Builder Changed Look of Balcony on off-The-Plan Apartment. Now I Don't Want It. Settlement Next Week

activ8newbs on 24/10/2019 - 08:07
Last edited 24/10/2019 - 09:22 by 1 other user

Hi all,

Trying to research an issue on behalf of a friend.

He purchased an off the plan apartment a year and a half ago. Was supposed to be built 6 months ago but it's about the 3rd time builder has delayed.

Finally, builder called saying we're close. Expecting settlement in the next couple weeks.

My friend went for a final inspection and was shocked to see that the balcony area is dramatically different to what was shown in the promotional materials. In front of the balcony, throughout the length of it, the builder has inserted vertical grey bars (exactly like a prison cell).

This was never meant to be.

The issue is that as far as I'm aware, the contract specifies the floor plan…which is still the same. It's just an addition of these vertical bars.

After raising it with the builder, the builder advised that the neighbours were worried about privacy so they insisted that the entire east side of the apartment complex have those bars put in place.

Deposit of $25k has been placed.

Additional deposit of $80k due on settlement. Settlement is fast approaching. Although date bit yet locked in, it's 2 weeks away at most.

What can we do? This is a deal breaker. The apartment loses its sex appeal and this is just so wrong on so many levels.

Can someone please guide my friend? I'm worried that settlement is fast approaching…and I'd we hit settlement the builder may just wash his hands and leave.

Thanks
US1

Financial

Comments

      • CocaKoala on 24/10/2019 - 15:19
        +4

        Indeed. The OP did not post an MS paint diagram of the balcony, which explains why some of our highly experienced solicitors haven't contributed here.

        • ntt on 24/10/2019 - 16:23
          +3

          I think it's NSFW, that's why he didn't do it.

  • Mike3285 on 24/10/2019 - 15:08
    +3

    This is what happens when you buy off the plans… The vertical bars are provided for privacy which is most likely instilled as a DA Condition from Council.

    If it's not consistent with the DA approved plans request for a copy of the Section 4.55 Stamped Plans to review the changes (more than likely). (Info based on NSW, varies for different states)

    NEVER rely on on promotional drawings/ 3D perspectives. Always rely on the stamped approved plans from Council.

    Not much you can do if the Builder has built accordingly.

  • timcc0208 on 24/10/2019 - 15:36
    +1

    Builder did nothing wrong with this as long as they built as per the endorsed plan. Off the plan buyer should really understand that. Otherwise, don't buy any off the plan.

  • obiwanmy on 24/10/2019 - 15:43
    +14

    I don't think you have to worry too much - it is your friend's issue anyway :P

  • vikvance on 24/10/2019 - 16:16

    You can choose not to settle, but then you'll be subject to the penalties outlined in the contract. Usually, this will be loss of deposit, plus additional penalities specified in the contract.

    Like others, I would also strongly recommend that you talk to your conveyancer/lawyer to understand the exact consequences of not settling.

    • Cartman2530 on 24/10/2019 - 17:03
      -1

      Hopefully there is a clause in the friends contract that says settlement subject to finance. i wouldn't go into any big financial loan agreement without making sure that it was there, as then if the bank revalues the property (which in this current climate they very well will) and denies the loan they can walk away. Then they aren't stuck trying to find a way to pay for it, but may lose their deposit.

      • djkelly69 on 24/10/2019 - 17:29
        +3

        No off-the-plan contracts have subject to finance clauses, and they would laugh at you if you requested one.

        • Cartman2530 on 24/10/2019 - 17:42
          -1

          i remember more than a few websites that mentioned those specific clauses in relation to off the plan apartments. could they have been mistaken?

          would things be different now in light of how mascot towers and opal towers turned out?

          • djkelly69 on 24/10/2019 - 18:00
            +4

            @Cartman2530: There would be clauses that say you lose your deposit if you don't settle, but not subject-to-finance clauses (which basically say you can get out of the contract if you can't obtain finance).

            Vendors won't allow them in off-the-plan contracts because (among other reasons), they can't obtain finance for the development if all of the buyers could just walk away if prices dropped or they couldn't get a loan for whatever reason.

            Mascot and Opal are a completely different and unrelated issue, so no, there have not been any changes in this area because of that.

  • chillwok on 24/10/2019 - 16:37
    +2

    you sure know alot of detail about your friends problem. you should ask your friends conveyancer/lawyer for your friend.

  • oscargamer on 24/10/2019 - 18:23

    didn't read anything other than the OP

    my only comment - what does your contract say? what does your conveyancer/solicitor say?

  • Baysew on 24/10/2019 - 19:51
    +3

    Tell friend to ask one of their smart friends.

  • footyboy on 24/10/2019 - 21:44
    +5

    Hahaha this is awesome. Judging from your previous posts this sounds like perfect karma.

  • stumo on 24/10/2019 - 21:51
    +5

    I know an actual AMG A45 has sex appeal, but does a A200 AMG have sex appeal too?

    -Asking for a friend.

  • DaveT217 on 24/10/2019 - 22:04
    -1

    Your settlement agent/conveyancing agent would be the best people to ask advise from at this state. Hopefully they will find some way around this situation. Worst scenario you will have to give up your deposit in order to get off. These builder/seller are very hard to win against.

    Also just a word for everyone going to comment, even if the OP got in this situation him/herself, you don't have to point it out and make a joke about it. No one would ever want to get themselves in problem like this.

    • Dont Care on 25/10/2019 - 07:26

      what position? the position is losing sex appeal. what position do you recommend

  • jacross on 25/10/2019 - 07:44
    +1

    Tell your friend to speak to their solicitor. The person who has literally decided to specialise in property and conveyancing law as their career.

    This is exactly what they are there for.

  • [Deactivated] on 25/10/2019 - 07:52

    Another day another post by unistudent1

  • DiscoJango on 25/10/2019 - 08:25
    +8

    hi, im typing this post on behalf on my friend. my friend has an ozbargain account but they prefer to relay their responses thru me.

    my friend just wanted to say hi.

    • BartholemewH on 25/10/2019 - 16:04

      Is your friend's name John?

      • DiscoJango on 26/10/2019 - 09:36

        And his Surname is Smith, do you know him?!

        • BartholemewH on 26/10/2019 - 18:51

          Sorry, my friend John is Doe. He has an OzB account but also prefers I post on his behalf. He says hi to both you and John Smith.

  • bremo on 25/10/2019 - 08:59
    +1

    So your friend got a free privacy screen!! Good for him.

  • [Deactivated] on 25/10/2019 - 09:04

    Think about the bright side.

    The privacy screen will help conceal all sorts of building problems.

  • Zondor on 25/10/2019 - 09:22
    +1

    God these comments, I might as well be on Reddit.

  • Hoobz on 25/10/2019 - 09:55

    Pic needed.

    For sure

  • Skramit on 25/10/2019 - 13:12
    +1

    Psssh. There's nothing a circular saw or angle grinder cant fix after settlement :D

    # OzBargainerSolutions
  • shandawgg on 25/10/2019 - 13:19
    +1

    Hi mate,

    What State/Territory? Some State legislation will provide protections against changes to the plans/specifications. If there are changes to your plans as per the contract, then some States require the developer/seller to provide the buyer with a statement of changes (called further disclosure statement in Qld).

    There is no industry standard contract for an off the plan sale so you will need to review the terms regarding variations to the property. Off the plan contracts are heavily weighted in favour of the developer (i.e. automatic extensions for any seller delays, they can reduce the size of the lot without your consent (though usually not more than 5%), substitute finishes and chattels with lesser valued finishes…)).

    TLDR: check State law and your contract of sale.

  • PAOK11 on 25/10/2019 - 13:23

    There is no easy way to get out of a off the plan purchase outside of the cooling off period. No point asking OzBargain either because no-one here will be able to help. Your friend needs to satisfy the following criteria to have a chance of voiding the contract 1. He/she needs a healthy bank balance 2. Needs a competent property lawyer/barrister 3. The gall to see out the proceeding to the very end.

  • Traptor88 on 25/10/2019 - 14:01

    You should look at the planning permit issued by the Council to see if the privacy screening was on that or if the plans have been amended to show it. If not, you can remove the screening yourself after settlement and no one can say anything. Otherwise you can complain to council that the apartments haven’t been built to the planning permit and the builder will have to remove it or amend the plans which may cost a bit to do.

  • HeWhoKnows on 25/10/2019 - 16:22

    My advice to OP is to just stay out of it.
    If OPs friend is so concerned they would do thier own research.

    Anyway this is one of the problems with off-the-plan purchases.
    Builders write in the contract that they can change anything.
    Tough cookies Im afraid.

    OPs friend should start by reading the contract they signed.
    As we are not privy to its contents we cannot advise even if we were a lawyer.

  • ihbh on 25/10/2019 - 20:31
    +2

    Op, when you asked for comments about your investment property strategy, did you understand any of my points?

    Things to consider:

    • Are there a lot of other apartments being built in Rouse Hill? If so, then you'll find rental demand soft and you might not get the rent you were planning.
    • Is $550k a good price (bargain), bad price (overpaid), or the right price at the moment? How have you ascertained this?
    • Is it likely to be a good price in a couple of years time when interest rates rise and more apartments have been built and owners/investors are looking to sell because they can't afford to hold the property?
    • How likely are you to get the finishes promised (what's the developer's track record)?

    I assume it should be worth over $600k (New train station being built, new shopping centre, and new hospital)

    • The events you've put in brackets, are you the only one who knows this, or is it widely known? If so, it should be already factored in the price, so this will not be the reason the property should be worth over $600k.
    • What are the alternatives? If you put the money in the bank, or invested in an indexed share fund, how would the returns compare to buying this apartment? Also, why have you restricted yourself to Rouse Hill and Sydney? For example, the market is still pretty weak in Perth and weak and declining in Brisbane. How would an investment there compare?
  • yellowfever on 25/10/2019 - 21:40

    Firstly, check Contract of
    sale documents and drawings that you signed. Look for the sunshade/screen on the drawings and specifications.

    Secondly, locate or obtain a copy of the endorsed town planning (council) drawings. It would be stamped set of drawings. Usually you can download this from the internet if you have the Planning Permit number. Again, look for the sunshade.
    The Planning Permit may also stipulate (in words) their requirements for any shading/screening or any area of the building.

    If there is nothing shown or written, you have good grounds to fight it. But it will be a lengthy process.
    You need to find out if the Builder introduced this or it was instigated by the Council. They can't add or amend stuff after drawings have been stamped. Unless the builder applies for secondary consent from the council to add or amend details, and the council approves it via secondary consent.
    I may have missed a few details, but that is how I understand it.

  • godofpizza on 25/10/2019 - 23:06

    i would like to see the OP/OP's friend or drop dead fred take the builder to court and present the pic of the new apartment that has lost it sex appeal.

    where else are you going to use hand cuffs on?

  • WhoGiveAShxt on 26/10/2019 - 00:07
    +2

    Seek advices from your conveyancer/lawyer/solicitor, not from random people online.

    But I also reckon op friends' options is very much limited. Either you lost what you have paid at least or accepting what you getting. here is the reasons:

    Off-the-plan contracts are very likely written by well-paid lawyers to protect the builder, not the buyers, which means they can (profanity) you up lawfully and very little things you could do about it. Some of the contracts I read myself are the size of the bible. It doesn't matter anyway, because most of the buyers do not aware of what they sign up for and it would be too later when they found out. Just like buying a off-the-plan apartments.

    Anyways, good luck, because your friend is going to need a lot of it.

  • monkeyfood on 26/10/2019 - 08:28

    the building has a lifetime of about 5-7 years whenever warranty finishes so it wont be long until there will be a jailbreak

  • trapper on 30/10/2019 - 15:46
    1. Buy. 2. Remove bars?
    • HeWhoKnows on 31/10/2019 - 22:53

      Strata will not allow it.
      Changes the look of the building.
      Not an option

  • HeWhoKnows on 31/10/2019 - 22:48

    Hmm This line says it all…

    My friend went for a final inspection and was shocked to see that the balcony area is dramatically different to what was shown in the promotional materials.

    "Promotional materials" are not final plans Im afraid.

    All your friend saw was concept drawings.
    They are just an artists impression. Nothing more.
    Concept drawings are always subject to change for numerous reasons.
    One of them being that the builder may need to have the plans ammended.
    Clearly this was the case to gain approval.
    So its all or nothing.
    No way out Im afraid. Its in the contract.
    Next time dont buy off the plan
    You never know what you are getting nor the quality of build.

  • ihbh on 10/11/2019 - 08:44

    It's been over two weeks since you posted; did your friend end up settling?

    • activ8newbs on 10/11/2019 - 10:11

      Unfortunately yes, but he's still adamant to take them to court :/

      He accepts he can't do anything RE: Apartment build. But he wants to take them to court for stress and damamges

      • ihbh on 10/11/2019 - 10:53

        How much is he look8ng for?

        • activ8newbs on 10/11/2019 - 11:47

          Hasn't decided yet. Tbf, I don't think he's gonna end up pursuing once he realises the cost of it all.

          He claims he's just gonna get a couple lawyer friends to help and not actually pay a lawyer to represent him.

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