Advice needed - builder wants to amend contract and take land.

Discussion in 'Legal Issues' started by pwnitat0r, 12th May, 2017.

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  1. lixas4

    lixas4 Well-Known Member

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    @dabbler - looks like i got confused by what you said earlier.

    The laws around ownership are state based. @Joynz and I are vic based. @dabbler you seem to be nsw based. So yours will be dif to ours.

    In vic you own what your title and plan states you own. Over the years there have been a number of different acts relating to subdivisions and title creation, and each time there has been changes to plan preparation and the 'rules' relating to the ownership. There is no one rule that relates to all, each plan needs to be investigated and evaluated.

    Example - for modern apartments the ownership is generally defined by an airspace within a structure - ie the internal face of the permiter wall/ceiling/floor. With the structure of the building being common property with services running through. But this may not always be the case. I was at a seminar yesterday where a case was discussed where a penthouse owner owned the roof structure and airspace above. There was roof leaking issues, it was found he alone was liable.

    Joynz - you are right you can have ownership of private use land within a strata sub in vic, if your sub plan shows you own it, then its yours. Not sure about nsw.
     
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  2. lixas4

    lixas4 Well-Known Member

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  3. dabbler

    dabbler Well-Known Member

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    OP in Sydney, says OTP apartment, assumption made it is a modern apartment block probably in Sydney....
     
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  4. pwnitat0r

    pwnitat0r Well-Known Member

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    Yeah, it's in Sydney. I feel thread is now off-topic
     
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  5. pwnitat0r

    pwnitat0r Well-Known Member

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    Hi,

    I purchased a ground floor apartment with the contract specifying internal was 82sqm and external was 82sqm. Total = 164sqm. Parking and storage was extra and the sqm are not specified in the contract, so possibly a 180sqm+ place overall.

    Contract mentions variations, two may possibly be relevant:

    "Changes as required by any authority (including council)"
    "Changes as required by the vendor"

    The rest of the variations are small changes, similar material, appliance of equal quality, etc.. so the spirit of the variations are within reason for minor changes.

    Today I found out the builder has taken over 40sqm of my external courtyard and used it for common area! I do not think that there is any possible way this can fly as part of the contract.

    So my question is now how do you work out compensation? Is it simply a 25% reduction of space is a 25% reduction in price?

    I'd love to hear of how anything similar to this was decided via compensation.
     
  6. dabbler

    dabbler Well-Known Member

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    Ahh, it is all good, people can learn even if it strays into other areas. Hopefully you have enough info to have a plan and hopefully get a result that works for you :)
     
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  7. Xenia

    Xenia Well-Known Member

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    Hmm
    This can take many various directions and no simple answer.

    The equivalent building area is not affected so it would not alter the valuation by much.

    The question is would you still purchase this property if you had known about less outdoor private space?

    If I was on the selling side I would be asking .... what do you want???
     
  8. pwnitat0r

    pwnitat0r Well-Known Member

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    Absolutely not, I would not have considered it. I only bought it because of the privacy + large grass area. Both of those are completely gone now.

    The way I see it is I paid an average of $4,500/sqm (internal + external), they can buy it back for at least the sale price. Nearby land sales are ~$2,200/sqm.

    I know there's no way they will agree to a $4,500/sqm compensation, they would rather have me rescind contract and put it back on the market. I don't mind taking them to third party (whether it be court or otherwise) for compensation if need be.
     
  9. thatbum

    thatbum Well-Known Member

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    ...Are you even entitled to compensation? What is the vendor offering?
     
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  10. pwnitat0r

    pwnitat0r Well-Known Member

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    Do you think the vendor can just take 50% of my courtyard or 25% of my allocated space per the contract?

    It's like me saying I'm reducing the price I'm paying by 25%.

    Haven't offered anything yet, just got the agent to inform us. He mentioned an extra car space, but it's not worth anything to me as I only have one car.. also plenty of parking on the street.

    Extra car space won't cost them anything. All I want is $$$.
     
  11. Terry_w

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

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    What does your contract say?
     
  12. thatbum

    thatbum Well-Known Member

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    They might. Its not unheard of.

    Or your remedy might be rescission instead of any compensation.
     
  13. pwnitat0r

    pwnitat0r Well-Known Member

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    Terry, see attached file
     

    Attached Files:

  14. pwnitat0r

    pwnitat0r Well-Known Member

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    And the remainder of the clause..
     

    Attached Files:

  15. lixas4

    lixas4 Well-Known Member

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    Apologies for hijacking your thread. Please keep posting your experience, personally im very interested in reading about the outcome.
     
  16. alicudi

    alicudi Well-Known Member

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    Hi

    Same here, I had a deposit on an OTP purchase a couple of months ago and after reading the proposed contract pulled out and got my deposit back for fear of issues such as what the OP is experiencing.

    Regards,

    alicudi
     
  17. pwnitat0r

    pwnitat0r Well-Known Member

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    More than happy to share my experience, but I would appreciate any input people have to value the compensation.

    Even better if there are similar cases and how they have been decided, etc.
     
  18. pwnitat0r

    pwnitat0r Well-Known Member

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  19. dabbler

    dabbler Well-Known Member

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    I would look at what sqm you had and what it cost you & what they are proposing you now have & work from that, not the land value.

    Also with a smaller area the levies must be adjusted downward, however I have seen many strata plans where the costs were the same across all units evenly.

    If you have less space, pay less to buy seems reasonable and less in strata fees.
     
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  20. pwnitat0r

    pwnitat0r Well-Known Member

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    I paid $4,500/sqm (internal + external) for 82sqm internal and 82sqm external.

    $4,500 x 40sqm = $180k on $750k purchase price.

    If a judge will award that, I'm off to Court 100%.
     

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