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Issue with contract, Apt due to settle on Friday

Discussion in 'Legal Issues' started by JK200SX, 28th Jun, 2016.

  1. JK200SX

    JK200SX Well-Known Member

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    We have an issue where an apt is about to settle in next few days. Yes, its an OTP apartment, but thats another story. So going back about 2 yrs ago when contract was signed, it was not clear what the ceiling heights should be. The selling agent said 2.6m, and this was added to the contract and signed/initialed against. Anyway, upon inspection last week,, I measured the ceiling height at 2.44m high.

    So, I spoke with my conveyancing solicitor, who document this and forwarded to the sellers solicitor. Its nearly been a week now and there has been no response from the sellers solicitor. My solicitor has tried contacting them on numerous occasions and has been reluctant to speak to one of the partners in that law firm.

    What can we do next as we are running out of time. In essence, I'm after compensation for this difference, it is a 6.2% difference in height and the higher ceilings were to give a more spacious feel in these small apt's been made these days. I know once I hand over money on settlement, it will get even harder, so I'm after some advice from the brains trust here.

    Thanks.
     
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  2. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Does the contract allow to a variance? Most allow for a 10% variance in size, don't know if this would cover ceiling height.

    If they refuse what right do you have to not settle?
     
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  3. JK200SX

    JK200SX Well-Known Member

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    From the review of contract done prior to signing, it was mentioned upto 5% variance.

    If they refuse, I don't think I have any right not to settle, but the issue is they aren't replying to the correspondence from my solicitor.
     
  4. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    What state is it in?

    You might find that they will negotiate when it comes time to book in settlement and your solicitor says that he has instructions not to book until this is resolved.
     
  5. JK200SX

    JK200SX Well-Known Member

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    Its in Melbourne, Vic. Settlement booked in for Friday.
     
  6. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Perhaps you shouldn't have booked...
     
  7. JK200SX

    JK200SX Well-Known Member

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    There would've been penalties if settlement didn't take place within 14 days of cert of occupancy. Do you think it can be changed under these circumstances?
     
  8. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    You haven't gotten that far yet. When booking why did the solicitor not raise it when the vendors then? You have lost some leverage now.
     
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  9. JK200SX

    JK200SX Well-Known Member

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    Well then, can you recommend or suggest any course of action?
     
  10. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    I would talk to your lawyer about cancelling the settlement until you resolve the issues. Work out what the penalty interest would be - but consider also the interest you would save. I think the notice to complete period is 14 days in VIC, but get legal advice on this too.

    hope you are not using a conveyancer who is not a lawyer.
     
  11. JK200SX

    JK200SX Well-Known Member

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    No, the conveyancer is a lawyer.
     
  12. JK200SX

    JK200SX Well-Known Member

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    Anyone else care to comment on the specific topic here?

    Its a real pity that one solicitor can't communicate with another. what hope is there for anyone else?
     
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  13. Ghoti

    Ghoti Well-Known Member

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    Dunno about that - I've seen conveyancers who can run rings around lawyers when it comes to property!!

    I'll wager that a call to the other parties solicitor to discuss postponing settlement pending resolution of the issue should get a response ;-)
     
  14. JK200SX

    JK200SX Well-Known Member

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    I was actually thinking that too
     
  15. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    Building Code of Australia standards depend on if its a habitable room or kitchen etc. I think 2.44 sounds too low under BCA ? There is a rule for averaging etc also. I recall this came up on the Block and Darren Jollie had a time ripping out ceilings after a floating floor was laid. The bulkheads etc stuffed up his average height.

    Update : 2.4 is BCA minimum etec...Habitable Room and Legal Ceiling Heights so seems its just a contract spec defect builder may need to remedy. I bet they offer little. Typically contracts exclude any representations made by agents or others.

    Apologies if its bold. Some peoiple cant read.
     
    Last edited: 30th Jun, 2016
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  16. sanj

    sanj Well-Known Member

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    pretty sure minimum is 2.4m

    i certainly would not be happy if i was in the OP's position.
     
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  17. DaveM

    DaveM Adelaide Buyers Agent & KFC Strategist Business Member

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    2400 for habitable room under BCA, and same for midpoint/averaged for raked ceiling
     
  18. Scott No Mates

    Scott No Mates Well-Known Member

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    That 200mm saved by the developer over 13 floors of the building have given them a whole extra storey under a S96 amendment to their DA without changing the building envelope - happy times for the developer
     
  19. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    DA is given based on units and numbers of persons etc. Would affect carparking, and much more. Doubt s s96 as it can correct a minor error, misdescription or miscalculation. An extra floor of units ? Doubt it.
     
  20. Scott No Mates

    Scott No Mates Well-Known Member

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    Have seen a building reconfigured under S96 - number of units increased, no change to parking.