Settlement and seller/builder does not have title available

[laam]

Hi all, first post, lurked for awhile as I'll be looking at purchasing my first home some time this year fingers crossed but this one isn't for me.

I have a question on behalf of my partners mother. She has purchased a new house due to settle on the 17th of Feb, she has been informed two days ago that the property has not been titled (think this is the correct terminology) as the builder/seller hasn't organised it yet. (Is with the title office apparently)

She has organised the settlement of her current house for the same day. While she can stay with family while it settles this is still a major inconvenience to all involved and we are wondering what our options are here.

I am not familiar with the law in this area but this seems a pretty blatant breach of contract and she should be eligible for compensation from the seller.

Her conveyancer doesn't seem to see this as as big of an issue as we all do!

Any advice?


Thanks

Liam

 

[alexlee]

I am not familiar with the law in this area but this seems a pretty blatant breach of contract and she should be eligible for compensation from the seller.

You say it's a breach of contract. So what does the contract say about what happens if the seller doesn't / can't settle by the due date?

 

[RPI]

it should be an off the plan contract which would have very specific terms relating to this. Would be better answered by a vic property lawyer but happy to have a look and informal chat if you want to flick contract to me.

 

[Terry_w]

Hi all, first post, lurked for awhile as I'll be looking at purchasing my first home some time this year fingers crossed but this one isn't for me.

I have a question on behalf of my partners mother. She has purchased a new house due to settle on the 17th of Feb, she has been informed two days ago that the property has not been titled (think this is the correct terminology) as the builder/seller hasn't organised it yet. (Is with the title office apparently)

She has organised the settlement of her current house for the same day. While she can stay with family while it settles this is still a major inconvenience to all involved and we are wondering what our options are here.

I am not familiar with the law in this area but this seems a pretty blatant breach of contract and she should be eligible for compensation from the seller.

Her conveyancer doesn't seem to see this as as big of an issue as we all do!

Any advice?


Thanks

Liam

Not a good idea to enter into an off the plan contract without knowing the risks such as this. No doubt there will be a clause allowing for delays.

Also not a good idea to move out of your home assuming settlement will occur. This has happens all the time and results in having to move twice - major hassle.

Advice - have a good read of the contract and then seek legal advice.

 

[impala67]

You will need specific paid for legal advice on this one.

 

[laam]

Wow quick replies, thanks guys. I havent seen then contract so I'm only going on what I've been told that there is nothing in there about this eventuality. Will get a copy tomorrow to look at and confirm then consider further options.

She relied on the sale of the current property to fund this one, hence the overlapping dates.

Thanks

 

[Aaron_C]

Well if it's an OTP contract she will just have to wait it out as they can basically settle whenever they want prior to the sunset clause.

 

[LexCon]

When you have a look at the contract look for the Particulars of Sale pages. Once you have them look for settlement. If there is a date entered see if something similar to this is written next to or under it "unless the land is a lot in an unregistered subdivision in which case settlement will be due on the above date or 14 days after the vendor gives notice to the purchaser of registration of the plan, whichever is the later."
Even if this is the case your mother could move into the property under a licence agreement until the plan is registered. This is very common, the arrangement can be with or without paying rent, whatever you negotiate.

Under the circumstances you described this maybe the best course of action. I am happy for you to call me, free of charge at my office 9670 0143.

 

[laam]

Thanks again for the replies, after checking through the contract Aaron_C and LexCon have got it. I was only working with second hand information so not a breach of contract, but seems she has been misled by a few people involved. Anyway we are currently trying to obtain the licence agreement for zero rent as suggested above. Any suggestions for dealing with a builder who is now much harder to get a hold of?

Thanks again

Will keep your offer in mind Trevor. Cheers