Fourth Edition 2012 (5) PARTICULARS AND CONDITIONS OF SALE OF REAL ESTATE BY AUCTION This form is approved by the Real Estate Institute of New Zealand Incorporated and by Auckland District Law Society Incorporated. AUCTION DETAILS Auctioneer: Unlimited Potential Ltd Place of Auction: On Site Date and Time of Auction: Friday 26th May 2017 at 11.00am Licensed Agent acting for Vendor: Unlimited Potential Ltd, Licensed Agent REAA 2008 Vendor: Walton 18 Limited The vendor is registered under the GST Act in respect of the transaction evidenced by this agreement and/or will be so registered at settlement: Yes/No PARTICULARS OF PROPERTY Address: B4 (Lot 10) 23-25 Towai Street Saint Heliers Auckland Estate: FEE SIMPLE LEASEHOLD STRATUM IN FREEHOLD STRATUM IN LEASEHOLD CROSSLEASE (FEE SIMPLE) CROSSLEASE (LEASEHOLD) (if none is deleted fee simple) Legal Description: Area (more or less): Lot/Flat/Unit: DP: Unique Identifier or CT: Title to Issue Chattels: The following chattels are included in the sale (strike out or add as applicable): Stove Fixed Floor Coverings Blinds Curtains Light Fittings Hob and Oven, Drapes, Rangehood, Dishwasher, Waste Disposal Unit, Alarm, Central Vacuum, Auto Garge Door and x2 remotes, Heated Towel Rail x2, Heat Pump x2 TENANCIES (if any) Name of tenant: Vacant Possession Bond: Rent: Term: Right of Renewal: CONDITIONS OF SALE 1.1 The property and the chattels included in the sale are sold on these Particulars and Conditions of Sale, the General Terms of Sale and any Further Terms of Sale. 1.2 GST will be payable in accordance with the statement of the purchase price in the Memorandum of Contract. 1.3 The GST date is: 1.4 The settlement date is: Wednesday 28th June 2017, Subject to Further Terms of Sale in Schedule 3 1.5 The interest rate for late settlement is 14.0 % p.a. CONDUCT OF AUCTION 2.1 The property is offered for sale subject to a reserve price and, subject to the reserve price being met, the highest bidder whose bid is accepted by the auctioneer shall be the purchaser. 2.2 The auctioneer may nominate the sum by which the bidding can be raised. 2.3 The auctioneer may refuse any bid. 2.4 The auctioneer or the licensed real estate agent acting for the vendor in respect of the sale may submit a bid on behalf of any person. The auctioneer shall identify a person so acting before the commencement of bidding. 2.5 The vendor may bid personally, or by a representative, or through the auctioneer, provided that the bid is less than the reserve price. The auctioneer shall identify each vendor bid as it is made. 2.6 The vendor may withdraw the property at any time before it has been sold and without declaring the reserve price. 2.7 If a dispute arises concerning any bid, the auctioneer may determine the dispute or re-offer the property at the last undisputed bid. 2.8 The purchaser shall immediately on the completion of the auction: (a) Sign the Memorandum of Contract failing which the auctioneer may sign on behalf of the purchaser, (b) Pay to the vendor's licensed real estate agent the deposit being 10% of the purchase price unless otherwise agreed; and (c) Complete its GST information in Schedule 1, if applicable. Release date: 22 August 2016
in accordance with Clause 3 Schedule 3
FURTHER TERMS OF SALE Fourth Edition 2012 (5) Statement of Passing Over Information This information has been supplied by the Vendor or the Vendor s agents. Accordingly Unlimited Potential Limited is merely passing over the information as supplied to us by the Vendor or the Vendor s agents. We cannot guarantee its accuracy and reliability as we have not checked, audited, or reviewed the information and all intending purchasers are advised to conduct their own due diligence investigation into the same. To the maximum extent permitted by law Unlimited Potential Limited do not accept any responsibility to any person for the accuracy of the information herein. 21.0 Title 21.1 The Purchaser acknowledges that they have been advised that any interests noted on the search copy of the title to the property, should be referred to a solicitor for independent advice, prior to bidding on or buying the property. 22.0 Weather Tightness 22.1 The Purchaser acknowledges and accepts that neither the agent nor the licensee hold themselves out to have any expertise as to the weather tightness of the dwelling or any related issues with respect to same, nor have the agent and/or licensee made any representation(s) in relation to such matters. The Purchaser acknowledges that in entering into this agreement, they have undertaken their own independent enquiries and/or investigations and have based their decision in reliance solely on their own judgement and those enquiries. 22.2 The Purchaser further acknowledges, that they have been advised by Unlimited Potential Limited to obtain their own reports in relation to this property and that they have been advised to seek their own independent advice (whether legal or otherwise) with respect to those reports. Refer to Further Terms of Sale attached as Schedule 3
SCHEDULE 3 FURTHER TERMS OF SALE Contents PART I - DEFINITIONS... 2 1 Further Definitions and Interpretation... 2 PART II PREAMBLE AND DEPOSIT... 4 2 Preamble... 4 3 Deposit... 5 PART III COMPLETION... 5 4 Effect of this Part... 5 5 Settlement & Possession... 5 6 Assessments & Adjustment of Outgoings... 5 PART IV THE BUILDING WORKS... 5 7 Effect of this Part... 5 8 Construction... 6 9 Warranties... 6 10 Maintenance of the Building... 6 PART V THE SUBDIVISION... 6 11 Effect of this Part... 6 12 The Subdivision... 7 13 Purchaser not to Frustrate Consent Application... 7 14 Variations to Proposed Subdivision Plan... 7 PART VI TITLE AND PROPERTY RIGHTS... 8 15 Effect of this Part... 8 16 Title to Issue... 8 17 No Requisitions or Withholding... 8 18 Easements, Land Covenants and Property Rights... 8 19 Form of Plans, Easements, Covenants, Rules etc... 8 20 Variations to Proposed Easements, Covenants, Rules etc... 9 PART VII GENERAL... 9 21 Exercise of Powers by Vendor... 9 22 No Caveat... 9 23 Restraint on Sale of Property... 9 24 Documents Available for Inspection... 9 25 No Representations... 9 26 Agreed Lowest Price... 10 27 GST... 10 28 Facsimile or Email Agreement... 10 29 Incorporation of Particulars and Conditions of Sale... 10 SCHEDULE 4... 11 SUBDIVISION PLANS... 11 7575147_1
PART I - DEFINITIONS 1 Further Definitions and Interpretation 1.1 Definitions - In this Agreement the following terms will have the following meanings: Agreement Architect Building Building Works means this agreement including the attached general terms of sale, the further terms of sale and all schedules, annexures and other attachments (as varied or amended from time to time); means the architect(s) (or any one of them) for the Building Works appointed by the Vendor from time to time; means the residential apartments which are to be constructed on the Land; means construction of the Building and all associated site works; Certificate of Practical means the certificate issued when the Building is at the stage of Completion Practical Completion; Cleared Funds Consents Land means an electronic transfer of funds made in accordance with the most recent edition of the Property Transactions and E- Dealing Practice Guidelines prepared by the Property Law Section of the New Zealand Law Society or a bank cheque issued by a bank registered under the Reserve Bank of New Zealand Act 1989; means any statutory permits, consents (including resource and building consents) and approvals as may be required by the Vendor from any Relevant Authority to complete the Building and the Subdivision; means the fee simple land comprised in: (a) (b) Lot 4 Deposited Plan 8875 Identifier NA345/262 (North Auckland Registry); and Lot 1 Deposited Plan 493145 Identifier 718505 (North Auckland Registry) LINZ Plans Possession Date Practical Completion means Land Information New Zealand, a government department, accountable through its Chief Executive to the Minister for Land Information; means the Subdivision Plans and the Vendor s other plans relating to the Building Works, or such of them as may be relevant in context used in this Agreement; the Settlement Date; means the stage when Building, in the opinion of the Architect acting in a professional capacity, is complete so that it is capable of being used by the Purchaser for the purposes for which it was intended without material inconvenience notwithstanding that there may be items of a comparatively minor nature that require finishing, alteration or remedial action and notwithstanding the fact that any other building or buildings or the Building Works may not have reached Practical Completion at that time. 7575147_1 2
the Property Purchaser Relevant Authority Settlement Date the estate and interest in the Land hereby purchased as identified on the front page of this Agreement or as marked on any plan or drawing attached together with the residential dwelling thereon, which will be subject to such rights, encumbrances and interests shown on the certificates of title (identifiers) for the Land and such further interests as may be granted or reserved by the Vendor in accordance with this Agreement; means the purchaser named on the front page of this Agreement and its permitted successors, transferees and assigns; means any government, local or statutory or non-statutory authority or body which has jurisdiction over the Land and/or the Property under the Resource Management Act 1991 and the Building Act 2004; means the later of: (a) (b) (c) 5 Working Days after the Purchaser (or the Purchaser s solicitor) receives the Certificate of Practical Completion issued by the Architect; or 5 Working Days after a search copy (as defined by section 172A of the Land Transfer Act 1952) of the certificate(s) of title to the Property is available; or 5 Working Days after the Purchaser (or the Purchaser s solicitor) receives a code compliance certificate issued under the Building Act 2004 in respect of the Building or that part of the building in which the Property is located; or (d) 28 June 2017. Settlement Stakeholder Subdivision Subdivision Plans Vendor Working day means actual settlement whether or not it occurs on the Settlement Date; means Duncan Cotterill, Solicitors, Auckland. means the subdivision of the titles on the Land (identifiers NA345/262 and 718505) into new fee simple titles in accordance with the Plans; the plans to be prepared by the Vendor which set out the way in which the Subdivision is to occur as provided in this Agreement, such plans being substantially in the form as attached to this Agreement as Schedule 4 (but subject to variation by the Vendor as permitted by this Agreement); means the Vendor named on the front page of this Agreement and its successors, transferees and assigns; means any day of the week other than: (i) (ii) Saturday, Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign s Birthday, and Labour Day, and a day in the period commencing on the 24th day of December in any year and ending on the 5th day of January in the following year, both days inclusive; 7575147_1 3
(iii) the day observed as Auckland Anniversary Day. 1.2 Interpretation - In this document where the context permits: 1.2.1 Any provision requiring performance of two or more persons will bind those persons jointly and severally. 1.2.2 Section, clause and other headings are for convenience only and will not affect the interpretation of this Agreement. 1.2.3 Reference to including or includes are not words of limitation. 1.2.4 One gender includes the other gender. 1.2.5 Singular will include plural and vice versa. 1.2.6 Where any term defined in this Agreement takes a different form for reasons of grammar, the different form has a corresponding meaning. 1.2.7 References to persons will include references to individuals, companies, corporations, partnerships, firms, joint ventures, associations, trusts, organisations, governmental and other regulatory bodies or authorities and other entities, in each case whether having separate legal personality. 1.2.8 Reference to a party will include that party s executors, administrators, successors and permitted assigns. 1.2.9 References to a statute include references to regulations, orders or notices made under or pursuant to such statute and references to a statute or regulation include references to all amendments to that statute or regulation whether by subsequent statute or otherwise and a statute or regulation passed in substitution for the statute or regulation referred to, or incorporating any of its provisions. 1.2.10 Reference to any document includes reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented, or replaced from time to time. 1.2.11 Defined terms in this clause are applicable to those words used in any schedule or annexure attached to and forming part of this Agreement, unless the meaning is clearly different from the context in which it is used. 1.2.12 Any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done. 1.2.13 The terms written and in writing include any means of reproducing words, figures or symbols in a tangible and visible form. PART II PREAMBLE AND DEPOSIT 2 Preamble 2.1 Title to issue - This Agreement is for the sale and purchase of a title resulting from the Building Works and the Subdivision, as identified on the front page of this Agreement. 2.2 Work-in-progress - Before settlement and possession can occur, the Vendor must obtain Consents from the Relevant Authorities and obtain a new fee simple title for the underlying land and subdivide the Land in the manner outlined in the Subdivision Plans. 7575147_1 4
2.3 Timing The Vendor will use its reasonable endeavours to complete the work in progress as quickly as possible (subject to delays beyond its control) and obtain a separate certificate of title to the Property. 3 Deposit 3.1 10% Deposit - Unless otherwise specified on the front page of this Agreement, the Purchaser will pay a deposit of 10% of the Purchase Price on signing this Agreement. 3.2 3.3 3.4 Stakeholder - The deposit must be paid in Cleared Funds to the Vendor s solicitor as Stakeholder, to be held in an interest bearing trust account with a registered bank, in the name of the Stakeholder. Deposit to be paid to vendor on settlement - The deposit will be paid to the Vendor on Settlement. Interest to be paid to vendor on settlement Any interest accrued on the deposit, by way of placement in the Stakeholder s interest bearing trust account, will be paid to the Vendor on Settlement. PART III COMPLETION 4 Effect of this Part 4.1 Effect of this part This part of the Agreement deals with the Settlement and Possession Dates. 5 Settlement & Possession 5.1 Settlement occurs when title available - The Purchaser will pay the balance of the purchase price in Cleared Funds on the Settlement Date. 5.2 Possession date - The Purchaser will be entitled to take possession of the Property at the time of Settlement. 6 Assessments & Adjustment of Outgoings 6.1 Purchaser responsible from settlement date - Subject to the provisions of this clause, the Purchaser will be responsible for payment of all outgoings (including rates and utility charges) associated with the Property from the Possession Date. 6.2 6.3 Assessments - Until separate assessments of outgoings are issued or available in respect of the Property, the Vendor may assess and claim from the Purchaser at settlement, a fair and reasonable proportion of those outgoings levied or paid against the Land from the Possession Date. In such case, no regard is to be had to the actual separate assessment if and when it issues. Vendor s statement to be final - The Vendor s statement as to the apportionment and adjustment of outgoings at Settlement will, except in the case of manifest error, be final. PART IV THE BUILDING WORKS 7 Effect of this Part 7.1 Effect of this part This part of the Agreement deals with the Vendor s obligation to obtain the issue of a Code Compliance Certificate for the Building. 7575147_1 5
8 Construction 8.1 Delay - The Vendor will not be responsible for any delays beyond its reasonable control in securing Consents or for any delays due to weather conditions, strikes, lock-outs, accidents, business failure of contractors, unavailability of any finish, product or system. 8.2 Code compliance certificate - As soon as practicable after completion of the Building, the Vendor will obtain and provide to the Purchaser, copies of the following: 8.2.1 a code compliance certificate for the Building, or that part of the Building in which the Property is located; and 8.2.2 where applicable, the initial compliance schedule for the Building and its services (if any, the original of which will be held by the Body Corporate). The Purchaser will co-operate as required in obtaining those certificates and schedules where they relate in whole or in part to the Property. 9 Warranties 9.1 Assignment of Warranties - The Vendor will as soon as practicable after the Settlement Date, assign to the Purchaser the benefit of all warranties and guarantees as may be available and assignable relating to the supply of services to, and materials and equipment incorporated or installed in the Building. If any warranties or guarantees are incapable of assignment, the Vendor will hold such warranties or guarantees on trust and at the direction of and for the benefit of the Purchaser. 9.2 Master Build Guarantee the Vendor will as soon as practicable after the Settlement Date, take all reasonable steps to assign to the Purchaser the benefit of any Master Build Guarantee obtained for the Property. The Purchaser acknowledges that transfer of such guarantee is subject to the approval of Master Build Services (in its discretion), and the Purchaser will have no claim against the Vendor if such guarantee is not transferred. 10 Maintenance of the Building 10.1 Maintenance period - There will be a maintenance period for the Property of three (3) months from the earlier of: 10.1.1 the Settlement Date; or 10.1.2 the date possession of the Property is given and taken. 10.2 10.3 Vendor obligations - The Vendor will rectify and make good at its cost during or within a reasonable time from expiry of the maintenance period any defects or other faults in the Property due to faulty materials or workmanship notified by the Purchaser or its agent in writing to the Vendor prior to expiry of the maintenance period (time being of the essence). In the case of a dispute, the matter will be determined by the Architect who will act as an expert and his/her decision will be final and binding on the parties. Exceptions - The Vendor will not be liable to repair any damage caused to the Property by the Purchaser, its agents or invitees, or any damage arising out of fair wear and tear of the Property. PART V THE SUBDIVISION 11 Effect of this Part 7575147_1 6
11.1 Effect of this part This part of the Agreement deals with the Vendor s obligation to subdivide the Land and to obtain the issue of a separate certificate of title (identifier) to the Property; and the Vendor s right to make changes to the Subdivision Plans and other documents before Settlement. 12 The Subdivision 12.1 Vendor s general obligation - The Vendor will at its cost, complete the Subdivision generally in accordance with the Subdivision Plans. 12.2 Vendor s specific obligation - The Vendor will, with all due speed and diligence (but subject to delays beyond its control): 12.2.1 Obtain consents - do all things reasonably necessary to obtain from the Relevant Authority a resource consent or consents to carry out the Subdivision in accordance with the Subdivision Plans; 12.2.2 Prepare plans arrange for a survey or surveys of the Land as may be necessary to prepare the Subdivision Plans and showing any easements and other property interest as may be required; 12.2.3 Register deposited plan - register the necessary plans with LINZ to give effect to the Subdivision Plans; 12.2.4 Register easements and land covenants prepare and register the easements, land covenants, encumbrances and other property interests as permitted by this Agreement; and 12.2.5 Obtain a certificate of title - obtain a separate certificate of title (identifier) to the Property. 13 Purchaser not to Frustrate Consent Application 13.1 No opposition - The Purchaser will not oppose, object to, frustrate or take any action, or encourage or cause others to oppose, object to, frustrate or take any action, that might in any way prevent or hinder the Vendor from progressing or affecting the Subdivision and/or the Consents needed to generally give effect to the Subdivision. This clause applies (without limitation) to any application for Consents, Environment Court applications or other necessary Consents process. 14 Variations to Proposed Subdivision Plan 14.1 Measurements subject to checking - All measurements and areas shown on the Subdivision Plans are or may be approximations and are subject to any variation which may be found necessary upon checking by the Relevant Authority, the Vendor s surveyor, and LINZ. 14.2 Vendor may alter proposed subdivision plans - The Vendor reserves the right to make alterations to the Subdivision Plans which are required to satisfy any Consent condition or which are otherwise necessary or desirable, in the Vendor s opinion, including the right to: 14.2.1 alter the layout and/or design of the Subdivision; 14.2.2 alter the number of titles on the Subdivision Plan (or the number and mix of principal and accessory units issuing from any unit plan therein); 14.2.3 allocate, reallocate and/or relocate existing carparking spaces. 7575147_1 7
PART VI TITLE AND PROPERTY RIGHTS 15 Effect of this Part 15.1 Effect of this clause This part of the Agreement deals with the Vendor s title to the Property and the right of the Vendor under this Agreement to register interests against that title and to make changes to disclosed plans and other documents before Settlement. 16 Title to Issue 16.1 Acknowledgement as to title The Purchaser acknowledges that a separate title has not yet issued for the Property. The title for the Property will result from the Subdivision Plan and will be a freehold stratum estate as identified on the front page of this Agreement, subject to the easements, land covenants, encumbrances, consent notices and other property interests and memorials created by virtue of this agreement. 17 No Requisitions or Withholding 17.1 No requisitions Subject to the provisions of this Agreement, the Purchaser is deemed to have accepted the Vendor s title. The Purchaser will not raise any objections to, or request requisitions on the title or claim compensation as a result of any easements, land covenants, encumbrances, consent notices and other property interests and memorials appearing on the title to the Property or the Land. 17.2 No withholding - The Purchaser will not withhold the balance of the purchase price (or any part of it) or demand any retention on Settlement arising out of the exercise by the Vendor of a right under this Agreement, including, but not limited to the creation and registration of any land covenants, easements, consent notices, encumbrances, memorials and/or other property rights or restrictions affecting or relating to the Property or the Land. 18 Easements, Land Covenants and Property Rights 18.1 Vendor may create easements, land covenants and other property rights - The Vendor reserves the right to create, grant or register against the title to the Property (and the Land), easements, land covenants, encumbrances, consent notices and other property interests which are implicit in or required to satisfy the conditions of any Consent or are otherwise necessary or desirable in the Vendor s opinion, including: 18.1.1 right of way easements in gross; 18.1.2 right of way easements to confer pedestrian and vehicular rights of access and egress to and from the Land; 18.1.3 light, air and fire easements; 18.1.4 utility easements to confer rights to convey electricity, communications, gas and water and to discharge and drain water, stormwater and sewerage; 18.1.5 consent notices under the Resource Management Act 1991; 18.1.6 encumbrances in favour of the local authority in relation to services or utilities affecting the Property; 18.1.7 building line restrictions. 19 Form of Plans, Easements, Covenants, Rules etc 19.1 Unspecified documents to be in form determined by Vendor s solicitor - The Plans, easements, land covenants, encumbrances, Operational Rules, body corporate management agreements and other agreements and property interests which may be entered into, created 7575147_1 8
or granted by the Vendor in accordance with this Agreement will be prepared in a form determined by the Vendor s solicitors acting reasonably and in their professional capacity having regard to the nature of the Subdivision. 20 Variations to Proposed Easements, Covenants, Rules etc 20.1 Vendor may amend proposed easements, covenants etc - The Plans, easements, land covenants, encumbrances and other documents creating or reserving property rights released in draft form before or after the signing of this Agreement may be amended by the Vendor at any time where required to satisfy the conditions of any Consent or such amendments are otherwise necessary or desirable in the Vendor s opinion. PART VII GENERAL 21 Exercise of Powers by Vendor 21.1 Reasonable exercise of powers - The Vendor will not unreasonably exercise the rights and powers reserved to it under this Agreement. For the purposes of this clause, the Vendor will not be deemed to have acted unreasonably if such action is reasonably necessary for the completion of the Subdivision or for the good governance and management of the Building Works as a whole. 22 No Caveat 22.1 No Caveat - The Purchaser will not register a caveat against the underlying title to the Land or any part thereof prior to issue of a title or identifier for the Property. If the Purchaser does register such a caveat they will be responsible for all costs incurred by the Vendor in connection therewith including the Vendor s solicitor s costs on a solicitor/client basis, costs of removal and all costs and/or expenses incurred whether directly or indirectly by any consequent delay in the deposit of any plan or the issue of the said title or identifier, and the Purchaser will remove the said caveat forthwith upon being requested to do so by the Vendor. 23 Restraint on Sale of Property 23.1 No transfer or assignment of purchaser s rights - The Purchaser will not assign the benefit of this Agreement or otherwise sell, transfer, mortgage or dispose of any interest in the Property, or any other interest the Purchaser has by virtue of this Agreement, or call for Settlement until the Settlement Date or prior to completing Settlement in accordance with this Agreement. 24 Documents Available for Inspection 24.1 Documents available - The Vendor will arrange for current copies of the documents referred to in this Agreement (if any) to be available for inspection by the Purchaser or their solicitor at reasonable times from the Vendor s solicitor's office. The Purchaser may obtain copies thereof on request and on payment of a reasonable fee. 25 No Representations 25.1 Purchaser relies on own judgement - The Purchaser acknowledges that it has entered into this Agreement in reliance upon its own judgement and not upon any representation made by the Vendor or its servants and agents as to any matter of fact relating in any way to the Subdivision, the Plans or the new title to be issued for the Property. 25.2 Plans and brochures not definitive - The Plans and brochure (if any) showing the concept of the Subdivision have all been prepared prior to commencement of the Subdivision. While every reasonable effort has been made to ensure the information and calculations correctly illustrate the Subdivision, they can only be for guidance and no responsibility will be taken for any non-material differences, errors or omissions which may become apparent during or upon completion of the Subdivision. 7575147_1 9
26 Agreed Lowest Price 26.1 No capitalised interest - The purchase price is the lowest price that the parties would have agreed on for the Property under the rules relating to financial arrangements in the Income Tax Act 2007 and on that basis no income and expenditure arises under those rules. 27 GST 27.1 Vendor registered The Vendor is registered for GST purposes and clause 13 of the General Terms will apply. The purchase price will therefore include GST. 27.2 Purchaser will not request tax invoice - The Purchaser will not request a tax invoice (within the meaning of Section 2 of the Goods & Services Tax Act 1985) from the Vendor prior to Settlement. 28 Facsimile or Email Agreement 28.1 The delivery by any party to the other of a facsimile or emailed copy of this Agreement duly executed will be deemed delivery of the original. Either party may in any Court of law or other proceeding produce, or exhibit such facsimile or emailed copy as if it were an original thereof and no party to this Agreement may object to such copy being produced or exhibited as an original and will be deemed to have waived any law of evidence or other requirement that an original executed document be produced or exhibited as evidence of its existence or its contents. 29 Incorporation of Particulars and Conditions of Sale 29.1 These Further Terms of Sale are hereby incorporated in the attached Particulars and Conditions of Sale of Real Estate by Auction Fourth Edition 2012(5). 29.2 In the event of a conflict between these Further Terms of Sale and the Terms and Conditions of Sale in the attached Particulars and Conditions of Sale of Real Estate by Auction Fourth Edition 2012(5), these Further Terms of Sale will prevail. 7575147_1 10
SCHEDULE 4 SUBDIVISION PLANS 7575147_1 11
Fourth Edition 2012 (5) SCHEDULE 1 (GST Information see clause 16.0) This Schedule must be completed if the vendor has stated on the front page that the vendor is registered under the GST Act in respect of the transaction evidenced by this agreement and/or will be so registered at settlement. Otherwise there is no need to complete it. Section 1 1. The Vendor's registration number (if already registered): 108-760-680 2. Part of the property is being used as a principal place of residence at the date of this agreement. That part is: (e.g. "the main farmhouse" or "the apartment above the shop") Yes/No 3. The purchaser is registered under the GST Act and/or will be so registered at settlement. Yes/No 4. The purchaser intends at settlement to use the property for making taxable supplies. Yes/No If the answer to either or both of question 3 and 4 is "No", go to question 7 5. The purchaser's details are as follows: (a) Full name: (b) Address: (c) Registration number (if already registered): 6. The purchaser intends at settlement to use the property as a principal place of residence by the purchaser or a person associated with the purchaser under section 2A(1)(c) of the GST Act (connected by blood relationship, marriage, civil union, de facto relationship or adoption). Yes/No OR The purchaser intends at settlement to use part of the property as a principal place of residence by the purchaser or a person associated with the purchaser under section 2A(1)(c) of the GST Act. That part is: (e.g. "the main farmhouse" or "the apartment above the shop") Yes/No 7. The purchaser intends to direct the vendor to transfer title to the property to another party ("nominee") Yes/No If the answer to question 7 is "Yes", then please continue. Otherwise, there is no need to complete this Schedule any further. Section 2 8. The nominee is registered under the GST Act and/or is expected by the purchaser to be so registered at settlement. Yes/No 9. The purchaser expects the nominee at settlement to use the property for making taxable supplies. Yes/No If the answer to either or both of questions 7 and 8 is "No", there is no need to complete this Schedule any further. 10. The nominee's details (if known to the purchaser) are as follows: (a) Full name: (b) Address: (c) Registration number (if already registered): 11. The purchaser expects the nominee to intend at settlement to use the property as a principal place of residence by the nominee or a person associated with the nominee under section 2A(1)(c) of the GST Act (connected by blood relationship, marriage, civil union, de facto relationship or adoption). Yes/No OR The purchaser expects the nominee to intend at settlement to use part of the property as a principal place of residence by the purchaser or a person associated with the purchaser under section 2A(1)(c) of the GST Act. That part is: (e.g. "the main farmhouse" or "the apartment above the shop"). Yes/No
Fourth Edition 2012 (5) Date of Memorandum: MEMORANDUM OF CONTRACT At the auction of the property, or prior to, or subsequent to, the auction (delete as applicable), PURCHASER'S NAME: and/or nominee ("the purchaser") became the purchaser of the property by being the highest bidder, or by agreeing with the vendor to purchase the property. The vendor agrees to sell and the purchaser agrees to purchase the property and the chattels included in the sale for the purchase price stated below in accordance with these Particulars and Conditions of Sale, General Terms of Sale and Further Terms of Sale (if any). Purchase price: $ Deposit: $ Plus GST (if any) OR inclusive of GST (if any). If neither is deleted the purchase price includes GST (if any). Acknowledgements Where this agreement relates to the sale of a residential property and this agreement was provided to the parties by a licensed real estate agent, or by a licensee on behalf of the agent, the parties acknowledge that they have been given the guide about the sale of residential property approved by the Real Estate Agents Authority. Where this agreement relates to the sale of a unit title property, the purchaser acknowledges that the purchaser has been provided with a pre-contract disclosure statement under section 146 of the Unit Titles Act 2010. Signature of purchaser(s) or auctioneer: Signature of vendor(s) or auctioneer:
BEFORE BIDDING AT THE AUCTION If you are the successful bidder or you sign this agreement before or after the auction this sale will be legally binding on you. If you are the successful bidder, the auctioneer may sign the Memorandum of Contract on your behalf if you should fail or refuse to do so. It is recommended you seek professional advice before bidding or, if you sign this agreement before or after the auction, before signing. This is especially so if: there are any doubts. property such as a hotel or a farm is being sold. The agreement is designed primarily for the sale of residential and commercial property. the property is vacant land in the process of being subdivided or there is a new unit title or cross lease to be issued. there is any doubt as to the position of the boundaries. you wish to check the weathertightness and soundness of construction of any dwellings or other buildings on the land. You should investigate the status of the property under the Council's District Plan. The property and those around it are affected by zoning and other planning provisions regulating their use and future development. You should investigate whether necessary permits, consents and code compliance certificates have been obtained from the Council where building works have been carried out. This investigation can be assisted by obtaining a Land Information Memorandum(LIM) from the Council. You should check the title to the property because there is no right of objection or requisition. You should compare the title plans against the physical location of existing structures where the property is a unit title or cross lease. Structures or alterations to structures not shown on the plans may result in the title being defective. In the case of a unit title, before you enter into the agreement: the vendor must provide you with a pre-contract disclosure statement under section 146 of the Unit Titles Act 2010; you should check the minutes of the past meetings of the body corporate, enquire whether there are any issues affecting the units and/or the common property, check the body corporate's long term maintenance plan and enquire whether the body corporate has imposed or proposed levies for a long term maintenance fund or any other fund for the maintenance of, or remedial or other work to, the common property. Both parties should ensure the chattels list on the front page is accurate. You should ensure that you understand the GST position, and whether or not GST is payable in addition to the price at which you are bidding. Both parties should seek professional advice regarding the GST treatment of the transaction. This depends upon the GST information supplied by the parties and could change before settlement if that information changes. You should read the Conduct of Auction in clause 2 THE ABOVE NOTES ARE NOT PART OF THIS AGREEMENT AND ARE NOT A COMPLETE LIST OF MATTERS WHICH ARE IMPORTANT IN CONSIDERING THE LEGAL CONSEQUENCES OF ENTERING A BID AT THE AUCTION Fourth Edition 2012 (5) PARTICULARS AND CONDITIONS OF SALE OF REAL ESTATE BY AUCTION This form is copyright to the Real Estate Institute of New Zealand Incorporated and Auckland District Law Society Incorporated DATE: Address Of Property: B4 (Lot 10) 23-25 Towai Street Saint Heliers Auckland VENDOR: Walton 18 Limited Contact Details: VENDOR'S LAWYERS: Firm: Duncan Cotterill Individual Acting: Bruce Patterson Contact Details: PO Box 5326 Auckland 1141 Phone: 09 309 1948 Fax: 09 309 8275 Email: bruce.patterson@duncancotterill.com PURCHASER: Contact Details: PURCHASER'S LAWYERS: Firm: Individual Acting: Contact Details: Auctioneer: Unlimited Potential Ltd Licensed Real Estate Agent Listing Property: Unlimited Potential Limited UP Real Estate Manager: Grant Lynch Salesperson: Greg Gibson (021 940 048) Second Salesperson: Peter Cleave (021 756 246) Contact Details: 2 Dilworth Ave Remuera AUCKLAND 1050 Phone: 09 529 1478 Fax: 09 529 1223 Email: info@uprealestate.co.nz Licensed REAA 2008 MREINZ PROFESSIONAL ADVICE SHOULD BE SOUGHT REGARDING THE EFFECT AND CONSEQUENCES OF BECOMING THE SUCCESSFUL BIDDER AT THE AUCTION.
New Zealand Residential Property Sale and Purchase Agreement Guide This guide has been prepared and approved by the Real Estate Agents Authority
RESIDENTIAL PROPERTY SALE AND PURCHASE AGREEMENTS GUIDE Important things to know: 1. 2. 3. 4. 5. 6. A sale and purchase agreement is a legally binding contract. The real estate agent is working for the seller of the property, but must treat the buyer fairly. You need to understand the difference between a conditional and an unconditional agreement. You can negotiate the conditions you require in a sale and purchase agreement. Make sure you read and understand the sale and purchase agreement before signing it. It is recommended that you get your lawyer to check the sale and purchase agreement before you sign it.
Introduction Buying or selling a home is one of the biggest financial commitments you will ever make. There are several relatively complicated stages to negotiate and there are a number of things to look out for. When you are buying or selling residential property you should always have a written sale and purchase agreement. This is the legal document that forms the contract between the buyer and the seller. This guide provides information about sale and purchase agreements, tells you where you can get more information, what to expect from a real estate agent 1 and what to do if there is a problem. This guide only relates to the sale of residential property. This guide is just that guidance. You should not rely on it for legal advice. It s been prepared by the Real Estate Agents Authority (REAA), a Crown entity established by the Real Estate Agents Act 2008. This is a guide to the sale and purchase agreement that you will be asked to sign if you wish to buy or sell residential property. 1 Real estate agent or agent are general terms that refer to an agent, branch manager or salesperson. www.reaa.govt.nz 0800 for REAA (0800 367 7322) 1
RESIDENTIAL PROPERTY SALE AND PURCHASE AGREEMENTS GUIDE Whether you are a buyer or a seller, the agent must provide you with a copy of this guide before you sign a sale and purchase agreement, and ask you for written acknowledgement that you have received it. If you require more information, you can consult your lawyer. Information is also available on the REAA s website: www.reaa.govt.nz. Why do I need a sale and purchase agreement? A sale and purchase agreement provides certainty to both the buyer and the seller as it sets out in writing all the agreed terms and conditions. It is a legally binding contract. Can I negotiate? The seller and buyer can negotiate, through the agent, on price and conditions until they both reach agreement. Important things to know: You should have a written sale and purchase agreement. Always read the sale and purchase agreement before signing it. Have your lawyer check the sale and purchase agreement before you sign it. Both the buyer and seller can negotiate changes to the price and conditions. A sale and purchase agreement is a legally binding contract. 2
The sale and purchase agreement Your agent will probably use the Auckland District Law Society and Real Estate Institute of New Zealand form (the ADLS form). Your sale and purchase agreement should include the following: The name(s) of the seller(s) and buyer(s). The address of the property. The type of title (freehold, leasehold etc.). The chattels that are to be sold with the property (e.g. whiteware, drapes, television aerial etc.). The price. The rate of interest that the buyer must pay on any overdue payments. Any deposit that the buyer must pay. Any conditions the buyer wants fulfilled before the contract is agreed. The date on which the agreement will become unconditional if there are conditions. The settlement date (the date the buyer pays the remainder of the amount for the property, usually the day when the buyer can move into the property). 3
RESIDENTIAL PROPERTY SALE AND PURCHASE AGREEMENTS GUIDE Conditions in the document The buyer will usually want to have some or all of the following conditions fulfilled before the contract is agreed: Title search this is done by the buyer s lawyer to check who the legal owner of the property is and to see if anyone else has any claim over the property. Finance this refers to the buyer arranging payment, normally a loan, by a specified date. Valuation report normally required by a lender, this report is an estimate of the property s worth on the current market. Land Information Memorandum (LIM) report provided by the local council, this report provides information on things such as rates, building permits and consents, drainage and planning. Building inspection report these help determine how sound the building is and what might need to be repaired. Engineer s report similar to the above but more focused on the section and structure of the property. Sale of another home the buyer may need to sell their home in order to buy another. General or standard clauses A sale and purchase agreement also includes clauses that set out general obligations and conditions. It helps to understand what these mean as you will need to comply with them. Examples may include: Access rights what access the buyer can have to inspect the property before settlement. Default by buyer the buyer may have to compensate the seller e.g. interest payments. Default by the seller the seller may have to compensate the buyer e.g. accommodation costs. Insurance makes sure the property remains insured until the settlement date and outlining what will happen if any damage does occur. Your lawyer will explain these clauses. 4
When does the buyer pay the deposit and the full amount? When the seller and buyer have agreed on all aspects of the sale and purchase agreement, any deposit is usually paid to the real estate agent by the buyer. This money is initially held in the agent s trust account. The agent usually takes their commission from the deposit when the contract becomes unconditional. This is agreed between the seller and the agent as set out in the agency agreement 2. The seller should make sure that the deposit is large enough to cover the agent s commission. The buyer pays the remainder of the amount for the property on the day of settlement, usually through their lawyer. The settlement day is usually the date when the buyer can move into the property. Before the sale and purchase agreement becomes unconditional and if the sale doesn t go ahead because some of the conditions haven t been met, the buyer may be entitled to have the deposit refunded in full. However, once the offer becomes unconditional you won t be able to get your deposit back if you change your mind for any reason. What is the difference between a conditional and an unconditional agreement? Conditional refers to the sale and purchase agreement having a set of conditions that are to be met, such as the buyer s current house being sold, a building inspection being carried out, or finance being secured. Unconditional refers to when all conditions in the sale and purchase agreement have been met and the transaction is ready to proceed to a change of ownership. 2 Refer to the Real Estate Agents Authority s New Zealand Residential Property Agency Agreement Guide. 5
RESIDENTIAL PROPERTY SALE AND PURCHASE AGREEMENTS GUIDE Can I cancel the agreement if I change my mind? You cannot cancel a sale and purchase agreement just because you have had second thoughts about buying or selling the property concerned. In general, once you have signed a sale and purchase agreement and the conditions set out in it have been met, you will have to go ahead with the sale/purchase of the property. What can I expect from an agent? The agent works for and is paid by the seller. The agent must therefore carry out the seller s instructions (as set out in the agency agreement) and act in the interests of the seller. Agents also have clear responsibilities to buyers even though they are representing the seller. When you are buying a property, ask the agent questions. Be specific about what you want to know. All agents are bound by the Code of Professional Conduct and Client Care, issued by the REAA. Under the Code, agents have to deal fairly and honestly with all parties. 6
A copy of the Code of Professional Conduct and Client Care is available from www.reaa.govt.nz or by calling 0800 for REAA (0800 367 7322). What if my agent or someone related to them wants to buy the property? If your agent, or anyone related to them, wants to buy your property, they must get your written consent to do this. More information on this situation can be found in the Conflict of Interest Information Sheet, available from www.reaa.govt.nz or by calling 0800 for REAA (0800 367 7322). It is important to consult your lawyer throughout the buying and selling process. 7
RESIDENTIAL PROPERTY SALE AND PURCHASE AGREEMENTS GUIDE Who pays the agent? Real estate agents in New Zealand work on behalf of sellers and it is the sellers who pay the agents. An agent who is marketing a property on behalf of a seller cannot ask a buyer to pay for their services. The agent is acting for the seller and does not have the same duty to a buyer as they do to the seller. What is a buyers agent? Buyers agents are common in some other countries. They are agents who are employed by buyers to locate properties and sometimes to negotiate purchases on the buyer s behalf. If you employ a buyers agent you should still have a written agency agreement and will have to pay for their services. More information on buyers agents can be found in the Buyers Agent Information Sheet, available from www.reaa.govt.nz or by calling 0800 for REAA (0800 367 7322). 8
What if there s a problem? If you are concerned about the behaviour of an agent, you should discuss any concerns you have with the agent or their manager. Agents are required to have inhouse complaints resolution procedures. If this does not work or if you do not wish to go through this process, you can contact the REAA. The REAA has a number of ways it can help with your concerns. This includes sending the agent a compliance advice letter, arranging alternative dispute resolution or processing the matter as a complaint. When you contact the REAA they will help you identify the best way of dealing with your concern. More information on how the REAA can help you can be found at www.reaa.govt.nz or by calling 0800 for REAA (0800 367 7322). You can get more information from... There are several places you can go for help and advice including: The Real Estate Agents Authority (REAA) at www.reaa.govt.nz or call 0800 for REAA (0800 367 7322). The REAA can provide information and assistance on a wide range of issues and is responsible for dealing with concerns about real estate agents. Your lawyer. Community Law Centres www.communitylaw.org.nz. Citizens Advice Bureau www.cab.org.nz. Ministry of Consumer Affairs www.consumeraffairs.govt.nz. NZ Law Society Property Section www.propertylawyers.org.nz. Consumer Build www.consumerbuild.org.nz. 9
The Real Estate Agents Authority (REAA) was established by the New Zealand government to ensure high professional standards in the real estate industry and to promote increased protection for people who are buying or selling property. Contact us if you need more information or have a problem with an agent. www.reaa.govt.nz info@reaa.govt.nz @reaanz 0800 for REAA (0800 367 7322) or (04) 471 8930 Scan to find out more about buying and selling property. To the best of the Real Estate Agents Authority s knowledge, the information in this guide is accurate at the date shown below. However, the requirements on which this information is based can change at any time and the most up-to-date information is available at www.reaa. govt.nz [Version 1.2 12 February 2014].