A young couple put in a tender for a property, conditional only on finance approval.  Their lawyer searched the title to the property and advised them that there was an easement on the title which recorded a shared right of way (driveway) to the property with the owners next door.

The easement recorded that they were liable to contribute towards maintenance of that driveway.  The driveway was in very bad condition, and they hadn’t realised this was partly their responsibility.  Because it was a tender, and they had no title condition, they were stuck with this.

Be aware that conditions in the Agreement for Sale and Purchase by Tender and the Agreement for Sale and Purchase by Auction are different to a standard Agreement for Sale and Purchase.

One of the main differences is that the Agreement for Sale and Purchase by Tender and by Auction both state that the purchaser is deemed to have accepted the title to a property, unlike a normal Agreement for Sale and Purchase which allows the purchaser the ability to ‘requisition’ (raise issues with) the title if there are any legal problems with it.

So prior to signing an Agreement for Sale and Purchase by Tender, or before going to Auction, make sure you have completed all your due diligence such as having a solicitor review the property’s title or (in the case of a tender) include a title condition in the Agreement.