Bought a Unit at Auction - Wanna Get out of The Contract Is It Possible?

Hi Guys,

Guys I need help here. If anyone can please share there knowledge in regards to my issue then it will be big help. I know I screwed up big time.

I bought a unit at auction but when the bank did the valuation that's what they said

"As discussed, the subject property shows obvious signs of non-compliant building codes issues (ceiling height). We are aware property has been registered and have investigated further.

The property was certified by a private certifier by the name of Anthony Allen, who we have confirmed was reprimanded on 03/05/2016 on a separate issue regarding a strata development.

This is very concerning and affects the certifiers credibility. We are not willing to accept this certifiers recommendations and request cancellation of report.

As per my Solicitor Conveyancer:

This is the email I received from my solicitor Conveyancer which will explain everything in detail.

I understand from Kathy from —- bank that the findings of the bank's valuer about the unit you have purchased does not comply with the BCA due to the ceiling height being 1.8 meters from floor to ceiling and therefore, due to the bank's valuer assessment, your loan application has been declined.

Unfortunately, you have exchanged contracts under auction conditions and under the contract must complete the contract upon the vendor's solicitor serving notice of registration and an occupation certificate.

We were notified by the agent that the strata plan was registered as Strata Plan —— on the 18 November 2016.

To date, the vendor's solicitor has not formally served me with notice of registration nor the occupation certificate.

I note your instructions that you will continue to apply for another loan to secure adequate finance to purchase the property and at the same time, you wish for me to obtain more information about the original development application of the building, so we can determine what was approved by council. This morning I have sent to council an Informal Access Application under council's Government Information Public Access (GIPA) to obtain copies of the original Development Approval and other documentation that may assist.

I note that you have also instructed me to obtain a Building Certificate, a copy of the application is attached herein.

In order to terminate the Contract, we must determine that the contract is a latent defect that is a fault in the property that could not have been discovered by a reasonably thorough inspection before the contract was entered into. This can be challenging as if you conducted a building inspection prior to the auction, the issues may have been discovered before you purchased the property. Furthermore, terminating the Contract will lead to court action and you will need to consult a qualified solicitor who has experience in these sort of matters.

The problem here is that if we are served with an Occupation Certificate then you must complete the contract as the certificate certifies that the property as being fit for habitable occupation and further, the vendor will rely on the contract to enforce your obligations under the contract. As far as the vendor is concerned, he would say that he went through the right channels to obtain strata subdivision and obtain an occupation certificate.

The whole process in trying to prove that the property is not a unit but a storage space will take time as you will need to prove that the error or misconduct or failure is on the part of the certifier or the vendor.

If you purchase the Building Certificate perhaps we can try to prove that the property sold is not a unit but a storage space and therefore, the contract is misleading on the part of the vendor as you did not get what you bargained for, that is, a unit. The other alternative is that if we establish that it is a storage space, that the contract price reflect the true value of a storage space and therefore, the price should be reduced, however, this alternative is not recommended as you may not be able to obtain a loan for a storage space.

The other alternative is to approach the private certifier and ask him to explain what evidence he has to deem Lot 10 as being a unit.

I highly recommend that you seek the advice's of a qualified solicitor to discuss your legal rights should you wish to terminate the Contract.

If someone can please explain what can be done here then it will be big help. I don't have enough knowledge about all this stuff but just wondering anyone think if there's any chances for me to win this case if i go to the court?

Thanking you all in advance.

Regards and best wishes
Imdad

Comments

        • -1

          @infinite: errrrr. Before the auction you can ask for the contract of sale and is typical practice. Last three auctions I have been too and did bid had the clause that it was your responsibility and was not a clause of termination of the contract.

          Secondly if you're the winning bid, and have second thoughts they can take you to court for fraud and can be sued for the difference in price from the highest bidder is willing to pay and your bid.

        • +3

          @infinite: That is not the way it works, particularly with an auction. What you have described is a tender, and they are quite uncommon.

          Yes there has to be an offer and acceptance - congratulations on reading page one of the contracts textbook.

          You might want to actually look at a standard NSW contract before advising what is or isn't grounds for immediate termination (or even later chapters in the contracts text which talk about the difference between conditions and warranties).

          You can neg my comments all you like, but you clearly know very little about conveyancing.

        • -1

          @djkelly69: Well voted you up, ;) good to see somebody does read more than the first page of contracts textbook.

      • +1

        You should always put that in for a normal contract of sale unless you are going cash unconditional to try and get a discount or just win out over others..

        I've done that twice in QLD (conditions). Never needed to use it. Both times things came up but went through anyway cause they were minor.

        • -1

          QLD conveyancing is completely different to NSW, and things are done in a different order.

          The vast majority of contract exchanges in NSW are unconditional (ie. don't have "subject to" clauses) because you generally obtain your reports, finance approval and legal advice before entering into the contract. Auctions are different, but are always unconditional as well.

  • can you please advise which conveyancer u appointed?????

    • why does that matter ?

      • +4

        So everyone on ozbargain knows to not go near.

        • +6

          why ? I didn't see anything wrong with what the conveyancer did :-/

          Hope she's not named.

        • -1

          @tomleonhart: Because the conveyancer may have stuffed the contract of sale, or provided poor legal advice. There is likely no legally valid reason why OP shouldn't be able to simply terminate the contract and walk away from this right now, unless the conveyancer did one of those two things.

        • +2

          @infinite: The conveyancer for the Purchaser does not prepare the contract. The conveyancer in this case may not have even seen the contract prior to the OP bidding and being successful at the auction.

          Even if they did, which required document might have shown up that there was an issue with the roof height?

          You are making blanket statements in this thread that are flat out wrong.

        • @djkelly69: Also seeing a conveyancer after the bidding as a last ditch attempt to get out isn't the brightest idea either.

  • +3

    guess I will steer clear from ur certifier !!!! thanks for WARNING

    • +4

      And that real estate agency! Scummy.

  • +6

    This thread delivers! Thanks to the OP. Honestly, it looks like it shouldn't be certified for occupation and seems like it is advertised incorrectly. I would be seeing an experienced property lawyer followed by Fair Trading and getting out of the contract.

  • +5

    The Certifier's issuing of the certificate breaches EP&A Act s.109H(5)(c). Surely any tribunal would find in favour of OP?
    Just get in touch with a solicitor and they can give you better advice.

  • +5

    How much was your deposit?

    Also save all advertisements online using archive.org so noone can claim you have altered them

    They will delete all the evidence as soon as they realise you want to back out

  • I remember staying in a hotel in Japan where I could easily touch the ceiling, and I'm not tall. It was 2.1m, at most, and I immediately noticed it. How someone could not notice 1.8m is very strange.

    The average Australian male is 175cm tall, according to Dr Google. Is someone seriously selling a place where an above average man cannot stand up? I guess there are no light fittings in this place either.

    Can you argue that the living area is not fit for human habitation and against building codes?

    • The average Aus male could stand up - they'd just have to take off their shoes first! :)

      • +2

        They wear shoes?

  • Sounds like you should be suing the building certifier for the costs incurred by purchasing the house.

    • +3

      That's something the seller would have to take up with the certifier in court, after OP terminates this contract of sale.

  • +1

    OP says he's 1.7m tall; did you not ever enter the place to see what it's like, surely even though you would fit in there it would make you feel taller than you are…

    • +1

      Even if the OP is short, you'd think a lifetime spent in buildings with 'normal' ceiling might tick something off that maybe that ceiling is not where it should be. Even the photos look 'off.' The ceiling begins about an inch above the door. I have never seen that before, no frame between rooms.

      • +1

        Yeah that's what I meant, even if he could walk in, surely the lower ceilings would be obvious. Looking at the photos makes me feel all funny :)

  • +5

    when people bid at auction for storage spaces thinking they are apartment units, you know the peak of the property bubble is here.

    • +1

      what property bubble, are you crazy? media and the government tells us there is no property bubble.population ponzi keeps the bubble alive, but someday something will give and when interest rates rise i hope people can service the interest only loans lol. actually most wouldn't even know what hit them :)

    • +1

      when people bid at auction without even looking at the place, you know peak property bubble is here. FTFY

  • +8

    OP, no one here can help you. No one.

    I suggest you speak to a solicitor.

    • +1

      Are you trying to help them?

    • dont worry, he's now frantically calling everyone that he thinks know someone who knows a solicitor.

      • He isnt, he is talking to the real estate agent and getting them to find a valuer so they can get him a loan for this dodgy storage unit.

  • +1

    Can you share some photos? Dying to see them

    • +1

      Consensus seems to be that this is the place https://www.realestate.com.au/sold/property-unit-nsw-harris+…

      • +9

        Ceiling height aside how the hell do you get into the shower, over the toilet or through the washing machine?

        • +1

          Lol had to have another look. Maybe it opens inward but yeah still a stunt to get in. It's not even square as the toilet water intake is in the way. Oh man…

        • @decr: A lot of bathrooms in Asia, Korea and Japan are really tiny with minimal movespace. Maybe the person renting there was just used to it. LOPLP

  • +9

    Dear Op.. Imdad.. Please do seek assistance via beyond blue or whoever if you get anxiety or depression from this.

    That would be expected.. Buyers remorse is normal even for a good buy..

    Just remember you may find a way out of this, and if not, it will one day reside in the past.

    Couldn't pm you this message it seems.
    Good luck with it.. Breath.. Seek solicitor to help with logic/ steps from here on out

    • +6

      Buyers remorse is normal. Rooms with height 1.8m from floor to ceiling are not.

      • +8

        Yeah yeah 1.8 ceilings not normal..think we've covered that.

        I was attempting to help 'normalise' extremely bad situation poster is in, and direct towards help so they don't become one of the 2500 suicides Australia has each year.

        Just wanted to try undo some of the potentially life threatening damage done by some of the less than empathetic posts.

        • Buyer's remorse is not really applicable if the item purchased turned out to be seriously faulty. I feel that seeing it from this perspective is likely to dispirit him even more.

        • @derek324:

          'Normalisation' is an empathetic device.

          By undermining that, it feel's like your actual position is:

          'he doesn't deserve empathy/support, only self-loathing, because the faults were obvious'

          Knowing that it will dispirit him even more, you try and undermine someone's empathetic efforts?

          This sort of behaviour is the hallmark of a narcissistic personality, or worse.

          As for the buyer, there are many mental health issues or personality traits that can make them susceptible to the auction process.. adhd/bipolar/anxiety etc etc.. plus some people being more easily swayed by hypnotic efforts of auctioneer.. you don't know the buyer personally, so you can't really make a judgement on whether they deserve empathy for buyers remorse, which is all my comments here are about.

          but continue to undermine them, as you'll want to do.. if it makes you feel better :)

          merry christmas!

  • +1

    TL;DR
    Its unlikely that the agent/owner is going to take you to court to make you pay. Occasionally I see a property re-auctioned because the previous bidder coukdnt secure a loan.

    I wonder how they will enforce you to pay: they need to drag you to court get a judgement in their favour (considering the property is dodgy to a reasonable person such as the ozbargainers above)

    If you dont pay they need to drag you to court again to ask you to pay. If you dont have the money, how will they enforce it.

    The point is its not worth their while unless they are not able to sell the storage to anyone else

    • +3

      What about the deposit?

      • 1% of $380k? $4000 loss?

        • an auction is 10%

          1% is an offer holding

        • @snook: ahh hdamm so 40k lost…

          I'd fight it in court if I was OP and not buy it. sue whoever because of unsafe and violations of council/building codes.

          aka see a lawyer

        • Ouch

  • +4

    Op, if the bank hadn't declined your application, would you have felt that something was fishy? Let's see how things turn out, but maybe the bank's decline of finance could have been the best thing that happened to you.

    Did you take anyone with you to inspect the property to get any independent perspective?

    This is a very unfortunate example of the winner's curse.

    Hopefully you'll be able to extricate yourself from this mess.

  • -6

    If you can't pay, that's your out as far as the contract is concerned.

    Your contract will say, "subject to finance"

    And even if it doesn't, if you can't pay there's nothing they can do to force you to pay.

    • +8

      Your contract will say, "subject to finance"

      No it won't, this was an auction.

      And even if it doesn't, if you can't pay there's nothing they can do to force you to pay.

      Yes they can. They can keep his deposit, and then they can sue him for damages for breach of contract, or re-sell the property and seek the difference in price and extra expenses incurred.

    • +1

      Wow. Please dont listen to this guy. Auctions are unconditional so the onus is on the buyer to conduct due diligence. You cant just "not pay"

  • +1

    As others have said find a solicitor quickly. My guess is that if you decline to settle the property will be resold at Auction and the difference between your high bid price and the next sale price will be the amount you will be sued for (less any deposit you have already paid) If the private certified has indeed acted outside of the code you may have a forward claim, however if the works were carried out prior to any code (ye olden days) then there may be an issue that at the time the property was compliant. If not the certifier or his insurance provider may be a target for your solicitor. The form 1 statement (or your local equivalent) should have been on display at and prior to the auction, does this hold any clues?

    I am also perplexed at how the plumbing from the unit above intrudes into the rooms. This looks like it was once a basement that has been converted into an additional unit before the property / building was split into individual titles. It was probably ok when one owner held the entire block and tenants didn't complain, but it now appears a serious issue if a title has been created out of what was a basement.

    Good luck.

  • +1

    get a good lawyer and get deposit back, you have case to argue deceptive seller

  • +2

    OP bought for $380k where as agent put price guide as $440,000-480,000. This means they sold $60k less than their lowest expectations($440k). This sounds like absolute dodgy sell from seller and agent side. I am not sure if its legal to sell house with 1.8m heights but it looks like it not legal based on this discussion. OP, you inspected house and accepted ridiculous excuse of heights from agent. I wish you good luck but its mistake from your part as well as pretty low level business practice by agents. I think such agents should be banned from market.

    • +8

      'low level business practice'.. I see what you did there ;)

  • Bikies

  • +2

    Don't want to appear unkind but if you bought this property without fully inspecting it then you probably deserve the problems you now have. You've even got someone else's plumbing pipes visible in your bedroom ffs. Caveat emptor and all that.

    Your only hope is that the property was illegally developed in the first place and so should never have been brought to market. This being the case you could try to have the sale voided and the contract anulled.

  • +3

    "SOLD BY AB PROPERTY CONSULTANTS 0402961515/0410567777-MANY MORE WANTED"
    I don't think there would "MANY MORE" 1.8M ceiling height dwellings out there

    • +7

      These guys are lowering the bar.

  • +4

    … and now unit 8 and 9 are also for sale.

    'Unit' 8 in fact is going for auction this coming Saturday. I dare say we can make an event out of this…..?

    8/31 Harris Street Harris Park NSW 2150 http://www.realestate.com.au/property-unit-nsw-harris+park-1…

  • +7

    If it's indeed the Harris St property, my question is - how do you get into the shower?

  • During the property boom, a lot of people invested solely online and without inspecting the property because often it interstate, or a mining town etc.
    I personally wouldn't take the risk for such a big investment.

    Was the deposit 10%? Can you get it back?
    Is there a cooling off period?

    How much is the rental return?

  • +6

    I think OP is greedy based on my analysis

    1. Taunted as "cash flow +ve" by the agent with the return yield of 6% (sydney ~ 3-4%)
    2. the property has recently been strata titled (multiple sales over the last few weeks/months)
    3. unit 10 was initially a storage space or garage and has been converted to a "non approved" habitable area (see Building code Australia) and ?titled as storage
    4. I can only see rental history - in RP Data not buying/selling history
    5. OP did not do title search/strata search +/- pre-purchase building inspection prior to auction ?reason - to save $500-600
    6. Valuer to do full inspection unless something is very fishy. Big 4 banks normally use the contract price if your LVR is <80%
    7. Not getting solicitor to run through the contract of sale prior auction and do appropriate search etc… ?to save $1000

    if I were you, I will get a property lawyer ASAP to save you a big trouble.
    It may cost you $$$$ regardless the option you choose.
    I would post it on propertychat.com.au for advise.. not ozbargain!!!

    • +2

      My thought exactly and you only have to look at the nationality of the agents to realise what this is all about.

      Dodgy practice to earn a quick buck is way too common in India.

      The OP got sucked into buying that unit for whatever reason.
      But the OP is at fault too, not many people would want to live in a space with only 1.8m in ceiling height.
      I suspect the unit was modified in a way to target overseas students or new immigrants in Sydney who cannot afford normal rent or investors looking to make a quick buck.

      Is this even legal?
      Did the council even approve this?

      • +4

        I don't think real estate agents of any race are honest.

        4 week course and you get your business card and matching tie.

        It will always attract a certain type of person

  • Use the most powerful excuses the retailers like HN and DJ use here, pricing error. You meant to offer $350 not $350k.

  • +1

    I honestly hope you're able to get a satisfactory outcome from this.
    As others have said, get a proper solicitor.

  • +1

    Do you have the original certification document? What year of the BCA is it certified under? Find out, download the relevant bca year document, find the part that determines minimum ceiling heights. It's sold as a compliant dwelling so tell them (via a solicitor) to either make it compliant or void the contract.

  • +1

    Wow, im just over 180cm and having come from japan's showers and having to bob down abit for my hair to not touch the ceiling fan, I can not imagine living in a 1.8m high ceiling!

    Jeez - i even just finished building my first house and it's 30 courses , not 31 courses like the good old days (bumpedu p 3 courses from the standard 28 c) and so it's about 2.572 m high i think? Which means stretching out and just not being able to touch the ceiling (anything where you can, it usually is 28 course or so and therefore not raised). Just the thought of a ceiling the height of my head would be petty daunting!

    Can't help but good luck… one of the reasons I just don't get how people "buy" through property agents and buyers these interstate investments. people make money out of it but i just can't imagine buying sight unseen - a buyers agent, property building inspector etc is all they do and sign off on. I mean i guess if you've been with a team for awhile you could trust them, but first starting off it definitely seems alot better being able to buy within your home city. Albeit not as many opportunities of course (esp thos eof us living in WA).

  • +3

    Everyone please stop blaming OP, he is already in a terrible situation and came here for your opinion on how he can handle the situation. Please be considerate and stop bashing him!

    • +3

      Greed got the better of him… oh well.

      I reckon the OP should contact Channel 7 or 9 and warn people from buying such property.
      This is unethical and borderline scam.

      What's the national standard for ceiling height?
      Why did the council approve this?
      Does this involve corruption?

      • +6

        Why did the council approve this?

        May be a cousin of Saleem Mehajer was a council member.

        • Definitely!!!

        • @Turd: But Saleem isn't asian? Still is silly and greedy I guess

  • Assuming settlement is subject to registration/occupation certificate, then settlement won't be happening at all, because who on earth would issue an occupation certificate for a property that clearly doesn't comply with relevent building codes.

    Problem is, you'll have to wait out the time allowed in the contract to obtain registration/OC, before getting out of the contract.

    If the vendor's conveyancer/solcitor does issue an OC, then i'd be straight onto council, because clearly it shouldn't be issued.

  • +3

    GET A LAWYER MATE!

  • Huh, so the way to get rid of a dodgy property is via auction with no repercussions? Interesting.

  • Maybe Salim and his mates approved it?

  • +4

    I just noticed that there is a Burberry check baseball cap hanging on the TV in one of the pictures. OPs tenant may be, A CHAV!

    • What's a CHAV?

      • +3

        Chavs look well smart in their Burberry. Think of the lads you see in Sydney wearing Nautica and polo caps. They kind of look like that in England but wear Burberry and are way more crazy. They also love stone island jackets and G Star jeans.

        They aren't just havin a bubble wiv ya mate if they ask for ya bees and honey.

  • +2
    • +4

      Sounds like a scam to me. It really sounds like everything was set up for the workers to knock down the wrong house. 15 years with incorrect address number on both properties? Unbelievable.

      The owner preferred to see the rest of his house knocked down and call the police than stop the demolition workers. Why didn't he just stop them? Terrible excuses covering dodgy motives.

      • +1

        It is a bit odd.

        Maybe he wanted to demolish anyway, and thought this way I get my neighbor to pay for it, ill let them finish

  • +4

    Get proper legal advice rather than asking on a bargain hunting website.

  • +3

    Everyone is suggesting to get an unconditional approval from Bank, have Pest Inspection done, get a Solicitor to go through the contract before the Auction. How practical is it? Most of the Auctions you will lose to some investor who doesn't care about the money. That means you might have to go through 15-20 properties even before you actually win one. How do you guys do it? Target one property and bid the hell out of it? :-o

    • Exactly, and also the inspection and auction time is too short to have so many checks done prior to auction day.

    • +1

      Rent4lyfe use excess money to buy more bargains and amex cards!!!111111

      • Didn't you hear what those TV adverts and property investor seminars say though - "RENT MUNNY IS DEAD MUNNY!!!"

  • +1

    The contract must contain certain things in order to be valid : a section 149, certificate of title, and a strata plan. If they're still getting the strata plan, your lawyer can get you out of the contract. So run to a lawyer and cancel the contract before they lodge it!!

    • -1

      The contract has to contain the strata plan if the strata plan is registered. It looks like the strata plan was not registered at the time of the auction/contract exchange, and the contract contained a clause saying it would be.

      This is how all off-the-plans units work, and there is nothing wrong with it.

      Also just because a required document is missing doesn't mean you can automatically get out of the contract.

      • +1

        Even if it's not registered, it has to contain a strata plan. Even off the plan contracts must do that, although the developer may change the plan later on. So the technically is whether it contains a still unregistered strata plan, or no strata plan at all.
        If the contract includes the strata plan + all the needed documents, then the OP is screwed, and it'll get very expensive. Note that occupancy certificate is not one of the required documents to make a contract legal.

        • No it doesn't. Regulation is here. You only need the strata plan in the contract if it is lodged or registered with LPI.

          An off-the-plan contract would usually have some sort of draft of the strata plan or the proposed plans, but it not a required document.

  • -7

    why are people still commenting, OP is obvious troll

    havent heard from them since

    • +2

      Troll or not, the comments might help out someone else in a similar position or warn others off doing stupid shit.

      And it passes the time between coffee breaks…

      • +4

        and no good deals today

      • +4

        Its not a troll … Also the reason i posted here is may be someone will get even a bit of idea and knowledge it will be helpful… I am in such a stress mode that i cant explain.. dont want anyone to go through this..

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