When you sell property in Victoria, there are a number of legal obligations which you are required to comply with.
Failure to do so may render any Contract for the sale of property, voidable at the option of the purchaser, at any time prior to settlement.
At SDA Conveyancing, we know what these obligations are and we know how to take the legal work out of your hands.
After all.... that's what you are paying us for.
We know how to guide you through the processes from beginning to end.
We deal with all aspects of the property sale including:-
Ensuring that the Contract of Sale is executed correctly and exchanged between parties;
Monitor to ensure Contract Conditions are satisfied and full deposit monies paid;
Arranging for transaction to be created in the new platform of Electronic Conveyancing known as PEXA, in readiness for settlement;
Attending to compliance with State Revenue Office Duties On-Line requirements;
Perusal and approval of Statement of Adjustments including confirmation of rating and outgoings position with relevant government authorities;
Notifying relevant rating authorities of change in ownership of property;
Providing you with detailed Settlement Report and Statement of Monies Paid and Received.
MATERIAL FACT GUIDELINES – WARNING:
Changes to the Sale of Land Act now make it an offence where a vendor knowingly and actively conceals defects. A material fact is a fact that would be important to a potential purchaser in deciding whether or not to buy a property (dwelling or land), or which may influence a purchaser to buy land at a certain price. The maximum penalty for knowingly concealing a material fact when selling land is:
· A fine of over $19,000.00; or
· Up to 12 months imprisonment
This extends to ALL land including, residential, commercial and rural land.
While it is acceptable to present a property in a good condition, it is illegal to cover up, misrepresent or in any way mislead a buyer about its true condition.
Vendors or agents who have knowledge of material facts cannot rely on purchasers becoming aware of them through making ‘usual inquiries’ or following the Due Diligence Checklist to avoid disclosure. General examples of material facts about land which are known to the vendor or agent but which may not be obvious to a potential purchaser include (but are not limited to) circumstances where:
· prior tests or investigations have revealed (or the vendor or agent otherwise knows of) a defect in the structure of the building, a termite infestation, combustible cladding, asbestos (including loose-fill asbestos insulation) or contamination through prior uses of the land,
· the underlying cause of an obvious physical defect is not readily apparent upon inspection (for example, whilst a large uncovered crack in a wall would be obvious to a purchaser upon inspection, the underlying reason for the crack, such as defective stumping, may not);
· there has been a significant event at the property, including a flood, or a bushfire,
· there is a history of pesticide use in the event the property had been used for horticulture or other agricultural purposes,
· there are restrictions on vehicular access to a property that are not obvious during a property inspection (such as truck curfews or where access is via an easement that is not apparent on the Certificate of Title or plans),
· facts about the neighbourhood surrounding the property which may not be immediately apparent upon inspection (such as sinkholes, surface subsidence, development proposals) that would likely affect the use and enjoyment of the property to a greater extent than the usual disturbances and inconveniences of occupying land of the kind and in the local area of the land being sold,
· building work or other work done without a required building permit, planning permit or that is otherwise illegal,
· the property during the current or previous occupation has been the scene of a serious crime or an event which may create long-term potential risks to the health and safety of occupiers of the land, such as:
o extreme violence such as a homicide
o use for the manufacture of substances such as methylamphetamine, or
o a defence or fire brigade training site involving the use of hazardous materials.
There is a community expectation that homicides that have occurred at a property be disclosed to potential purchasers. Other known acts of extreme violence should be disclosed if a potential purchaser makes a specific enquiry. While these circumstances may not be a physical barrier to the use of the property, they may materially affect a purchaser’s decision to buy the land.
Defects and damage arising from prior significant events of the kind specified above, and contamination from prior uses of the land will not be considered material if they have been fully remediated, and no further repairs or other works (including ongoing work) will need to be carried out in the future. However, if a potential purchaser asks a specific question relating to defects and damage arising from prior significant events, or from contamination arising from prior uses of the land, those questions must still be answered by the vendor fully and frankly and to the best of the vendor’s knowledge.
Positive enhancements or improvements made to a property such as renovations are likely to be disclosed in the course of marketing land for sale. Positive information about land for sale, if withheld, is not of its nature the kind of information which is likely to “induce” a sale.
WHEN TO DISCLOSE MATERIAL FACTS:
Estate agents (or vendors where they are not using an estate agent) should disclose all known material facts to potential purchasers as soon as they indicate that they are considering purchasing the property. They must also make continuing disclosure if further material facts become known until the property is sold.
Generally, material facts will not be concealed from purchasers if they are disclosed:
· in marketing material or information statements; or
· in a section 32 statement or contract of sale; or
· on a physical inspection of the property where they are clearly visible; or
· by specific disclosures made to particular purchasers in the course of negotiations; or
· before the start of a public auction.
However, specific disclosure of a material fact to a particular purchaser will be required where the vendor or agent knows that the material fact has not come to the attention of the purchaser by other means. Vendors are not required or expected to carry out tests and investigations of the property to determine if there are any unknown problems that ought to be disclosed, other than as may be required to prepare a section 32 statement.
However, if a potential purchaser asks a vendor or a vendor’s agent a question about a property, before that property is sold, the vendor or the vendor’s agent must answer that question fully and frankly and to the best of their knowledge. If the vendor or a vendor’s agent has no knowledge of the matters raised by the potential purchaser, they can advise that potential purchaser that they do not know.
WHAT SHOULD VENDORS DO:
Vendors should prepare the property for inspection by potential purchasers without taking any steps to hide defects or any other important feature which would otherwise come to the attention of someone doing an inspection. They should carefully consider all information known to them or disclosed to them by their solicitor or conveyancer after having conducted the usual searches and inquiries for a section 32 statement and disclose any known material facts to their estate agent prior to the marketing of the property. Vendors should answer all inquiries about the property put to the vendor by purchasers through their agent as fully and frankly as possible.
If vendors disclose material facts to their estate agent for the purpose of answering questions asked by potential purchasers, acting reasonably and diligently, they have discharged their obligation to not knowingly conceal material facts, and the burden of disclosure of those material facts falls upon the estate agent.
If the vendor is selling the property without an estate agent, the vendor should answer all questions about the property put to them by purchasers as fully or frankly as possible in the circumstances.
SDA Conveyancing will not be held liable for any failure or non-disclosure of the above type information by the vendor or the selling agent. Our detailed pre-sale Questionnaire aims to avoid potential non-disclosure issues.
FOR MORE INFORMATION: Please contact Consumer Affairs Victoria direct or visit:
Tel: + (61) 03 9455 2011
Mobile: + (61) 0417 146 356
Email: sue@sdaconveyancing.net.au
Web: www.sdaconveyancing.net.au and
Skype: sdaconveyancing88
Mailing Address: P O Box 312, Heidelberg, Vic, 3084
Appointments: By Arrangement Only
Firm: SDA Conveyancing - licence No. 000778L
Director: Sue D'Alessandro - Licensed Conveyancer No. 000777L
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