Hi there. In Western Australia, the ‘offer and acceptance’ process is used to buy and sell most properties. The offer to buy a property is made using a Contract for Sale of Land (or Strata Title by Offer and Acceptance form) and the General Conditions. Both the seller and buyer can negotiate special conditions attaching to the sale and add them as extra clauses in the offer documents. Any special conditions must be precisely worded to avoid any confusion or future disputes. The parties should specify what needs to be done, by who, by what date and what will happen if the special condition is not fulfilled. Expert assistance is recommended to ensure any special conditions are binding and effective.

From what you have described, it appears that the seller wants to attach a special condition that the sale is subject to the seller receiving approval for their loan to be transferred to a new property (this is known as loan portability). The seller is probably wanting to align the sale of their existing property and the purchase of a new property. As a buyer, you should be aware that the seller’s approval may be delayed (or even denied) or there may be other complications in the seller organising their new property purchase.

The law does not specify a fixed time limit on a special condition such as this. However, as the buyer, you are free to negotiate a time limit on the seller obtaining approval to transfer their loan. You would need to add the specific details of the special condition into the offer documents (e.g. precisely what approval is needed, time limit, consequences if not obtained, etc). You can draft the clause such that, if the seller fails to obtain approval within the set period, the sale does not proceed.

Suggested way forward

You are free to negotiate with the seller any special conditions you want to apply to the purchase of the property. However, you should first speak to a conveyancer or property lawyer who can draft the appropriate wording for the contract to ensure your risk exposure is minimised. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.