Registration of Plan of Subdivision and Title of the property

[ozy]

Dear All,

I have made off the plan investment (1 bedroom) flat in Victoria and construction has not started yet (after 2+ years of signing contract).

Sunset clause date is Jan 2014.

Agent says:
1. Builder is going to start construction in 1 week or so.
2. Will register plan of sub-division by Apr 2013.
3. As soon plan of sub-division is registered my sunset clause date is void.

Solicitor says:
1. Even if builder applies for plan of sub division, Title of the property would not be issued. Hence, I would still be able to exercise sunset clause to rescind the contract.

Builder says:
1. They will finish the building construction by mid 2014.

My question:
0. Does builder gets registration of plan of sub-division even if construction has not finished?

1. Can I still exercise my sunset clause, if building construction is not completed by Jan 2014, even if builder applies for plan of sub-division in couple of months (Apr 2013)?

2. Can my sunset clause become void in any such case? I do not have any special condition on my contract. Its standard contract.

My plan of action:
1. Since builder accepts, they cannot finish project by my sunset clause date. And, if I am allowed to exercise my sunset clause, even if builder registers plan of sub-division, I would definitely go for rescinding the contract and put my money in better investment. I should informally approach builder to rescind this contract without waiting until sunset clause date. But only after listening to few of the comments on this forum.

You advice is very much appreciated. I would not sue anyone for giving me any advice, . Please PM me, if you don't want to publicly advice me.



Note: I am not allowed to publicly name and shame builder/project.

 

[Terry_w]

Most important bit left out - what does the sunset clause say?

 

[ozy]

Attached is the section which talks about this stuff.

Can builder register plan of sub-division without completion of building construction? As my solicitor said, "Title" need to be issued before settlement, and I could rescind after sunset clause date ("Registration Date") if Title is not issued. How does registration of plan of sub-division and "Title" relates to each other. And how do they both relate to this sunset clause.

Many thanks in advance.

 

[oc1]

Attached is the section which talks about this stuff.

Can builder register plan of sub-division without completion of building construction? As my solicitor said, "Title" need to be issued before settlement, and I could rescind after sunset clause date ("Registration Date") if Title is not issued. How does registration of plan of sub-division and "Title" relates to each other. And how do they both relate to this sunset clause.

Many thanks in advance.

No. Your solicitor is right. Just put the date in your diary and have your solicitor rescind your contract on that day.

Delays happen in building, it's just the way it is. I would have a chat with the builder to allow you out of the contract now and refund the deposit so they can sell to someone else now rather than January 2014. Just a thought.

 

[ozy]

Thank you OC1.

One or more confirmation in same regard would boost my confidence.

But you are right, I should contact the builder. There should be no harm in having a word regarding this matter with them.

 

[oc1]

Thank you OC1.

One or more confirmation in same regard would boost my confidence.

But you are right, I should contact the builder. There should be no harm in having a word regarding this matter with them.

If you have no luck with the builder get your solicitor to contact their solicitor. I use this clauses all the time. All standard. I have used them to rescind contracts, both as a buyer and a seller (and extend the clause too).

 

[Terry_w]

I think it is pretty clear. If plan of sub-division is not registered by xx you can rescind.

 

[ozy]

I think it is pretty clear. If plan of sub-division is not registered by xx you can rescind.

Thanks Terry.

But builder is saying, they will apply for registration of plan of sub-division in April, 2013 in the middle of construction.

My agent says:

When the builder registers the plan of subdivision the sunset date becomes void. Provided the plan is registered within the sunset period the vendor has complied with the requirements of the sunset date. Completion would occur shortly after and in order for you to remain compliant with the contract you would have to settle. To clarify here though this does not require that the property be completed and ready for settlement within the sunset period, only that the building be completed sufficiently to allow for registration of the plan of subdivision.

So are there any such circumstances, where builder could get registration of plan of sub-division, even if construction is not complete.

P.S.: Not sure about my right to quote my agent here. I will possibly delete this quote as soon I resolve my query. So please don't quote my quote anywhere else.

 

[Terry_w]

I am not very knowledgeable on the planning side, but that sounds about right.

 

[RPI]

Hi
Can you pull out the dictionary section of the contract and to define the Plan of Subdivision and the other capitalised terms in the clause above. The fact that are capitalised means they should be defined elsewhere in the contract.

I would also be very surprised if that was the only clause that dealt with it, off the plan contacts for units should run 20 to 50 pages depending on the size of the contract.

There is often a way out of most of OTP contracts (not ours) as the conveyancers often make errors in their execution.

You best point of call is your solicitor but if they are not able to help, be prepared that it may take several hours for someone to find holes in the contract and finding holes in the execution of it may take longer. It may cost you a couple of grand and that is if the other side falls over and accepts it. If there is a glaringly obvious mistake it will be less.

Also you may have a clause which details that you can pull out of the contract if it it obvious to a reasonable person that the seller is not going to be able to complete their obligations in the time required and allow you to rescind before the date.

D