Forums / Getting Technical / Legal & Accounting / Just settled on new property, and now neighbour is building a second story which blocks sea view…….legal recourse?

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  • Profile photo of lifeXlifeX
    Member
    @lifex
    Join Date: 2004
    Post Count: 651

    I got caught out, and was just wondering what your thoughts are on this…

    Just settled on new property (unit in a block of 6), and now another unit owner has started construction of a second story which blocks view, and likely impacts value of our purchase.

    Was completely unaware of this, until we realised the workers were actually erecting this in front of our eyes..

    There was nothing in the sect. 32 about a neighbours building permit being recently approved by council (1 month prior to our contract of sale date)…
          ….I naively thought there may have been a duty of disclosure requirement. 

    The vendor would have known and yet said nothing…
         …and you can't really blame them for this.

    The Agent may have known, but said nothing…
        …and why would they?

    The conveyancer did not pick this up….
          …and I don't think there would be many conveyancers that would actually check if there were council permits pending on other prioperties nearby …..dare I say none??

    I am kicking myself a bit as nothing I can do now, and will include a check on this in my due diligence from now on.

    How often do you guys check for any nearby building/development when buying or do you expect your conveyancer to do this ? (they don't)

    Profile photo of Scott No MatesScott No Mates
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    @scott-no-mates
    Join Date: 2005
    Post Count: 3,840

    if there was a da submitted, then it was probably on display at council & on their website – so no excuses for you not doing due diligence. You may still be able to lodge an objection with the land & environment court but it depends on the date of approval.

    Views are not protected under law.

    Profile photo of Matt_ArnoldMatt_Arnold
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    @matt_arnold
    Join Date: 2006
    Post Count: 142
    lifeX wrote:
    The Agent may have known, but said nothing…
        …and why would they?

    If the agent knew, and said nothing, then it is a breach of thier knowledge of material fact…

    Profile photo of Scott No MatesScott No Mates
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    @scott-no-mates
    Join Date: 2005
    Post Count: 3,840

    A little bit of research goes a long way. I have found sites which were 'clear'. Some additional digging found that there was a proposed rail corridor directly in front of this property, albeit 50 m below ground – so that benign bit of bush at the front of the block may one day be a major railway although far enough below ground not to cause a nuisance. If I wish to sell at some later date (post development), I will just make sure that either there is no election planned or talk of public transport initiatives around the time of listing. Do I need to disclose it? It is not on my block & the information is readily available in a waterfilled & crocodile infested basement of some government planning department.

    Profile photo of Matt_ArnoldMatt_Arnold
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    @matt_arnold
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    Post Count: 142
    Scott No Mates wrote:
    Do I need to disclose it? It is not on my block & the information is readily available in a waterfilled & crocodile infested basement of some government planning department.

    Hi Scott

    Ok, so i am not saying that i am a real estate law expert by any stretch…
     
    I did however do my certification course in NSW for Real Estate (5 day course) a couple months back.

    This scenario did come up…   the basic advice given by the teacher was that if the vendor / real estate agent knows of any planned development, major works etc that could affect the value of the property it has to be declared to the potential purchaser.

    The teacher also made it pretty clear that if a vendor / agent withholds information, then that can be grounds for contract termination etc…

    Profile photo of TerrywTerryw
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    @terryw
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    misleading and deceptive conduct perhaps?

    Terryw | Structuring Lawyers / Loan Structuring Pty Ltd
    http://propertytaxbook.com.au/
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    Lawyer, Mortgage Broker and Tax Advisor (Aust wide) http://propertytaxbook.com.au/

    Profile photo of lifeXlifeX
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    @lifex
    Join Date: 2004
    Post Count: 651

    SNM,

    I agree due diligence would have covered me, so this is now on my list.

    I am not convinced that views aren’t a legal issue, I know of a few council and building regs that clearly define and protect views of existing properties, especially in new development estates.

    Views are easily quantified as a dollar value, every valuation has an amount included specifically for “ocean views”. I’d suggest that this could be up to 40% of the property value.

    Terry, Matt,
    Cheers for the suggestions, wonder if these would hold up in a lawsuit….

    I can wear this one on the chin, but I was really just wondering how many others think that the Sect. 32 disclosure or your own solicitor would pick up nearby pending developments….. as I did…

    Thanks again for all comments.

    Profile photo of Scott No MatesScott No Mates
    Participant
    @scott-no-mates
    Join Date: 2005
    Post Count: 3,840
    Matt_Arnold wrote:
    Hi Scott

    Ok, so i am not saying that i am a real estate law expert by any stretch…
     
    I did however do my certification course in NSW for Real Estate (5 day course) a couple months back.

    This scenario did come up…   the basic advice given by the teacher was that if the vendor / real estate agent knows of any planned development, major works etc that could affect the value of the property it has to be declared to the potential purchaser.

    The teacher also made it pretty clear that if a vendor / agent withholds information, then that can be grounds for contract termination etc…

    Proving that the agent knew is difficult but the vendor not disclosing may be a little easier if the council has undertaken neighbour notification (but this would only apply to those directly adjacent the property).

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