Long time Somersoft forum stalker, just registered for my first post!
I bought a property in Melbourne in January 2013, and in February received a Building Notice from the council stating that the pergola was built illegally without a permit, and I have to go through all the red tape (Building Surveyor, Drawings, Plumbing Compliance, etc.) to make it compliant, or have it demolished by mid-August. I have already spent $2000 on this and it looks like I'm up for another $1500 at least.
I have it in writing from the previous owners that they had it built in 2008, and they didn't know it needed a permit. They say they don't have the builder's contact details, receipt or anything, so as far as I'm concerned they built it themselves.
I am also aware that the previous owners received a letter from the council advising that an investigation was underway about the pergola while our offer on the property was still conditional, and that an inspection also took place during the conditional offer period. I have it in writing from them to the council that they informed their conveyancer and their real estate agent of this during the conditional offer period, however no one informed us. Obviously if we knew that the council had a pending investigation about a structure on the property during the conditional offer period, our negotiations would have taken a much different course, and we may have withdrawn from the purchase. We were issued with a section 32 for the property before they found out the investigation was underway, but since the offer was still conditional, shouldn't this have been added to the section 32 immediately, as the section 32 is a document which factors into our purchase throughout the conditional offer period??
I would like to recover costs and I would welcome the thoughts of anyone reading this on the following:
Hold the previous owners responsible for illegally building the structure. There is a section in the Building Notice which states:
"Section 137C of the Building Act 1993 and section 8 of the Domestic Building Contracts Act 1995 provide for implied "warranties" for work carried out by an owner builder or builder which relate to the sale of a home.
These sections provide that the vendor or builder "warrants" that [all] domestic building work was carried out in accordance with laws and legal requirements including the [Building] Act and regulations", and that, any person who is a successor in title to the purchaser may take proceedings for a breach of the warranties as if that person were a party to the contract.
So, if illegal building work was carried out without the required building permit or in breach of the Act or regulations, proceedings for a breach of the regulations may proceed against the builder owner or builder who originally carried out the building work."
My intention is to write a letter to the previous owners (I have their new address and phone number), stating that as they cannot provide the details of the builder, it is understood they built the structure themselves and hence are the owner builders. They are therefore personally responsible for a breach of the building acts. In the letter I would like to itemise all costs and attach receipts, requesting a bank transfer for the full amount within 1 month. The ultimatum would be that if they do not comply, I have a legal practitioner ready to take the matter to the Magistrate's court, in which case they will also be required to reimburse my legal fees.
I am not sure if it is worth also stating that they failed to disclose that an investigation on the structure was underway when our offer was still conditional. No one so far has been able to tell me whether they were legally obligated to provide me this information during this period. If not the vendors, perhaps the agent or conveyancer were obligated to disclose, since they were made aware also?
I have also considered bringing action against my conveyancer, who has been of extremely little assistance after the Building Notice was issued. During the purchase I brought the structure to her attention as a concern, she told me to contact the council to see what had permits on the property, I did so and told her the pergola didn't have a permit, and she basically told me verbally "it's hard to say whether it needs one". In retrospect all she needed to do was check the council regulations and say "any pergola over 2m x 2m needs a permit, you have told me it is larger than that, so it was built illegally and this should factor into your negotiations". Is that reasonable to expect from the services of a conveyancer?
Thanks so much if you have read all this and can provide any advice, I would love to get a lawyer onto it right now, but with all the costs so far I think a lawyer on top of it would send me bankrupt at the moment. I would still get one though if I get a sense that I have a good case and the previous owners don't comply with my first letter.
I bought a property in Melbourne in January 2013, and in February received a Building Notice from the council stating that the pergola was built illegally without a permit, and I have to go through all the red tape (Building Surveyor, Drawings, Plumbing Compliance, etc.) to make it compliant, or have it demolished by mid-August. I have already spent $2000 on this and it looks like I'm up for another $1500 at least.
I have it in writing from the previous owners that they had it built in 2008, and they didn't know it needed a permit. They say they don't have the builder's contact details, receipt or anything, so as far as I'm concerned they built it themselves.
I am also aware that the previous owners received a letter from the council advising that an investigation was underway about the pergola while our offer on the property was still conditional, and that an inspection also took place during the conditional offer period. I have it in writing from them to the council that they informed their conveyancer and their real estate agent of this during the conditional offer period, however no one informed us. Obviously if we knew that the council had a pending investigation about a structure on the property during the conditional offer period, our negotiations would have taken a much different course, and we may have withdrawn from the purchase. We were issued with a section 32 for the property before they found out the investigation was underway, but since the offer was still conditional, shouldn't this have been added to the section 32 immediately, as the section 32 is a document which factors into our purchase throughout the conditional offer period??
I would like to recover costs and I would welcome the thoughts of anyone reading this on the following:
Hold the previous owners responsible for illegally building the structure. There is a section in the Building Notice which states:
"Section 137C of the Building Act 1993 and section 8 of the Domestic Building Contracts Act 1995 provide for implied "warranties" for work carried out by an owner builder or builder which relate to the sale of a home.
These sections provide that the vendor or builder "warrants" that [all] domestic building work was carried out in accordance with laws and legal requirements including the [Building] Act and regulations", and that, any person who is a successor in title to the purchaser may take proceedings for a breach of the warranties as if that person were a party to the contract.
So, if illegal building work was carried out without the required building permit or in breach of the Act or regulations, proceedings for a breach of the regulations may proceed against the builder owner or builder who originally carried out the building work."
My intention is to write a letter to the previous owners (I have their new address and phone number), stating that as they cannot provide the details of the builder, it is understood they built the structure themselves and hence are the owner builders. They are therefore personally responsible for a breach of the building acts. In the letter I would like to itemise all costs and attach receipts, requesting a bank transfer for the full amount within 1 month. The ultimatum would be that if they do not comply, I have a legal practitioner ready to take the matter to the Magistrate's court, in which case they will also be required to reimburse my legal fees.
I am not sure if it is worth also stating that they failed to disclose that an investigation on the structure was underway when our offer was still conditional. No one so far has been able to tell me whether they were legally obligated to provide me this information during this period. If not the vendors, perhaps the agent or conveyancer were obligated to disclose, since they were made aware also?
I have also considered bringing action against my conveyancer, who has been of extremely little assistance after the Building Notice was issued. During the purchase I brought the structure to her attention as a concern, she told me to contact the council to see what had permits on the property, I did so and told her the pergola didn't have a permit, and she basically told me verbally "it's hard to say whether it needs one". In retrospect all she needed to do was check the council regulations and say "any pergola over 2m x 2m needs a permit, you have told me it is larger than that, so it was built illegally and this should factor into your negotiations". Is that reasonable to expect from the services of a conveyancer?
Thanks so much if you have read all this and can provide any advice, I would love to get a lawyer onto it right now, but with all the costs so far I think a lawyer on top of it would send me bankrupt at the moment. I would still get one though if I get a sense that I have a good case and the previous owners don't comply with my first letter.