AUQLDREPS002 - ADL Distributed Special Conditions

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14 Jun 2022

Agents Commission - Deposit Not Sufficient to Cover

1.

The Vendor acknowledges and confirms having appointed the Agent in accordance with the Estate Agents Act 1980 and, in accordance with the terms and conditions of such appointment, directs the Deposit Holder to retain from the deposit monies, sufficient funds to pay any Commissions payable to the Agent.

2.

(a)

Provided however, should the Deposit monies paid to the Deposit Holder not be sufficient to pay the whole of the Commission due to the Agent, both the Purchaser and the Vendor agree, and in the case of the Vendor, authorises and directs the Purchaser to pay to the Agent the outstanding Commission due from the balance purchase monies at the time of settlement.

 

(b)

The Agent (as is evidenced by the signing of this Contract), accepts the benefit of the provisions of Clause 2(a) of this Special Condition.

Building Covenants

1.

The Purchaser acknowledges that building covenants, the terms of which have been disclosed to the Purchaser, and are attached to this Contract marked with the letter 'A' (the 'Building Covenants'), apply in respect of the Land in favour of the original developer of the Land (the 'Original Developer').

2.

This Contract is subject to and conditional upon the Purchaser signing and delivering to the Vendor on the Settlement Date a Deed of Covenant prepared by the Vendor, in reasonable terms in favour of the Original Developer obliging the Purchaser to comply with and be bound by the Building Covenants (the 'Deed of Covenant'). Such Deed of Covenant to be delivered to the Vendor not less than <<Enter Number of Days Here>> days prior to the Settlement Date.

Building Inspection

This sale is subject to and conditional upon the Purchaser obtaining, at the Purchaser's own expense a building report within 7 days (or such other period as the parties may agree) of acceptance of this contract. Should the report identify a Major Defect the Purchaser will:

1.

give notice no later than 5.00pm on the last day of the time period set out in the first paragraph of this Special Condition (which notice must include as an attachment a copy of the relevant inspection report) to the Vendor identifying the Major Defect/s specified in the report;

2.

request the Vendor to, at its own cost rectify such Major Defect/s prior to Settlement; and

3.

should the Vendor decline or be unable to comply with the Purchasers request to rectify, the Purchaser may end this contract in which case all monies paid by the Purchaser to the Vendor must be refunded forthwith.

Major Defect: means for the purpose of this Special Condition a defect of such nature as to require substantial rectification work so as to maintain the building in a safe condition for habitation.

Contemporaneous Contract

1.

This Contract is subject to and conditional upon:

 

(a)

the Vendor contemporaneously entering into a Contract (Additional Contract) to purchase the Purchaser's property situated at <<Enter Address Details Here>> with the execution of this Contract; and

 

(b)

contemporaneous completion with the Additional Contract

2.

Default under the Additional Contract by either party will give the non-defaulting party the right to terminate this Contract and in the case of the Purchaser terminating, repayment of the deposit monies to the Purchaser.

Due Diligence

1.

This Contract is subject to and conditional upon the Purchaser carrying out due diligence enquiries with respect to the property, the subject of this Contract, and being satisfied in all respects with the results of such enquiries.

2.

The Vendor agrees to permit the Purchaser and its representatives, access to the property at all reasonable times to carry out the enquiries.

3.

The parties agree that the Purchaser shall be allowed a period of fourteen (14) days from the date of this contract in which to conduct the enquiries.

4.

All searches and enquiries undertaken by the Purchaser for the purposes of due diligence must be undertaken at the expense of the Purchaser in all respects.

5.

The Purchaser must ensure that there is no disturbance or annoyances caused to the Property or the use of the Property by reason directly or indirectly of the searches and enquiries undertaken by the Purchaser for the purposes of due diligence.

6.

If the Purchaser acting reasonably, is not satisfied in all respects with the results of the enquiries then the Purchaser may deliver written notice to the Vendor, at any time on or before 05:00pm on the date being fourteen (14) days from the date of the Contract, terminating this Contract, in which case all monies paid by way of deposit or otherwise shall be refunded in full to the Purchaser.

7.

If the Purchaser does not notify the Vendor in accordance with Clause 6 of this Special Condition, the Vendor may (without prejudice to any other rights), by notice, terminate this Contract.

8.

This Contract is not terminated until notice is given.

Family Court Proceedings

1.

The Vendor acknowledges the Purchaser is a party to court proceedings to determine the division of Property between the Purchaser and the Purchaser's former spouse or partner.

2.

This Contract is subject to and conditional upon the Purchaser receiving, not later than the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>> (Due Date) from the determination of the court proceedings, sufficient funds to complete this Contract being not less than $<<Enter Amount Here>> (The Funds).

3.

The Purchaser must notify the Vendor in respect of Clause 2 of this Special Condition no later than 05:00pm on the day following the Due Date.

4.

If the Purchaser has not received The Funds by the Due Date, or notified the Vendor as required by Clause 3 of this Special Condition, either party may terminate this Contract by notice in writing to the other, in which case the Contract will be at an end and the Deposit refunded to the Purchaser.

5.

The Settlement Date will be the date which is seven days after the date the Purchaser notifies the Vendor that The Funds have been received.

6.

The Contract is not terminated until notice is given.

Foreign Investment Review Board Approval

1.

This Contract is conditional upon the Purchaser obtaining written approval from the Foreign Investment Review Board in accordance with the provisions of the Foreign Acquisitions and Takeover Act 1975, for its purchase of the Property on conditions satisfactory to it ('Approval') within forty-two (42) days from the Contract Date ('Approval Date').

2.

The Purchaser must promptly take all reasonable steps to apply for and obtain the necessary approval.

3.

The Purchaser must not later than 5pm on the day following the Approval Date give notice to the Vendor advising Approval or rejection of the Application.  In the case of notice of rejection, this Contract will be at an end.

4.

Should the Purchaser not give notice to the Vendor in accordance with Clause 4 of this Special Condition, the Vendor may by notice, terminate this Contract.

5.

If the Purchaser or the Vendor terminates this Contract under Clauses 3 or 4 of this Special Condition, any money paid by the Purchaser on account of the Deposit must be refunded.

Local Government Approval of Plans

1.

This Contract is subject to and conditional upon the Buyer receiving written approval from the Local Government in accordance with the Planning and Environment Act 1987 (and all other applicable legislation) for the construction of <<Enter Details of Required Construction Here (refer to an Addendum if necessary)>> on the Property on conditions satisfactory to the Buyer ('Approval') within <<Enter Number of Days Here>> days of the Contract Date ('Approval Date').

2.

The Buyer must at its own expense in all things, apply to the Local Government (and any other applicable authority) for the Approval as soon as possible after the Contract Date, and must use its best endeavours to obtain the Approval by the Approval Date.

3.

The Seller agrees to sign all documentation required to obtain the Approval within three business days of being requested to do so by the Buyer and consents to the application for Approval being made in the Buyer's name.

4.

Insofar as it is necessary for the Buyer, its servants or Agents to enter the Property for the purposes connected with this application for Approval, the Seller agrees to such access, provided however, such entry shall be at the risk of the Buyer and any damage caused shall be rectified by and at the cost of the Buyer.

5.

The Buyer is responsible for all costs relating to the Approval.

6.

The Buyer must give notice to the Seller as soon as possible after receiving advice from the Local Government (or other applicable authority) as to the outcome of the application and further advise whether or not such approval is on conditions satisfactory to the Buyer.

7.

If the Buyer, having complied with its obligations under this Special Condition, has not obtained the Approval by the Approval Date then the Buyer may by notice to the Seller:

 

(a)

terminate this Contract; or

 

(b)

waive the benefit of this condition.

8.

Should the Buyer not give notice to the Seller in accordance with Clauses 7(a) or 7(b) of this Special Condition by 05:00pm on the Approval Date the Seller may, by notice, terminate this Contract.

9.

This Contract is not terminated until notice is given.

10.

All monies paid by way of Deposit will be forthwith refunded to the Buyer once this Contract is terminated in accordance with this Clause.

11.

Should the application for Approval be granted by the local government (or other relevant authority) on conditions satisfactory to the Buyer, this Contract is further subject to no appeal being lodged with any Tribunal or Court of competent jurisdiction. Should such an appeal be lodged the Buyer may terminate this Contract or waive the benefit of this Clause.

Pest Inspection

This sale is subject to and conditional upon the Purchaser obtaining, at the Purchaser's own expense a pest inspection report within 7 days (or such other period as the parties may agree) of acceptance of this contract. Should the report identify a live timber pest infestation the Purchaser will:

1.

give notice no later than 5.00pm on the last day of the time period set out in the first paragraph of this Special Condition (which notice must include as an attachment a copy of the relevant inspection report) to the Vendor giving particulars of the infestation specified in the report;

2.

request the Vendor to, at its own cost rectify such infestation prior to Settlement; and

3.

should the Vendor decline or be unable to comply with the Purchasers request to rectify, the Purchaser may end this contract in which case all monies paid by the Purchaser to the Vendor must be refunded forthwith.

Prior Contract and Stamped Transfer

1.

The Purchaser acknowledges this Contract is subject to the Vendor completing a prior Contract for the purchase of the Property by no later than the Settlement Date, failing which, the Vendor may terminate this Contract by notice in writing to the Purchaser. If the Contract is terminated, the Deposit will be refunded to the Purchaser.

2.

The Vendor will cause to be delivered to the Purchaser at Settlement, an executed prior stamped transfer capable of immediate registration, free from other than notified Encumbrances in favour of the Vendor, which prior transfer will enable the Vendor to become registered as proprietor of the Property.

3.

The Vendor undertakes to answer at the Vendor's expense any requisitions which may be issued by Landuse Victoria in relation to the prior transfer and supporting documents.

4.

The Vendor shall be responsible for the payment of registration fees on the prior stamped transfer which fees will be an adjustment at Settlement.

Prior Stamped Transfer

1.

The Purchaser acknowledges that the Vendor is not the registered owner of the Property at the time the parties enter into this Contract.

2.

The Vendor will cause to be delivered to the Purchaser at Settlement, an executed prior stamped transfer capable of immediate registration, free from other than notified Encumbrances in favour of the Vendor, which prior transfer will enable the Vendor to become registered as proprietor of the Property.

3.

The Vendor undertakes to answer at the Vendor's expense any requisitions which may be issued by Landuse Victoria in relation to the prior transfer and supporting documents.

4.

The Vendor shall be responsible for the payment of registration fees on the prior stamped transfer which fees will be an adjustment at Settlement.

Purchaser's Early Possession

The parties agree early vacant possession of the property shall be given to the Purchaser <<Enter Number of Days Here>> days prior to the date of Settlement subject to the following provisions.

1.

Possession will not be given unless or until the Purchaser confirms:

 

(a)

where this Contract is subject to property inspections it is satisfied with all inspections.

 

(b)

it has completed and is satisfied with all searches with respect to the Property and will make no claim or objection with respect to the results of such searches.

 

(c)

where the contract is subject to finance, finance has been approved.

2.

Such possession shall not give rise to a tenancy (unless otherwise agreed) but is a licence only.

3.

The Purchaser accepts the Property in the condition it is in at the date of possession.

4.

The Purchaser must maintain and not alter the Property, fair wear and tear accepted.

5.

The Purchaser must not part with possession of the Property prior to Settlement.

6.

Occupation of the Property shall be at the Purchaser’s risk.

7.

The Purchaser indemnifies the Vendor against any loss or damage the Vendor may incur arising from the Purchaser’s early occupancy of the Property.

8.

The Purchaser will insure the Property for risks as specified by the Vendor (including property for full replacement value and public liability), in a sum and on terms approved by the Vendor, in both parties’ names, and will provide suitable evidence of such insurance to the Vendor.

Purchaser's Possession at Settlement

1.

The parties acknowledge and confirm the property is currently tenanted as set out in Item 12 of the Particulars of Sale.

2.

This Contract is subject to and conditional upon the tenancy described in Item 12 of the Particulars of Sale being terminated prior to Settlement and vacant possession of the property being given to the Purchaser on Settlement.

Purchaser to be Satisfied with Terms of Easement

1.

The Purchaser confirms the Property is subject to the easement referred to in the section 32 Vendor’s Statement.

2.

This Contract is subject to and conditional upon the Purchaser making such enquiries as the Purchaser deems necessary to establish the effect of the easement.

3.

The Purchaser must by 05:00pm on a day which is <<Enter Number of Days Here>> days from the date of this Contract, give notice to the Vendor advising acceptance of the easement or termination of the Contract.

4.

The Purchaser may waive the benefit of this Clause at anytime.

5.

If notice is not given in accordance with Clause 3 of this Special Condition, the Buyer agrees and acknowledges they will be deemed to be satisfied with the easement.

Sale of Purchaser's Property (Existing Contract)

1.

The Purchaser having entered into a contract dated the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>> (the Sale Contract) for the sale of its property at <<Enter Property Details Here>> this Contract is subject to and conditional upon:

 

(a)

the Sale Contract becoming unconditional as to finance, building and pest inspections and any special conditions on or before the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>>; and

 

(b)

the Sale Contract settling on or before the Settlement Date.

2.

The Clauses of this Special Condition are inserted for the benefit of the Purchaser. The Purchaser may waive the benefit of the Clauses of this Special Condition at any time by notice to the Vendor given on or before the Settlement Date.

3.

The Purchaser must cause notice to be given to the Vendor once the Sale Contract becomes unconditional in accordance with Clause 1(a) of this Special Condition without delay.

4.

If either Clause 1(a) or 1(b) of this Special Condition are not satisfied by the dates set out therein, the Purchaser must notify the Vendor in which case either party may by notice terminate this Contract and the deposit must be refunded to the Purchaser.

Sale of Purchaser's Property (No Existing Contract)

1.

This Contract is subject to and conditional upon the Purchaser entering into a Contract (Sale Contract) for the sale of its property situated at <<Enter Address Details Here>>:

 

(a)

on or before the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>>;

 

(b)

such Sale Contract becoming unconditional before the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>>; and

 

(c)

the Sale Contract settling on or before the Settlement Date.

2.

If any of Clauses 1(a), 1(b) and 1(c) of this Special Condition are not satisfied by the due date the Purchaser may by notice terminate this Contract and the deposit must be refunded to the Purchaser.

Subject to Approval by Solicitor or Designated Person

1.

This Contract is conditional upon the Purchaser obtaining approval from its solicitor or <<Enter an Alternative Designated Person Here (provide sufficient details to identify such person)>> of the Contract Terms and Conditions. The Purchaser must advise the Vendor, before 05:00pm within 3 days of the date of this Contract with respect to approval or non-approval of this Contract.

2.

Where approval is not obtained the Purchaser must forthwith advise the Vendor in writing that the contract is at an end and all money paid by way of deposit or otherwise must be immediately refunded to the Purchaser.

3.

Should the Purchaser not notify the Vendor in accordance with the provision of Clause 1 of this Special Condition the Vendor may, by notice, terminate this Contract.

Subject to Satisfactory Soil Test

1.

This Contract is subject to and conditional upon the Purchaser causing a soil test to be carried out on the land by a qualified soil surveyor of the Purchaser's choice. Such survey is to be carried out within <<Enter Number of Days Here>> days from the date of this Contract.

2.

The results of such survey are to be to the sole satisfaction of the Purchaser. If the Purchaser is not satisfied this sale will, at the Purchaser's option, be at an end.

3.

The Purchaser must by 05:00pm on the first Business Day after from receipt of the soil test result, notify the Vendor in writing whether the Purchaser is satisfied or the contract is ended.

4.

If the contract is ended, all monies paid by way of deposit or otherwise must be immediately refunded to the Purchaser.

5.

The Vendor will provide such reasonable access to the land as the Purchaser and its surveyor may require to facilitate the carrying out of the survey.

6.

The Purchaser will cause all reasonable care to be used in the carrying out of the survey and will rectify any damage occasioned thereby.

7.

If notice is not given in accordance with Clause 3 of this Special Condition, the Buyer agrees and acknowledges they will be deemed to be satisfied with the results of the soil test.

Sunset Clause - Existing Settlement Date (see Termination of Prior Contract Clause)

1.

The parties agree, if the Vendor receives an offer to purchase the property, in the form of a written contract (‘Alternative Contract’) that is on terms more favourable to the Vendor than this Contract, then the Vendor must forthwith provide to the Purchaser's Solicitor a copy of the Alternative Contract.

2.

Should the Purchaser, within <<Enter Number of Days Here>> Business Days of provision of the Alternative Contract as provided in Clause 1 of this Special Condition hereof, not notify the Vendor's Solicitor in writing that this Contract is unconditional in all regards, the Vendor may terminate this Contract by notice in writing to the Purchaser.

3.

If this Contract is terminated under Clause 2 of this Special Condition, all monies paid by way of deposit or otherwise must be immediately refunded to the Purchaser.

4.

Where the Purchaser notifies the Vendor in accordance with Clause 2 of this Special Condition that this Contract is unconditional, Settlement will take place on the Settlement Date as originally set out in Item 11 of the Item Schedule.

Sunset Clause - New Settlement Date (see Termination of Prior Contract Clause)

1.

The parties agree, if the Vendor receives an offer to purchase the property, in the form of a written contract (‘Alternative Contract’) that is on terms more favourable to the Vendor than this Contract, then the Vendor must forthwith provide to the Purchaser's Solicitor a copy of the Alternative Contract.

2.

Should the Purchaser, within <<Enter Number of Days Here>> Business Days of provision of the Alternative Contract as provided in Clause 1 of this Special Condition, not notify the Vendor's Solicitor in writing that this Contract is unconditional in all regards, the Vendor may terminate this Contract by notice in writing to the Purchaser.

3.

If this Contract is terminated under Clause 2 of this Special Condition, all monies paid by way of deposit or otherwise must be immediately refunded to the Purchaser.

4.

Where the Purchaser notifies the Vendor in accordance with Clause 2 of this Special Condition that this Contract is unconditional, Settlement will take place <<Enter Number of Days Here>> days from receipt by the Purchaser of such written notification.

Termination of Prior Contract (see Sunset Clause)

1.

The Purchaser acknowledges that the Vendor is currently a party to a binding and enforceable contract for the sale of the Property with <<Insert Name of the Prior Purchaser Here>> ('the Prior Contract').

2.

The Prior Contract contains a condition allowing the Vendor to terminate the Prior Contract if the Purchaser in the Prior Contract does not make that contract unconditional upon receiving notice that the Vendor has entered into another contract on more favourable terms than the Prior Contract. (the 'Sunset Clause').

3.

The Vendor must invoke the provisions of the Sunset Clause forthwith on the execution of this Contract.

4.

This Contract is subject to the valid termination of the Prior Contract on or by the <<Enter Termination Date Here>> ('the Prior Contract Termination Date').

5.

If the Prior Contract is not terminated by the Prior Contract Termination Date, either party may terminate this Contract by notice in writing to the other, in which case this Contract will be at an end and all monies paid by way of deposit or otherwise must be immediately refunded to the Purchaser.

Vendor to Carry Out Building Work Prior to Settlement (Funds Retained)

1.

This Contract is subject to and conditional upon the Vendor, prior to Settlement and at its own expense, carrying out the works to the Property set out in Annexure A (Vendor's Works) in a proper and workmanlike manner in accordance, where applicable, with the requirements of the Building Act 1993 and the relevant Building Code of Australia.

2.

If the Vendor does not complete the Vendor's Works before settlement, then on giving notice at or before Settlement specifying the Vendor's Works are not completed, the Purchaser may:

 

(a)

claim monetary compensation for the Vendor's failure to complete the Vendor's Works; or

 

(b)

undertake the work after Settlement and then claim from the Vendor the cost of carrying out the Vendor's Works.

3.

As security for the Purchaser carrying out the Vendor's Works, on giving notice as required by Clause 2 of this Special Condition hereof, the Purchaser's Solicitor is authorised on Settlement to retain in its trust account the sum of $<<Insert Amount of the Anticipated Costs of Carrying Out All of the Works Here>> from the Balance Purchase Price payable on Settlement.

4.

Any dispute with respect to the carrying out or completion of the Vendor's works will be determined by a builder or licensed contractor nominated by the parties. Provided however, where the Parties are unable to agree on the appointment of a builder or licensed contractor, either party may apply to the President for the time being of the Victorian Law Society to nominate a builder or licenced contractor. The person appointed will, in making the determination, act as an expert and not as an arbitrator and their determination will be final and binding on both parties. The cost of the determination will be borne by either or both of the Parties (and if by both of the Parties, in the proportion between them) as the person making the determination decides.

5.

Where funds have been retained as security, the Purchaser's solicitor is authorised to deal with those funds in accordance with the decision of the expert or as otherwise agreed between the parties.

Vendor to Carry Out Building Work Prior to Settlement (No Funds Retained)

1.

This Contract is subject to and conditional upon the Vendor, prior to Settlement and at its own expense, carrying out the works to the Property set out in Annexure A (Vendor's Works) in a proper and workmanlike manner in accordance, where applicable, with the requirements of the Building Act 1993 and the relevant Building Code of Australia.

2.

If the Vendor does not complete the Vendor's Works before settlement, then on giving notice at or before Settlement specifying the Vendor's Works are not completed, the Purchaser may:

 

(a)

claim monetary compensation for the Vendors failure to complete the Vendor's Works; or

 

(b)

undertake the work after Settlement and then claim from the Vendor the cost of carrying out the Vendor's Works.

3.

Any such claim does not entitle the Purchaser to delay Settlement or withhold any of the purchase monies.

4.

Any dispute with respect to the carrying out or completion of the Vendor's works will be determined by a builder or licensed contractor nominated by the parties. Provided however, where the Parties are unable to agree on the appointment of a builder or licensed contractor, either party may apply to the President for the time being of the Victorian Law Society to nominate a builder or licenced contractor. The person so appointed will in making their determination act as an expert and not as an arbitrator and their determination will be final and binding on both parties.  The cost of the determination will be borne by either or both of the Parties (and if by both of the Parties, in the proportion between them) as the person making the determination decides.

Vendor's Possession After Settlement (No Rental Charged)

Notwithstanding the provisions of General Condition 13.1(b)(ii) of this contract:

1.

The Purchaser and Vendor agree the Vendor may remain in occupation of the property after Settlement for a period ending no later than 05:00pm on the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>>.

2.

The Vendor must vacate the property no later than the time and date referred to in Clause 1 of this Special Condition. The Vendor's right of occupancy ceases on that date

3.

The Vendor's occupancy of the Property is under a license to the Vendor and does not give rise to the relationship of Landlord and Tenant.

4.

The Vendor will occupy the Property free of payment of rent.

5.

The Vendor will occupy the Property at its own risk and will be responsible for maintenance of the Property and insurance of the Property in joint names to the satisfaction of the Purchaser.

6.

The Vendor will remain liable for all outgoings with respect to the Property up until the Property is vacated and insofar as they are ascertainable, such outgoings may be adjusted at Settlement.

Vendor's Possession After Settlement (Rental Charged)

Notwithstanding the provisions of General Condition 13.1(b)(ii) of this contract:

1.

The Purchaser and Vendor agree the Vendor may remain in occupation of the property after Settlement for a period ending no later than 5pm on the <<Enter the Day of the Month Here>> day of <<Enter the Month Here>>, 20<<Enter the Year Here>>.

2.

The Vendor must vacate the property no later than the time and date referred to in Clause 1 of this Special Condition. The Vendors right of occupancy ceases on that date.

3.

The Vendor shall, while remaining in occupation of the Property, pay a rental of $<<Enter Amount Here>> per week which shall form an outgoings adjustment at Settlement.

4.

The Vendor will occupy the Property at its own risk and will be responsible for maintenance of the Property and insurance of the Property in joint names to the satisfaction of the Purchaser.

Water Tank

The Purchaser acknowledges and assumes the obligations and duties as Owner for the benefit of the Local Government in whose district the property is situated with respect to any domestic Rain Water Tank installed on the property and indemnifies the Local Government against any claim which may arise with regard to the use or installation of the Rain Water Tank and the water contained therein.

 

21 Jan 2019

Electronic Conveyancing

In accordance with the Electronic Conveyancing (Adoption of National Law) Act 2013 (VIC) Settlement and Lodgment will be by e-conveyance in accordance with the Electronic Conveyancing National Law and the attached Schedule 1 - Special Condition (Electronic Conveyancing) will apply.