Vacant possesion, contracts and state of appliances etc NSW

Hi All,

After many sales and purchases, have not really gone into some of the finer legal aspects of property law, in fact, have never really needed too, but would like to discuss some of the above.

My understanding of vacant possession, is the property, or namely the dwelling or building and it's improvements should be minus someones belongings, so they should not dump unwanted furniture lets say into the garage or garden shed, it also should have clear title and no lease or other use granted to anyone over the property.

As for cleanliness, this one is not that clear, if inspected with cut lawns and no rubbish, should be like this to settle, if it was a mess already, then you may have no leg to stand on.

When it comes to working appliances and say keys, this is not so clear, I have never asked for the contract to be re worded to cover all these little things, but would be interesting to discuss what sort of state appliances should be in (in regard to operation) & if any items are listed on the contract, would this mean it would be reasonable to expect that not only are they there, but they are in fact operational.

What is the best course do you feel if say a listed item is not there on final inspection, or listed items are not functional ? What about non listed appliances that you have not been able to check until final inspection, where do you stand here if you were to insist.

My thoughts are always to settle unless some major damage, have done this many times and retained some funds, but what I do not know, is this retention something as a purchaser you can force, even if your dealing with a difficult vendors solicitor.

Also, at times, I have been handed 1 key out of an expected 10+ , no remotes or broken remotes, or even no keys at all, if the vendor and solicitor have been reasonable and negotiated with us in good faith I have not worried about these things too much, especially if been given access, but is there any set rules or guidelines you have used for this prior, my last one we were given 1 key, vendor said they never locked house.

Keep in mind, I am leaning this toward vendors and solicitors that are difficult, and myself I do not want to litigate, but this brings another question, if you were to seek compensation afterwards, if it is small amount of a few thousand, can you do it through local court small claims.

 

Correct!

There is no compulsion (in NSW) for a vendor to mow lawns or even clean the house

Appliances can be in the same state as they were at unconditional exchange of contracts less fair wear & tear.

No. If they were non-functioning at exchange they can be non-functioning at settlement.

Then they have to make good and put it there. I recently got a free dishwasher for a purchaser where it was not actually in the property on any inspection, but it was listed in the contract. I said to the agent "where's my dishwasher?" he said (rightly) that "there was never one there and here are the photos to prove it". I said "here's the vendor's signed contract saying a dishwasher is an inclusion". The agent said "what brand of dishwasher am I getting installed for you today, sir?"

They get to be made functional if they were so at exchange. Otherwise tough luck.

Tough luck.

Yes we force the same issue as well. Hold back double what you think it is worth and give say 5 days to fix otherwise you retain the held-back funds.

All keys for all doors etc and working remotes must be handed over at settlement. Personally, I'd change all the locks and keys anyway for safety sake.

Do it before (and even delay) settlement as you have leverage. Never wait till later - how are you even going to track them down if you don't know where they've moved to?

 

Legally it all goes back to the contract.

Sold a unit once, it had a brand new dryer. When we signed the contract we saw the dryer wasn't included. Agent said he told the buyer he did not know if it was working, so would not put it in the contract.

It promptly moved into my laundry and is still working well!
Marg

 

I suppose it will also depend on how many chances, if any at all, you get to do inspections, and how many places you are looking at & if your interstate or not.

For instance I will look at multiple suitable places when in an area, at a open home you will not really be in a position to test everything, even if vacant, as this initial inspection is usually, for us anyway, to see if a place is suitable to go to the next stage.

I also have had building inspectors refuse to do any sort of checks on any sort of appliance or inclusion AND refuse to do the job if we were present, while I do not like this, as I am not the kind that watches over someones shoulder, I could be doing other checks at that time. Usually too late to organise someone else by then too.

Let me put it this way, some agents make it hard to see a property when it is on the open market, let alone once your under contract, so it will depend on what type of market it is somewhat, so if they make it hard, then you have to decide to either cop it and move to complete, or pull out if in cooling off.

I do take your point about not trying to chase after the fact. That is never ideal.

Yes.

I keep the solicitors busy already, I could see them cringe if I give them lists and lists of things to do & I can see some vendors saying.....take a hike !

I think if we tried to do it all by the book, and black and white, a lot of things would fall over.

I prefer the idea of say, come inspection day, you find thinks like furniture left behind as rubbish, or only a few keys, or one, etc... to direct that funds be withheld & just cop some of the rest on the chin if they refuse.

 

After settlement occurs, my pet hate is receiving a container of 20 or so keys with no idea of what goes where. Always a few missing, and always some left over!
Marg

 

Prevention is better than cure, as the saying goes. When we inspect for clients, we photograph, test all electrical/gas items and verify (in writing where possible) that everything works. Much easier to then produce photos at PSI time, to prove the point that the property was in a superior state upon exchange.

Vacant possession is easier to enforce, however we often get a special clause added to the contract, to cover us for "grey area" items such as building materials (often left in sub-floor or outbuildings) as vendors can leave these for purchasers to later discover and remove at their own cost. Checking every cupboard and surface at PSI time is a must, and more than not yields surprises- like @Propertunity we return to the vendor and either obtain funds held back until goods are removed/cleaned up or delay settlement if necessary. It can be a grey area, but if handled professionally and with care, most vendors resort to being fair and reasonable, in our experience.

 

I think as a BA you can get away with doing that.

Am dealing with a troublesome agent and solicitor that is a "mate" at the moment, if I pulled out a camera and tried to go round doing that, I know he would have interfered straight away, some of these agents are meddling buggers & not on the vendors side at all. They just want the easy way out, some of them get very personal too, really feel sorry for some vendors and choice of agents.

The agents who have a professional outlook would probably not mind as are business minded, do you normally do this on everything you look at on opens ? or only at a separate inspection when someone is def interested ?. How do you deal with the places that are not vacant and the owners are hanging around ? I imagine you can easily explain you must show your buyers everything so they have a good idea on if they wish to go further and make an offer, maybe I should tell agent I am a BA for the other half Which I am really, just I have extra say and veto vote.

I am in the middle of a place that is located in a non local buyers market, I will personally inspect and from some of the things the agent dropped the other day on me, I am pretty sure there is going to be dumped furniture & I sense only one or two keys and no remotes, as there had been a troublesome tenant. I sense this one will end in a fight, I may be wrong, but they tried to put a few things over already.

To be honest, have never really thought much about the small appliances, locks etc in the past, as have always factored this into what I offer as nothing is perfect, but on non local places it is a bit of a drag, filling up the trailer and going of for up to a week to fix and clean other peoples mess and lack of maintenance. On the last one it was left in such a mess and furniture had hidden some issues, plus vendor was very difficult changing mind on everything daily, we retained enough to fix nearly everything, much better as it allowed us to concentrate on other improvements. I think they could have said go jump though.

I do think that we are more business like than many, and you will always hit agents that may not like this (especially if think your just another house buyer but being a pest), how much objection do you get from agents ? And assuming for personal buy you do same sort of things ?

What do you BA's do when you run into a troublesome agent but you have keen buyers for place in question ?

And thanks all for your perspective, I am wanting to improve our process going forward. It has worked well so far, but no doubt can be improved. Also others may find it helpful.

 

LOL have not had a container, but recently had a bunch of keys left in kitchen, none anything to do with house, agent had 1 key, it was for screen door from memory.

Oh, and for the benefit of others, on another one I asked the agent to get the vendor to leave all keys on the kitchen bench and any other related items, without asking, they sent in a cleaner, you can probably guess the rest !

Don't leave keys if a cleaner is being sent in, funny now....not so much then !

 

We normally take photos of shortlisted properties (those we identify upon inspection) to send to clients who aren't able to inspect themselves. Majority of agents are fine with it, though you do get the odd tenanted property for which we need to seek permission via the tenant and also be careful not to photograph any personal items, photos etc. We are always discreet and careful here.
Doesn't worry us if owners are hanging around- they have something for sale so understand our position.

Very little objection and yes of course I take pics for personal buys too

They'd be a poor selling agent indeed if they ignored us as we bring repeat buyers through the door, but in the early days we sometimes had to go around the listing agent, by either contacting other agents in the same office or the vendor's legal rep. We get there eventually

No problems