Are you a home owner looking to take full advantage of the hot NSW property market??
Well, before you do you should take extra caution in ensuring you have a complete Contract for Sale prepared as one Sydney home owner has learnt a very unfortunate lesson.
When you are looking to sell a property in NSW you will need to instruct a solicitor or conveyancer to prepare a Contract for Sale on your behalf.
Real Estate agents cannot list the property for sale until they have a complete Contract.
The matter of Samuel v Daher; Daher v Samuel [2022] NSWSC 421 dealt with the situation where an exchanged Contract did not include either a swimming pool compliance certificate or a certificate of non-compliance.
These certificates are prescribed disclosure documents and the responsibility lies with the vendor to have these included in the Contract. With these documents not being included in the contract, the purchaser sought to rescind the contract and walk away, ultimately the matter came before the NSW Supreme Court.
The Court held that as the Contract didn’t include this one document the purchaser had the right to rescind the Contract. The vendor also had to pay the purchaser’s legal costs of bringing the proceedings before the Court.
The way the vendor sought to skip around the legislation was to include an additional special condition in the contract that gave him the right to provide the certificate to the purchaser on or before settlement. Justice Black’s judgment revealed that the vendor, by including this special condition, purported to modify a particular provision of the law which was deemed void and therefore not enforceable by the vendor.
Ultimately the decision in this case revealed and reaffirmed that prescribed disclosure documents need to be annexed and included in the Contract at the time of exchange. One cannot simply attempt to curve legislation by including conditions into a contract that these documents will be provided after exchange as this is contradictory to the obligations and rights conferred by both the Conveyancing Act 1919 (NSW) and the Conveyancing (Sale of Land) Regulation 2017 (NSW).
Now although it may seem as though a simple pool certificate does not carry any weight or importance, it, like many other documents, must be attached to a contract for sale.
It is important that you obtain advice as to what documents are required to be included in your contract regardless of whether you are buying or selling to ensure you don’t end up in a similar situation as this unfortunate vendor.
Mbt Lawyers have a dedicated conveyancing department devoted to providing high quality legal advice and services in an array of conveyancing matters led by Partner, Stacey Price.
Should you require any assistance or have queries in a conveyancing matter please contact Stacey and her team on (02) 6648 7600.
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