I bought an off the plan property 2 years ago and it is going to be settled in early Sept 11. I found the followings issues during the inspection:
1. Internal store room is smaller and not in the original place as per the plan.
2. Bath tub and shower room are in the opposite position to the plan. So that the show room glass door is opened against the basin. Too easy to break and it is a potential harzard for the tenants.
My solicitor has raised these issues to the vendor but have not got any response. However, he said that most likely nothing will happen as the vendor can argue that concil approved the design and it is impossible/too late to change. But I am not happy at all!!! It seems my solicitor will not help more. Settlement is happening in 1 week's time. I am told I will still need to settle on time because there is 3 months wanrrenty for the builder to fix flaws on the pre settlement inspection.
Now it is urgent. I dont know what to do. I would like to ask for suggestions and helps for the people experienced similar issues.
What should I do?
LiDerekMember@derekJoin Date: 2004Post Count: 3,544
OTP contracts often have a little clause which allows for 'minor' adjustments to plans, rooms sizes etc often also with other weasle clauses in the vendor's favour.
The fine print will determine what is reasonable and what is not.
Was the solicitor recommended by the vendor or are they your choice? This may have some bearing on the level of 'enthusiasm' shown by the solicitor.
Either way I would send your solicitor an email (written proof) outlining your concerns and requesting they take proper action as your representative.
1. It does matter if council approved the design, your contract states something different and needs to be fixed before you take delivery.
2. It IS possible to change, it is NOT impossible/too late to change, especially the bathroom door. They just do not want to spend the money to fix THEIR mistake. Mistakes, honest or not need to be fixed. They caused the changes, they pay to have it fixed.
3. 'minor' adjustments to plans, rooms sizes etc should have been advised to you ASAP before completion.
4. Write to your lawyer to get him to order the items fixed, making sure that you advise that settlement will not be completed until they have been fixed and/or a reduction in price to compensate you for the reduced room sizes and additional legal costs.
5. Fire your lawyer if he fails to follow your instructions then engage a new lawyer and advise him to complete item 4 above.
Thanks Derek and Colin,
Will I be in trouble if delay in settlement due to no response or no actions taken by the builder. also called for another inspection for the fixes. but i was told i will only be allowed to check the fixes on the settlement day. i am not confident they will fix the flaws before settlement.
It is my first investment and seems i am in a bad situation.
They are trying to bluff you into settlement before fixing the matters. Once they have their money just see how long it takes to fix (aka = never). You are in the drivers seat, they fix it BEFORE settlement or no settlement.
A pre-selelment inspection is usually arranged at least a week prior to settlement not on the same day…They are banking on you feeling obliged to settle before they are fixed as you will have already arranged for the bank and lawyers for that day.
Get your lawyer to advise the other party (in writing and by registered mail of course) to:
1. make good the contract conditions or to have them repaired/fixed at least 7 days prior to settlement AND
2. to arrange for a pre-settlement inspection (take lots of pics and video) no later than 5 clear working days prior to settlement AND
3. have him advise the other side that settlement will NOT take place unless and until the items have:
A) been fixed AND
adequate compensation has been given to you to cover the 'reduced value of the property due to the mistakes/altered finish AND
C) for additional legal costs.
While you may not refuse settlement in the end due to 'minor' (as yet to be defined) you are entitled to be compensated for the unauthorised changes that have reduced the value of the property.
They want 100% of their money on settlement day; do you think they are will to risk that instead of changing a bathroom door and/or to flip you a couple of thousand dollars due to the changes….along with all the delay in time and money to try and force you to settle? I think not.
Be polite but FIRM but fair in stating the end state that you need them to complete prior to settlement, then stick to your guns. If they see weakness they will roll over you.
Firstly, read the contract and see what it says about variations. If it possible you have agreed to allow minor variations. If it is not in the contract then you could be able to use this as a way to terminate the agreement.
If you don't settle on time then the vendor could issue a notice to complete and then they can terminate the contract after 14 days usually and then you could lose your deposit.
What state is the property in?
The property is in NSW.
I have not checked. the contract is at my solicitor's and i will ask him to check tomorrow.
I have asked my solicitor to communicator with the developer to fix 2 issues before settlement. or reduce the purchase price by 8,000-10,000. However, no reply as of now from the vendor. i am stressed as the settlement is 1 week away. My solicitor is not willing to argue for me….
I just reread you post and I don't like your chances of getting any compensation or getting it fixed. The bath is in place so that would be impossible to move, you may be able to get them to put some sort of stopper on the door though. Store room will be unable to be changed too. I guess this hasn't resulted in a change to the size of the apartment.
I am a solicitor, so if you want a second opinion you could email me a copy of the contract.
I had a similar problem with a builder who put a wall in the wrong place. I just let him get away with it and he was appreciative and helped me out with other things.
There is no such thing as 'can not' or 'impossible'. Its just a matter of cost; the cost of the builder that has caused the building to be constructed not according to the agreed contract.veseliMember@veseliJoin Date: 2011Post Count: 33
I would check DA approved plans to make sure that builder has made those changes, it could be that you are looking in Agents plans, or old set of plans which could of been amended.
If the builder has made unauthorized changes, than you could argue it, but i would just request extra works to be done in order to accept it, gates, screens, footpaths or something.
Also i would get Inspector to do a defect list on the whole house, and once all fixed than i would sign the paper.
You will be surprised how many defects is out there, regardless who the builder is.DerekMember@derekJoin Date: 2004Post Count: 3,544
Take up Terry's offer. He will tell you as it is without any false hopes or misleading promises. Terry will also give you some balanced and legal opinion which you can use to work though the matters at hand.
This may seem a strange comment but here goes.
While you may feel wronged and hard done by at the moment because of the changes etc to the plan you also need to consider the emotional and financial costs involved in pursuing this matter to resolution. The builder/developer's pockets are much deeper than yours and they can throw everything, including the kitchen sink at you for delayed settlement.
Sometimes the 'cost' of winning, or simply trying to win is so expensive it is not worth it.
Utlimately the contract and annexures etc will determine whether or not the builder has complied with the contract. This is where the fineprint is so critical.
Be annoyed but don't let this annoyance become an anger that undermines you and your journey.
Thanks all for the suggestioons and helps!
I could not agree more "Sometimes the 'cost' of winning, or simply trying to win is so expensive it is not worth it."
I will check with my solicitor again and Terryw for a second opinion.
I will update the thread with how things going
The valuor confirmed the unit size and also adviced that the floor plan we have maybe a bit different from the strata plan as the strata plan is done after built up.
For the internal store room: he pointed out that on the floor plan there is only a open storage space, no wall no door. Now the store room is built with a door. Other units are the same. Not too sure how's about other owners, not noticed or do not want to bother too much? I am not expecting the builder's response on this point.
For the shower room, my bottom line is to have a stopper added on the floor preventing it from hitting the basin.
I am not a hard person, I am cool if i get attentions and reasonable explainations. I am not going to put more efforts on it. But one thing for sure : I will not use this solicitor any more.
Experences are very expensive. no wonder people do not want to take the risk to buy off the plan. good lesson.