About to settle, potential issue with car space title (VIC)

Discussion in 'Legal Issues' started by Ripe, 16th Oct, 2019.

Join Australia's most dynamic and respected property investment community
  1. Ripe

    Ripe New Member

    Joined:
    16th Oct, 2019
    Posts:
    4
    Location:
    Melbourne
    I'm purchasing an apartment in VIC that was advertised as having a secure car space on the title, and I was indeed shown the car space by the real estate agent. I found today that the title to the car space is missing from the contract of sale - I wrongly assumed that title for the apartment included the car space but it seems it's a separate title (I'm going off the rates notice from the council). My conveyancer didn't pick up on this and I only found out after the vendor's conveyancer said it was missing from the contract and they would amend it. Now I'm praying they actually amend the contract but assuming they don't, am I screwed? I'm a little jumpy because I also found today that the advertised storage cage doesn't exist (although annoying, I can live with this). Do I have any recourse to get my deposit back if I don't settle because of the missing car space? I've asked my conveyancer these questions but I won't hear back until tomorrow and I'm stressing out now.
     
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    35,860
    Location:
    Australia wide
    You will have recourse against the conveyancer, but prob not the vendor. Best to go and see a lawyer now (or tomorrow).
     
    alicudi and Ripe like this.
  3. KateAshmor

    KateAshmor Victorian Conveyancing Lawyer Business Member

    Joined:
    25th Jun, 2015
    Posts:
    502
    Location:
    Melbourne
    You have a claim against the conveyancer/their insurer - they should have seen accessory titles on the plan of subdivision and questioned if any applied to your apartment: I would.

    The car park title almost certainly can’t be spilt from the apartment title, so you should get it eventually but the vendor may need time to get any mortgage discharged. Your claim against the conveyancer would include your out of pocket costs.
     
    lixas4, alicudi and Terry_w like this.
  4. Paul@PAS

    [email protected] Tax, Accounting + SMSF + All things Property Tax Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    18,485
    Location:
    Sydney
    Is the car space a stapled title ? The relevant strata may require this and its a land title matter that may result in you being given two separate titles which cant be dealt with separately. This means it cant be transacted other than with the apartment title. Unusual for a unit to not have a single car space if its a newer building as council dont want people who own or rent forced to fill the streets while the carpark is used as a profit making venture. In that case, the vendors will be fixing it to correct the defect.

    The vendor may be attempting to play a bad hand and has also bought the agent along and misled the agent. You may have action against them both if you were misled

    This should have come up when the contract was being signed. Normally you seek legal advice to make a contract and then hand over for the conveyancing completion after that. If you didnt seek advice and signed on your own decision its hard to blame your conveyancer.
     
  5. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,672
    Location:
    Qld
    Some complexes title the car parks separately. People can purchase one, two or no car parks. If the carpark is not on the apartment title, it is not included in the sale of the apartment.
     
  6. Ripe

    Ripe New Member

    Joined:
    16th Oct, 2019
    Posts:
    4
    Location:
    Melbourne
    Crisis adverted, settlement is moving and the vendor has added the title to the contract. I appreciate the responses above, I should have been more diligent at the early stages. This stress is not worth saving a few hundred dollars over.
     
  7. KateAshmor

    KateAshmor Victorian Conveyancing Lawyer Business Member

    Joined:
    25th Jun, 2015
    Posts:
    502
    Location:
    Melbourne
    “Better get a lawyer son...” :cool:
     
    Scott No Mates likes this.
  8. KateAshmor

    KateAshmor Victorian Conveyancing Lawyer Business Member

    Joined:
    25th Jun, 2015
    Posts:
    502
    Location:
    Melbourne
    No, not generally in Victoria. Car parks are generally deemed to be included when accessory titles are indivisible from dwelling titles (and legally can’t be sold separately).
     
  9. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,672
    Location:
    Qld
    But it does happen.
    We have seen it advertised once or twice, seemingly a marketing ploy to get more money from a new complex.
     
  10. 738

    738 Well-Known Member

    Joined:
    22nd Jun, 2015
    Posts:
    131
    Location:
    Melbourne
    Not that uncommon for newer blocks to have separately titled car parks. Especially in high rise developments.