28 May 2018
One of the most widely misunderstood elements of real estate is what condition a property should be in at settlement or possession.
What does ‘buying as inspected’ really mean?
In short, a property is sold “as inspected”. If there was dust on a ceiling fan when you first inspected before contracting to buy then the fan can be dusty at settlement. The same goes for a dirty oven, a blown light globe or a squeaky laundry door. If it was dirty, blown or squeaky at inspection before purchase then so it should be at settlement.
Buyers will typically expect that the property is handed over to them spick n’ span and thankfully most house-proud sellers leave their homes in an appropriate condition when moving out, however legally there is no obligation for them to do so.
What should you expect at settlement?
If you’re buying a home, it’s smart to have a realistic expectation of what to expect at settlement.
Unless otherwise specified in the contract, the seller is under no obligation to have the property professionally cleaned for settlement and it is surprising how few buyers ask that such a condition be included.
The seller’s only obligation under the contract (Clause 6.1(b) 2 of the General Conditions) is to “…remove from the Property, before possession, all vehicles, rubbish and chattels, other than the Property Chattels.”
Many modern contracts to purchase include provision for essential plumbing, gas and electrical components to be working at settlement. Hence, if at settlement the toilet cistern leaks then the seller ought to make good because the contract says so.
It is trickier when, for example, a telephone jack doesn’t work at settlement. It is not strictly electrical but it is probably reasonable for a buyer to assume that it was functioning at inspection. This is partly because, caveat emptor (buyer beware) has all but disappeared according to some legal practitioners. The onus is probably on the seller to disclose (in this case) that the telephone jack didn’t work.
How to ensure you’re happy with the property at settlement
My view is that buyers need to take reasonable steps to ensure the property they have bought will be presented to them in a condition they are satisfied with.
This can be achieved by either contracting with the seller to guarantee it and/or being more thorough when inspecting the property in the first instance. Ask the agent if it’s ok to turn on taps, flush loos, flick switches, open and close doors, open the oven, turn on the dishwasher and so on before making an offer to purchase.
Buyers ought to have a realistic expectation of what to expect at settlement when buying an established home and acknowledge that opinions of presentation are subjective.
Speak to our market experts on 9475 9622 to discuss about your property concerns
22 March 2017
Kevin Eddy via Domain.com.au
Deal with caveats and encumbrances early
A major cause of anxiety that can cause settlements to be delayed are undetected legal caveats and/or encumbrances on a property. These must be legally lifted before you can settle.
Ideally, you should aim to buy a property with no caveats or encumbrances upon it in the first place – you can uncover these by instructing your solicitor or conveyancer to carry out a title search prior to purchase, or at the very least before the contract goes unconditional. If anything crops up, your solicitor/conveyancer should instruct the seller’s legal counsel to resolve the issues – or you can simply walk away from the purchase if you prefer.
Make sure the money is in place
One of the most common reasons for settlements being delayed or failing altogether is the funding not coming through. Mortgage approval is usually dependent on the bank’s valuation of the property, which may not take place until late in the buying process. If the valuation falls short, you could be in big trouble.
Results Mentoring property coach and experienced property investor Brendan Kelly says you should make finalising your funding your top priority after signing the contract of sale.
“If you’re on a standard settlement of between 30 and 90 days, get your loan approved once you’ve signed the contract or gone unconditional,” says Kelly. “Make sure it’s all done well in advance of settlement.”
Even better, choose a bank that will pre-approve your loan or accept your evaluation. A mortgage broker can help you find a lender who will do this, as well as help you find the best loan for your circumstances.
Be proactive as D-day approaches
You may have a great conveyancer or solicitor, and the bank may have approved your loan, but you should also take responsibility for ensuring the settlement goes ahead as planned. You should be proactive, albeit not pushy, in ensuring that things are progressing well as settlement date approaches.
Kelly recommends chasing up your conveyancer/solicitor, your bank/mortgage broker and the vendor’s solicitor or real estate agent between seven and 10 days before the appointed settlement date.
“Call, don’t email, the key players, and ask the following questions,” says Kelly.
- Is everything on track for settlement on [this date]?
- Is there anything that is missing that could stop settlement?
- Is there anything you need me to do/anything I can do to help?
“Follow up your calls with emails confirming the conversations. That way, if there are any problems, you have evidence that you’ve ‘done your part’,” he adds. “This also helps counter any demands for additional funding or payments from your end if things go wrong.”
Kelly adds that you should repeat this process three days out from settlement as a final check. The day before or on settlement day is often too late to resolve any problems and settle on time.
Proactive preparation should mean your settlement goes smoothly, but don’t panic if it still doesn’t go to plan. There’s usually a grace period to resolve any problems, and nine times out of 10 all the parties involved will pull out all the stops to make sure settlement goes ahead within a few days.
To discuss any settlement matters please give Conveyancing HQ a call on 08 9478 6677