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Responsibility on Title/Sale of Contract

Discussion in 'Legal Issues' started by albanga, 9th Jul, 2015.

  1. albanga

    albanga Well-Known Member

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    Hey All,
    I have another thread in development about an issue I am currently working through regarding stormwater.

    Without going into it too much, I am subdividing and selling an existing property and then building out the back. As part of my DA I need to build a pump pit during development.

    The issue I have is that the front dwelling has no storm water and When the pit is constructed I need them to have their water redirected into this pit as well (just pouring out onto my footings! No thanks!).

    So my question is how can I legally bind whoever buys the front dwelling to: A - Be required once constructed to have their storm water re-directed into this pit (the cost of this I am not too fussed about because it will be relatively cheap)
    B - Have them be half responsible for the maintenance, repairs.etc of the pump pit.

    I originally though a section173 but am being advised this is not the case.

    I was thinking perhaps a caveat or something on the contract of sale?
     
  2. Pistonbroke

    Pistonbroke Well-Known Member

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    You are burdening the rear block with the obligation to dispose of the water from the front block. Rear lot owners problem without obligation imon the front property (benefitting form the easement on the rear lot).
     
  3. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    easement?
     
  4. albanga

    albanga Well-Known Member

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    Sorry but I am confused by both answers.
    Pistonbroke It is not a burden to the rear lot, is really is a necessity that once the pit and pump get constructed that the front property also needs to get connected into it.

    Sorry Terry what do you mean by an easement in this scenario?
     
  5. RPI

    RPI Property Lawyer, Town Planner Business Member

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    You would have a lawyer draft up an easement document (surveyor will need to put on Survey plan) granting an easement for the purpose of drainage of stormwater through the block.
     
  6. albanga

    albanga Well-Known Member

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    So this would happen as part of the subdivision process? Meaning it MUST be done prior to the new titles being issued? The easement document would then have a few clauses saying things such as:
    A - All dwellings must connect to the storm water pit once constructed
    B - All dwellings will be responsible for the maintenance and repairs of such pit.

    RPI it sounds as though you have had experience with this?
    I am just unsure who is responsible for coming to this agreement? MY subdivision permit says I must enter into agreements with the relevant authorities including drainage. Does that mean it is my responsibility to call council and ask them what they want me to do? Or is that the role of my surveyor?
     
  7. RPI

    RPI Property Lawyer, Town Planner Business Member

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    It depends on the state and the council. Some councils require all drainage easements to be in favour of the council and will have the relevant document for you.

    Being that i own a busy property law firm that works for lots of developers, we do easements almost every day of the week. I had a look at one lodged today and it is a 6 page document, the first page contains the descriptors for titles but the next is 5 pages of terms and conditions.

    Your DA should have a condition(s) that outline the requirements. Surveyor puts the easement(s) on the plan.

    Eg Easement A, Easement B, Easement C

    A might be for drainage
    B might be for access
    C might be for overland flow

    The client will tell us what each easement is for and which lot(s) it is benefiting and burdening. We then write the easements accordingly and lodge them at titles.
     
  8. Scott No Mates

    Scott No Mates Well-Known Member

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    You, as the developer will be responsible for building the pit and connecting the existing property to the new pit. You will need to create the appropriate easements (via solicitor/surveyor).
    You will need to agree with yourself to come to the agreement ie it must be in place before consent for subdivision/titling is granted ie you cannot oblige a purchaser (who has not yet been identified) to hook up to a pit which doesn't exist until some time in the future, the block is currently utilising the drainage (if any) or overland flow across the proposed rear block.
     
  9. albanga

    albanga Well-Known Member

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    My biggest concern with this approach is constructing the pit prior to construction of the dwelling. I need the land subdivided to sell the front property and only then can I construct. It makes no sense to construct a pit prior to construction as it will just be destroyed during the process.
     
  10. Scott No Mates

    Scott No Mates Well-Known Member

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    That is why you plan a site. the pit is located in the easement - you shouldn't be building over it.

    How is the front block going to drain whilst you build on the rear block if you haven't constructed the pit? as you pointed out in your earlier post, it will wash away your footings.

    A potential purchaser will be turned off by not having the pit in place beforehand as it will leave them open to claims for flooding by uncontrolled runoff.
     
  11. albanga

    albanga Well-Known Member

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    Hi All,

    I just wanted to give an update and again try and get my head around this.
    Below is an image of my plan of subdivision, please note the E1 as the permit says:
    Easement E-1 to be in favour of council

    The red lines I have drawn in myself but they are to show how the existing dwelling currently drains its storm water. As you can see they run into the easement where they just empty into the soil. They also run under where the new dwelling will be constructed.

    The large red circle indicates where engineering have proposed the pump pit to be located. This however has not yet been approved by council and given their preference to have this in E-1 likely would not be.

    So know you understand this more clearly I go back to my original question.
    If I am planning to sell the front property before I construct the pump pit. How do I ensure that the person purchasing the property must also connect to the pump pit once constructed? My surveyor said do this on the contract of sale? Is this possible? And can i also stipulate on the contract of sale that they are required to pay the cost of this and also for the ongoing maintenance of this?

    Secondly if the pump pit is to big to fit into the easement (looks likely by the current drawings), then what would happen? Could a new easement be created where they currently have it?