    • Rural Sale by Tender part A: Invitation to Tender (Form 206A)
    • Agency’s Auction Checklist (Form 114)
    • GST Annexure – Contract for the Sale of Land or Strata Title by Offer and Acceptance (Form 159)
    • Agreement for possession prior to settlement for a period of one month or greater (Form 764)
    • Agreement for possession before settlement for a period of less than one month (Form 765)
    • Contract for Sale of Land or Strata Title by Offer and Acceptance (Forms 810, 810 2page, 810A3)
    • Contract for Sale of Land or Strata Title by Offer and Acceptance (Commercial) (Form 810C)

    The following forms have further changes (in addition to the above change), as listed below:
    Option to Purchase Land (Form 116)
    • The conditions now include a provision for the foreign resident withholding regime.
    • The withholding regime applies to all option agreements notwithstanding the value of the consideration paid for the option or the value of the property the subject of the option.
    • Therefore, if the buyer is a 'foreign resident' then the seller granting the option must withhold and pay to the Commissioner 12.5 per cent of the Option Fee.

    Seller’s Disclosure Statement (Form 322) and Seller’s Disclosure Statement Commercial Property (Form 404)
    • Addition of question to determine the NBN status of the property
    • Addition of question to determine if there is anything the buyer would want to know about the property, the neighbours or the area.

    Auction Particulars and Conditions of Sale of Freehold property (Form 115)
    • Added provision for an email address so that notices can be served electronically to that address.

    Finally, we have removed Form 112 2009 Joint form of General Conditions.

    For any forms that are not finalised or any templates you have created of the above forms, you will see an exclamation mark (!) icon next to the form name. This is the prompt to update the form based on the change.


    Common questions

    Q. Can I get a credit from REIWA for the forms that I have in stock?
    A. No credit is available as the forms can continue to be used.

    Q. Can my existing stock of forms continue to be used?
    A. Yes, the existing forms continue to be valid contracts that can be used.

    Q. Is it best to use the new forms?
    A. We encourage you to swap over to the new forms as the new forms contain provisions that can benefit both parties e.g. service of notices by email.

    If you have any queries on the changes, chat to your REIWA Member Engagement Representative on 9380 8288.







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