Every Special Condition You Can Add to a Victorian Contract of Sale

If you're buying property in Victoria, the printed terms of the Contract of Sale are just the starting point. The real negotiation happens in the special conditions — those extra clauses typed or attached to the back of the standard form contract. They can protect you from costly surprises, give you exit rights if something goes wrong, or (if you're not careful) hand all the power to the vendor.

This guide covers every special condition you're likely to encounter as a Victorian buyer, with plain-English explanations and example wording you can actually use.

What Are Special Conditions?

A Victorian Contract of Sale is based on a standard form — typically the REIV/Law Institute of Victoria standard contract. It comes with a set of "general conditions" that cover the basics: deposit, settlement, title, and default.

Special conditions are additional clauses added to the contract that override or sit alongside those general conditions. They're usually found on a separate page at the end of the contract, and they take priority over anything in the general conditions if there's a conflict.

Think of general conditions as the factory settings. Special conditions are your custom configuration. Under Victorian law, parties are free to negotiate whatever terms they like, provided they don't breach the Sale of Land Act 1962 (Vic) or other applicable legislation.

Here's the thing most buyers don't realise: the agent's "standard" special conditions aren't standard at all. They're usually drafted by the vendor's solicitor or conveyancer, and they almost always favour the vendor. As a buyer, you have every right to negotiate changes, remove conditions you don't like, and add your own.

Essential Special Conditions for Buyers

These are the conditions that most buyers should consider including. They give you breathing room and, critically, they give you the right to walk away if certain things don't go your way.

1. Subject to Finance

This is the single most important condition for any buyer who needs a loan. A subject to finance clause makes the contract conditional on you obtaining formal loan approval by a specified date.

Without it, you're legally committed to buying the property whether or not the bank says yes. If you can't settle, you'll lose your deposit and potentially face a damages claim from the vendor.

What to include:

• The loan amount you need
• The lender (or "a financier of the purchaser's choice")
• The deadline for approval (typically 14 to 21 days)
• The right to terminate and get your full deposit back if finance is refused

Example wording:

This contract is subject to and conditional upon the purchaser obtaining unconditional written approval of a loan of not less than $[amount] from a financier of the purchaser's choice, on terms satisfactory to the purchaser, by 5:00pm on [date]. If approval is not obtained by this date, the purchaser may terminate this contract by written notice to the vendor, and the deposit shall be refunded in full.

Watch out for: Clauses that require you to prove you applied "diligently" for finance, or that let the vendor extend the finance date unilaterally. Also be cautious of clauses that say the condition is "satisfied" unless you actively give notice of non-approval — this can catch buyers off guard.

2. Subject to Building and Pest Inspection

A building and pest inspection condition gives you the right to have the property professionally inspected and, if the report reveals significant issues, to either renegotiate or walk away.

In Victoria, unlike some other states, there's no automatic statutory right to a building inspection period on a private sale. If you want one, you need to put it in the contract.

Example wording:

This contract is subject to and conditional upon the purchaser obtaining, at the purchaser's expense, a building and pest inspection report on the property, and being satisfied in the purchaser's absolute discretion with the results of that report, by 5:00pm on [date]. If the purchaser is not satisfied, the purchaser may terminate this contract by written notice to the vendor, and the deposit shall be refunded in full.

Key tip: The phrase "in the purchaser's absolute discretion" is critical. Without it, a vendor could argue that the defects found weren't serious enough to justify terminating. With it, you have complete control over whether the report is acceptable to you.

3. Subject to Sale of Existing Property

If you need to sell your current home before you can afford to buy, this clause makes the purchase conditional on that sale going through.

Vendors generally dislike this condition because it introduces uncertainty — they're effectively waiting on a third party's transaction. But in quieter markets, it's common and reasonable.

Example wording:

This contract is subject to and conditional upon the purchaser entering into an unconditional contract for the sale of the property at [address of existing property] by 5:00pm on [date], and that sale being settled. If the purchaser's property is not sold by the specified date, the purchaser may terminate this contract by written notice to the vendor, and the deposit shall be refunded in full.

Negotiation tip: Vendors may counter with a "kick-out clause" (also called a "escape clause" or "48-hour clause"), which lets them keep marketing the property and give you 48 hours to go unconditional if another buyer appears. This is a reasonable compromise — just make sure you're comfortable with the pressure it creates.

4. Due Diligence Period

A due diligence clause gives you a set number of days to investigate everything about the property — planning overlays, title restrictions, zoning, contamination, easements, neighbourhood issues, anything. It's broader than a building inspection clause because it covers all aspects of the purchase, not just the physical structure.

This is particularly valuable if you're buying in an area with complex planning overlays or if the property has features you need to verify (flood zones, bushfire overlays, heritage restrictions).

Example wording:

This contract is subject to and conditional upon the purchaser completing due diligence investigations in respect of the property, to the purchaser's satisfaction in the purchaser's absolute discretion, by 5:00pm on [date]. Such investigations may include but are not limited to searches, enquiries, inspections, surveys, and reports in relation to the property. If the purchaser is not satisfied, the purchaser may terminate this contract by written notice to the vendor, and the deposit shall be refunded in full.

Pro tip: A broad due diligence clause can sometimes replace separate finance, building, and inspection clauses. But many conveyancers prefer to keep them separate so there's no ambiguity about which right you're exercising.

5. Early Access and Pre-Settlement Inspection

You have a right under the general conditions of the standard REIV contract to inspect the property before settlement (typically in the 7 days beforehand). But a special condition can expand this — for example, allowing earlier access for tradesperson quotes, or guaranteeing the property will be in the same condition as at the date of sale.

Example wording:

The purchaser (and the purchaser's agents, including tradespeople) shall be entitled to access the property on reasonable notice for the purpose of obtaining quotes, taking measurements, and conducting inspections at any time from the date of this contract to the date of settlement. The vendor shall ensure the property is delivered at settlement in substantially the same condition as at the date of sale, fair wear and tear excepted.

Why this matters: Without this, you could arrive at settlement to find the vendor has ripped out fixtures, damaged walls during their move-out, or left the property full of rubbish. An explicit condition gives you legal standing to demand rectification or compensation.

Property-Specific Conditions

Depending on the type of property you're buying, you may need tailored conditions to address specific risks.

6. Pool and Spa Compliance

Under the Building Act 1993 (Vic) and the Building Regulations 2018 (Vic), all swimming pools and spas capable of holding 300mm or more of water must be registered and have a current compliance certificate for their safety barrier.

When selling a property with a pool or spa, the vendor must provide either a current certificate of compliance or a certificate of non-compliance. But having a non-compliance certificate doesn't stop the sale — it just means the buyer inherits the problem.

Example wording:

The vendor warrants that the swimming pool/spa on the property has a current certificate of barrier compliance issued under the Building Regulations 2018 (Vic). If a current certificate cannot be provided prior to settlement, the vendor shall, at the vendor's cost, carry out all works necessary to obtain such a certificate prior to settlement, or the purchaser may terminate this contract and the deposit shall be refunded in full.

7. Heritage Overlay Acknowledgment

If the property sits within a Heritage Overlay under the local council's planning scheme, there are significant restrictions on what you can do with it — demolition, extensions, exterior alterations, and sometimes even paint colours require planning permits.

Example wording:

The purchaser acknowledges that the property is affected by Heritage Overlay [HO number] under the [Council name] Planning Scheme. The vendor warrants that all works carried out to the property by the vendor have been undertaken with appropriate permits and approvals, and that no notices or orders have been issued by the responsible authority in relation to the heritage status of the property.

Why include it: If the vendor has done unapproved renovations on a heritage property, you could inherit enforcement action from the council. This clause shifts that risk back where it belongs.

8. Owner-Builder Warranty

If the property was built or renovated by an owner-builder (rather than a licensed builder), different warranty rules apply. Under the Domestic Building Contracts Act 1995 (Vic), an owner-builder who sells within 6 years and 6 months of completion must provide the buyer with a written notice and, for work over $16,000, hold owner-builder insurance.

Example wording:

The vendor warrants that all building work carried out by the vendor as an owner-builder has been completed in accordance with all applicable building permits and regulations. The vendor shall provide to the purchaser prior to settlement: (a) copies of all building permits and certificates of final inspection; (b) a certificate of owner-builder insurance or warranty insurance as required under the Domestic Building Contracts Act 1995 (Vic); and (c) details of all contractors and tradespeople engaged for the works.

9. Tenant Vacancy Before Settlement

If you're buying a property that currently has a tenant and you intend to live in it, you need a condition ensuring the property is delivered vacant at settlement. Under the Residential Tenancies Act 1997 (Vic), the vendor must give the tenant proper notice, and you don't want settlement delayed because the tenant hasn't left.

Example wording:

The vendor warrants that the property will be delivered with vacant possession at settlement. The vendor shall ensure that any existing lease, tenancy agreement, or occupancy arrangement is lawfully terminated and all occupants have vacated the property prior to the settlement date. If vacant possession cannot be provided by the settlement date, the purchaser may defer settlement until vacant possession is available or terminate this contract, and the deposit shall be refunded in full.

Practical note: Under Victorian tenancy law, a notice to vacate for a property sold to a purchaser who intends to live in it must be at least 60 days. Factor this into your settlement period.

10. Planning Permit Conditions

If you're buying with the intent to develop, subdivide, or even just put in a new driveway or crossover, you should check whether any existing planning permits come with conditions — and whether those conditions have been met.

Example wording:

The vendor warrants that all planning permits issued in respect of the property have been complied with in full, including all conditions of those permits. The vendor shall provide copies of all current planning permits and endorsed plans to the purchaser within 7 days of the date of this contract. If any permit conditions remain outstanding, the purchaser may terminate this contract by written notice to the vendor, and the deposit shall be refunded in full.

11. Body Corporate / Owners Corporation Inspection

If you're buying an apartment, unit, or townhouse in a strata scheme, you need to review the Owners Corporation (formerly Body Corporate) records. These reveal the financial health of the building, any pending litigation, planned special levies, and the state of the common property.

Under the Owners Corporations Act 2006 (Vic), a buyer can obtain an Owners Corporation certificate, but a special condition gives you the right to terminate if you're unhappy with what you find.

Example wording:

This contract is subject to and conditional upon the purchaser obtaining and being satisfied, in the purchaser's absolute discretion, with an inspection of the Owners Corporation records, including but not limited to the financial statements, minutes of meetings, insurance policies, maintenance fund, and any pending or threatened litigation. If the purchaser is not satisfied by 5:00pm on [date], the purchaser may terminate this contract by written notice to the vendor, and the deposit shall be refunded in full.

Key things to look for: Underfunded maintenance reserves, upcoming special levies, building defect claims, excessive management fees, and any rules or restrictions that affect your intended use.

Conditions to Watch Out For (Vendor-Favourable)

Not all special conditions are there to help you. Vendors (through their solicitors) regularly include conditions that shift risk and advantage to their side. Here are the ones to scrutinise.

12. Early Deposit Release

Normally in Victoria, the deposit is held in a trust account until settlement. An early deposit release clause allows the vendor to access the deposit before settlement — usually immediately or after the cooling-off period expires.

This is risky because if the vendor can't settle (for example, they go bankrupt or can't deliver clear title), getting your deposit back becomes a debt recovery exercise rather than a simple trust account refund.

What to watch for: Under Section 27 of the Sale of Land Act 1962, there are restrictions on when a vendor can use deposit money. But the standard contract may include a clause purporting to release the deposit early. You're within your rights to strike this clause out or negotiate that the deposit stays in trust until settlement.

13. Excessive Default Interest and Penalty Fees

The general conditions of the standard REIV contract specify a default interest rate (currently pegged to a rate above the standard variable rate) if settlement is delayed by the defaulting party. Some vendors add special conditions that impose higher interest rates or additional penalty fees.

What to watch for: Rates above 10-12% per annum should raise a red flag. Also watch for flat penalty fees on top of interest, or clauses that start charging default interest from an unreasonably early trigger point.

Your response: Ask your conveyancer to compare the default provisions against the general conditions. If the special conditions are materially harsher, negotiate them back to the standard terms or remove them entirely.

14. "As Is" / No Warranty Clauses

An "as is, where is" clause means you're buying the property in its current condition with no warranties from the vendor about its state. This can cover structural issues, compliance problems, contamination, and more.

While vendors have some disclosure obligations under the Sale of Land Act 1962 (particularly through the Section 32 Vendor Statement), an "as is" clause attempts to limit their liability for anything not specifically disclosed.

What to watch for: Broad "as is" clauses combined with limited disclosures in the Section 32. If a vendor insists on this clause, it's even more important to conduct thorough inspections and due diligence before going unconditional.

Your right: Note that Section 32 disclosure obligations can't be contracted out of. Even with an "as is" clause, if the vendor fails to disclose something they're required to disclose, you may have remedies under the Sale of Land Act.

15. Settlement Date at Vendor's Discretion

Some contracts include conditions that let the vendor choose or extend the settlement date at their discretion. This can leave you in limbo — unable to plan your move, coordinate your own sale, or lock in a loan rate.

What to watch for: Phrases like "settlement shall occur on a date to be nominated by the vendor, being not less than [X] days' notice" or clauses that allow the vendor to extend settlement without your consent.

Your response: Push for a fixed settlement date agreed by both parties. If the vendor needs flexibility, negotiate a defined window (for example, "settlement shall occur between 60 and 90 days from the contract date, with the exact date to be agreed by both parties in writing").

How to Negotiate Special Conditions

Negotiating special conditions is not just for lawyers. Here are practical steps any buyer can take.

Get advice before you sign, not after. In Victoria, if you're buying at auction, the contract is legally binding when the hammer falls — there's no cooling-off period and no opportunity to add conditions after the fact. For private sales, you have a three business day cooling-off period under Section 31 of the Sale of Land Act 1962, but relying on cooling off to fix contract issues is a last resort, not a strategy. If you exercise cooling off, you'll forfeit $100 or 0.2% of the purchase price (whichever is greater).

Don't accept the agent's first draft as final. Real estate agents present contracts as if they're set in stone. They're not. Every special condition is negotiable. Cross out what you don't like, add what you need, and have your conveyancer or solicitor review the lot.

Be specific with dates and amounts. Vague conditions are harder to enforce. Instead of "subject to finance," specify the lender, the loan amount, and the exact deadline. Instead of "a reasonable time for inspection," specify a date and time.

Use "absolute discretion" in your favour. For subjective conditions like building inspections and due diligence, always include the phrase "to the purchaser's satisfaction in the purchaser's absolute discretion." This means you don't have to justify your decision to withdraw.

Understand the difference between conditions and warranties. A condition gives you the right to terminate if it's not met. A warranty is a promise by one party that something is true. Both are valuable, but they work differently. If a warranty turns out to be false, your remedy is usually damages (compensation), not termination.

Put everything in writing. Verbal promises from agents or vendors are essentially worthless in a property transaction. If the vendor says "we'll fix the fence before settlement," it needs to be in the contract as a special condition. If it's not written down, it doesn't exist.

Key Takeaways

• Special conditions override the general conditions of the standard REIV contract and are your most powerful negotiation tool as a buyer.
• Always include a subject to finance clause if you need a loan. Without it, you're on the hook regardless of bank approval.
• Building and pest inspections aren't automatic in Victoria — you need a special condition to give yourself this right.
• Property-specific conditions (pool compliance, heritage overlays, Owners Corporation records, owner-builder warranties) can save you from inheriting expensive problems.
• Read the vendor's special conditions carefully. Early deposit release, "as is" clauses, excessive penalties, and discretionary settlement dates all favour the vendor at your expense.
• Get your contract reviewed before signing, not after. For auction purchases, this means having your solicitor or conveyancer review the contract days before auction day.
• Everything must be in writing. If it's not a special condition in the contract, it's not enforceable.