Special Conditions in Property Contracts of Sale: What NSW Buyers Can Miss

Intro

Most property contracts in NSW follow a standard format. But the real legal risk often lies in the extras—special conditions added by the seller’s lawyer.

These custom clauses may look routine, but they can override standard terms, limit your rights, or shift risk to you. And because they’re buried in the fine print, most buyers never notice them—until it’s too late.

What Are Special Conditions in Contracts of Sale?

Special conditions are additional clauses inserted into the contract for sale. They’re not part of the standard terms set out by NSW Fair Trading—they’re written specifically for the deal.

Sellers (or their lawyers) use them to:

• Change default timeframes or obligations

• Exclude certain buyer protections

• Limit liability or disclosures

• Address specific issues with the property

They’re entirely legal—but whether they’re fair depends on the wording.

Special conditions are often the most heavily edited part of the contract—and the most overlooked.

Common Special Conditions That Raise Red Flags

These are some of the more common examples I review in NSW residential and commercial contracts:

• “No Cooling-Off Period” - Removes your 5-business-day right to withdraw. Often used for auction or pre-auction sales, but still risky if you haven’t finished your checks.

• One-Sided Sunset Clauses - Push settlement deadlines far into the future (especially off-the-plan), with little recourse if things stall or the developer changes plans.

• “Acknowledgement” of Planning or Development Risks - May say the buyer accepts current zoning or development restrictions—even if the property was marketed as having future potential.

• “As Is” or Full Responsibility Clauses - Shift responsibility for title issues, encroachments, compliance, or physical defects onto the buyer—regardless of what’s disclosed.

• Overly Broad Definitions or Disclaimers - Vague clauses that allow the seller to avoid warranties, delay access, or make changes without consequence.

Why Buyers Miss Them

• They’re usually written in dense, technical language

• They’re often included toward the back of the contract

• The buyer’s focus is often on the price and key dates—not legal fine print

• Agents may not explain or even understand what they mean

Buyers often assume that “standard contract” means standard protections—but special conditions can completely alter the deal.

How to Protect Yourself

Here’s what to do before you sign:

• Have the contract reviewed by a property lawyer - They’ll identify risk-heavy clauses and explain what they mean for your deal.

• Don’t rely on sales brochures or verbal promises - If something matters—development potential, access, timing—it needs to be in the contract.

• Question one-sided or vague language - Especially where it shifts responsibility to you or waives seller obligations.

• Negotiate amendments if needed - Most sellers are willing to clarify or reword clauses—if you ask before exchange.

Why It Matters

Once you exchange contracts in NSW, you're legally committed. There’s no room to renegotiate or walk away (unless the contract allows it). Special conditions often sound harmless—but they can have significant financial and legal consequences if things don’t go to plan.

Need Help?

I provide fixed-fee contract reviews for NSW buyers—highlighting key risks, explaining special conditions in plain English, and giving you clarity before you commit.