Be aware that vacant possession has particular legal interpretation, both in leases and contracts for sale of land. It essentially has 2 prongs; firstly, that the land isn’t subject to a lease and secondly, that there is no physical impediment to the future occupant’s enjoyment of the land (and this can extend to impediments caused by the landlord / vendor leaving certain items on the land). Ideally, leases and sale contracts should specifically disclose what is within the property to help avoid disputes surrounding the previous land users’ abandoned items / ‘rubbish’!
Author: Nicole James
Make Good Clauses
When reviewing the case of T&L Alexandria v Sharvain Facades (2023) the court ruled on a vague “make good” clause, where unclear wording led to a costly dispute over redecorating obligations. The key takeaway? Ambiguity in leases — especially around make-good clauses — can cause headaches. Be clear and specific in your contracts to avoid messy surprises.
Guarantors Beware
Not all guarantees are created equal: understanding the risks associated with guarantees in property transactions and whether you might be forced to ‘pay the price’ for a purchaser’s non-completion.
HoAs – binding or not binding?
Be careful when asking for a “non-refundable” deposit in a heads of agreement that has all the hallmarks of a binding contract, it might just lock you in to the deal. In this case Mr. Patel paid a non-refundable $50,000 deposit under an HoA, and when the vendor withdrew claiming the HoA was non-binding, Mr Patel sought (and was granted) specific performance. A good reminder that it’s important for your HoA to be explicitly non-binding if that is your intention.
https://pinpoint.cch.com.au/document/legauUio3697613sl1502889120/patel-v-sengun-investment-holdings-pty-ltd-2023-aplc-23-046
