Bear with me on this one as it is multi faceted and long winded (apologies)
So the crux of the matter is how do you protect yourself against AP when purchasing at auction?
If my understanding of AP is correct, the person who is at advantage has to do nothing at all but wait for you to try and rightfully claim back what is yours.
For example if I am hypothetically looking at a vacant block of land inner Brisbane for auction, if you were to be successful at auction, all is well until you go to start development. At this time you are likely to get survey done and bingo neighbours fence is 1.2m to your disadvantage. Now all the person at advantage need to do is lodge an AP claim and prevent your development proceeding.
Now I know you will say get the survey done prior to auction, but if my understanding is correct all this will do is make you aware of the fact, it is not until you start development and try to build where you think you can when the person at advantage can take what is on your title if they can prove AP.
If it was through private treaty you maybe able to arrange a clause for due diligence but as most auction contracts are " as is where is" my question is: is it possible to approach the real estate agents to have a clause added to auction contract, and if so what would that clause be to protect yourself from AP; "Vendor guarantees clear title" or "subject to clear title being provided"
Apologies I know some of my concepts and language are probably not up to spec legally but just thinking out loud.
A hypothetical quick measure of existing fence on hypothetical block would indicate discrepancies, and as inner Brisbane has hypothetically likely been the case for several decades.
If my AP understanding is correct, I find it unbelievable that all the power sits with the person at advantage which you will not know until after the event and all they then need to do is prove AP and lodge and you are left with a bag of you know what.
Cheers
So the crux of the matter is how do you protect yourself against AP when purchasing at auction?
If my understanding of AP is correct, the person who is at advantage has to do nothing at all but wait for you to try and rightfully claim back what is yours.
For example if I am hypothetically looking at a vacant block of land inner Brisbane for auction, if you were to be successful at auction, all is well until you go to start development. At this time you are likely to get survey done and bingo neighbours fence is 1.2m to your disadvantage. Now all the person at advantage need to do is lodge an AP claim and prevent your development proceeding.
Now I know you will say get the survey done prior to auction, but if my understanding is correct all this will do is make you aware of the fact, it is not until you start development and try to build where you think you can when the person at advantage can take what is on your title if they can prove AP.
If it was through private treaty you maybe able to arrange a clause for due diligence but as most auction contracts are " as is where is" my question is: is it possible to approach the real estate agents to have a clause added to auction contract, and if so what would that clause be to protect yourself from AP; "Vendor guarantees clear title" or "subject to clear title being provided"
Apologies I know some of my concepts and language are probably not up to spec legally but just thinking out loud.
A hypothetical quick measure of existing fence on hypothetical block would indicate discrepancies, and as inner Brisbane has hypothetically likely been the case for several decades.
If my AP understanding is correct, I find it unbelievable that all the power sits with the person at advantage which you will not know until after the event and all they then need to do is prove AP and lodge and you are left with a bag of you know what.
Cheers
