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On-selling off the plan property

Discussion in 'Legal Issues' started by alvaro86, 27th Jul, 2015.

  1. alvaro86

    alvaro86 Member

    Joined:
    27th Jul, 2015
    Posts:
    11
    Location:
    Sydney, NSW
    Hi All,

    Just would like some opinions/advice from members on here.

    Would these clauses in my contract prohibit me from on-selling my property before settlement with the new purchasers, myself and the original vendor all settling at the same date, time and location:

    46 Assignment:
    46.1
    The Purchasers shall not, without the prior written consent of the Vendor (which consent is in the absolute discretion of the Vendor) mortgage, charge or otherwise encumber any of its rights, obligations or interests under this contract


    48 No assignment
    48.1
    A Purchaser cannot assign or otherwise transfer the benefit of this contract without the prior written consent of the other Vendor.


    I have spoken with my solicitor who isn't too experienced in dealing with off-the-plan sale and purchase and she has advised that none of these special conditions mentioned above in the contract prohibit me from on-selling the property before settlement.

    Technically, I am not transferring the benefit of the contract (imo) as I actually still completing the original contract, but also selling the property at the same time.

    Any advice or opinions as to these special conditions would be greatly appreciated.

    Thank you in advance.

    Alvares
     
  2. thatbum

    thatbum Well-Known Member

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    899
    Location:
    Perth, WA
    I suspect your solicitor is correct. I'm a little surprised you're getting a second opinion on your legal advice from randoms on the internet though.
     
  3. alvaro86

    alvaro86 Member

    Joined:
    27th Jul, 2015
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    Location:
    Sydney, NSW
    As a long time lurker on here, I have seen the brilliant advice people have said on here so I just wanted a second opinion as my solicitor didn't seem too sure.
     
  4. KateAshmor

    KateAshmor Victorian conveyancing lawyer Business Member

    Joined:
    25th Jun, 2015
    Posts:
    74
    Location:
    Melbourne
    Victorian off-the-plan contracts almost always have a separate "no on-selling" prior to settlement clause. Are you sure there isn't a separate clause that deals with selling prior to settlement?

    Otherwise, "transferring the benefit" under clause 48 may well include on-selling, it depends what the intention of the parties was at the time the contract was signed.
     
  5. alvaro86

    alvaro86 Member

    Joined:
    27th Jul, 2015
    Posts:
    11
    Location:
    Sydney, NSW
    Thank you for responding. I just feel the clause isn't too clear and if the Vendor really wanted to prohibit on-selling then they should have specified it clearly in the special conditions just like they do in Victoria.

    There is no specific special condition referencing on-selling.

    Thanks.
     
    KateAshmor likes this.