澳洲Australia property buyer trespassing if open open carport be


在澳大利亚 The pool at of an IP needs to be resurfaced (or so the pool doctor says), the cost was estimated to be $10K ($10,000), after recoverying from my impresssion of a cat coughing up a fur ball, it just seems far too much. Its just a standard poo I need some advice regarding a property purchase. Property - semi-detached house Bedrooms - 2 Condition - average needs internal reno to modernise Street - one of the best in suburb Location - excellent Close to schools - yes Transport - 50m


Hi, the property we are buying has a structural defect which is to be repaired by the seller's repairer. Offer and acceptance were already signed and it will be 14 days before settlement. The sale is subject to the seller repairing the carport defect ( which is open to the public, because there is no gate on the property.

Because some part of the defect to be repaired is in the ceiling space or concealed by the carport ceiling, it will be impossible to know if the repair is done in this concealed area if we inspect the defect post-repair, after the repair is done.

Just to make sure repair is done in this concealed area, can we, the buyer, be present during the repair work? Only the repairer will be in the property during the repair and we are planning to attend during the repair. We were told that even if its only 14 days before settlement, we , as buyers, cannot be in the property's carport (open to the public) to attend this repair , because 'technically we are not supposed to be there; not legally allowed; trespassing?

But the carport where the repair will be done is open without a gate and without enclosure ( the whole property's outside is open to the public) and we are only attending just to make sure that the needed repair are carried out even in the defect areas which are concealed by the carport ceiling ( the area within the carport ceiling and carport roof.

Can anybody tell us whether we can be in the property or not. The settlement /sale is now a sure thing to happen, so in 2 weeks time, the property will be ours, but we want to make sure is that the repair is completely done even in the concealed areas of the defect. After repair, it would be impossible for us to know whether the concealed defects were repaired ( even a building inspector/structural engineer will not be able to know). Please help with your knowledge on this matter.  

评论
Sorry , about the title; I mistype it.
Correction: buyer trespassing if attending repair of open carport 14 days before settlement?  

评论
If it's on private property, then yes, you'd be trespassing. When you say "open to the public", do you mean that it's a park at the local supermarket (which is truly open to the public), or, as I suspect, that it's on private property but there's no obstacle preventing you from walking up to it?

If the latter, the obstacles are irrelevant. You can't enter onto private property (defined by the boundaries of the land, not the buildings) without an invitation, except in specific circumstances outlined by law - and this isn't one of them. ;)

Having said that, common sense dictates that a better approach than a strictly legal approach would be to talk to the vendor and request proof of the repairs being done, eg a receipt for the work, or photographs of it being repaired. Given that the repair being conducted is a condition of the contract, then asking for proof that this condition has been satisfied doesn't seem unreasonable.  

评论
Perp, it is private property but anyone can enter the carport and its outside grounds.

We will try to ask the repairer to take photo after the repair but we can only hope he will grant our request. Otherwise, there is nothing we can do and just believe what it says in the repair invoice/receipt.

part of the defect of the carport post is within the ceiling space of the carport which cannot be checked after repair. A receipt of the work done cannot guarantee it was done, as the repairer is hired by the vendor, who maybe tempted to cut or minimizs repair costs by not doing the repairs within this concealed area.  

评论
Why could the repair NOT be checked by somebody after it is repaired? How was the problem picked up in the first place?

Knowing what the problem is would be helpful. You COULD find out when it will be done and wait outside, but as Perp said, communication is the key to this. If the vendor is indeed paying for a repair, they should be happy to have you see the invoice or otherwise satisfy yourself. If not, then what are they hiding?

And if that is the case, if the repairman is a qualified tradesman (electrician, builder???) they surely want to protect their backside from trouble down the track.

It sounds like you suspect they might get Uncle Tom to pretend to do something in the ceiling space, whilst not doing anything. Is this your concern?

Your solicitor should be able to organise entry or confirmation of this.  

评论
needtolearn said: ↑
repaired ( even a building inspector/structural engineer will not be able to know). Please help with your knowledge on this matter.Click to expand...
Well done a very simple way is prior to settlement maybe 2 hours before
everyone gets their hands on your money,turn up on the site and have a look
if it's not complete just delay the settlement,and tell them upfront that unless this is fixed there will be no settlement,or they get the cheque book out and pay the difference:),that's the only time you have total control in the few hours prior to settlement,this has worked for me many times..  

评论
needtolearn said: ↑
Perp, it is private property but anyone can enter the carport and its outside grounds.Click to expand...
If you just mean that there's no fences, anyone can not enter - not without committing the crime of trespass.
wylie said: ↑
Why could the repair NOT be checked by somebody after it is repaired? How was the problem picked up in the first place?Click to expand...
Yes, this whole issue concerns me, too. If it's something that you say a structural engineer couldn't detect, then why are you worried about it? :confused: And how did you ever find out about it, then? :confused:  

评论
Maybe I am simplifying this, but have you asked permission to be there to inspect part of the repair?

it is a pretty reasonable request and I would expect most vendors to have no worries with it, especially if it is out in the front yard and you would not need to enter the house. Just ask via the agent or solicitor.

Or, as others say above, just ask for proof. However also as above, if someone can pick up a defect in an inspection then surely someone can look for that defect a second time after the repair.  

评论
Thanks, for your helpful comments.

Even if , now , we have decided not to attend during repair, after our settlement agent told us it is trespassing, I am just making this post to answer some of your questions about the situation just for the benefit of people who may encounter this same problem.

The carport post which consists of lower brick pier and timber post as upper half, was initially leaning and not straight, with the base of brickpavers under and around it having subsided, the timber post connections to the brick pier and base plates having opened up as gaps, the timber post's upper connections to the ceiling probably opened up because one can see the ceiling around the timber post where the latter enter the ceiling, the ceiling has craked slightly open.

One can presume that the timber upper connections concealed in the ceiling space would have opened up also, up to a degree. This is the part which will not be open to check before and after repair; the only time this can be checked is during repair.

The repair company is a property maintenance company who employ others to do the work. I understand that the roof carpenter and the repair company who is not a builder will supervise the work.

So , as of now , we will just be trusting them and hope proper repair is done in the ceiling space's timber post connections. If it turned out in the future that this was not done , then we cannot chase them for it because a builder was not the one who did it.

The real estate agent is not reliable; time is running out.  

评论
instead of trusting them (which you have indicated you dont), why not do what has been suggested to you? ask the owner if it is ok if you're present and also ask for a copy of the invoice showing it has been done.

sometimes the simplest solutions are the best. has the owner indicated that they will not let you be present?  

评论
needtolearn said: ↑
The real estate agent is not reliable; time is running out.Click to expand...
Settlement is subject to the repair - time isnt running out. You simply refuse to settle until the special condition is adhered to.

Have your solicitor request documented evidence of the repair being completed, and instruct no settlement until provided.  

评论
regardless of legality, amazing things happen when you ask politely.

just saying :)  

评论
Ocean Architect said: ↑
regardless of legality, amazing things happen when you ask politely.

just saying :)Click to expand...
They sure do - however asking nicely sometimes isnt enough.

Case in point, my latest IP settled last thursday. I rang the agent Wednesday to book the pre settlement inspection. He was not aware settlement was happening and as such had not arranged for the lawns to be done (and subsequently said he would arrange it).

On settlement inspection, lawns were knee high, gardens were overgrown with weeds and grass. Agent promises to get them done. I raise with my solicitor that its not done (and theres general rubbish left in garage, shed etc). Solicitor has the vendors solicitor agree to pay yard cleanup. Sale settles as per contract.

Its now over a week and yard is a jungle. The quotes from the garden care places the agent arranged were $300-$450. The vendor refuses to pay since she claims its not her fault the agent didnt advise the lawn was so long that it needed so much time to get ready. Agent refuses to pay since they say its the vendors cost.

Goes round and round, vendor transfers $100 to the agent for a standard lawn mow and tells them to wear the rest of the cost, agent refuses. Meanwhile the lawn is getting longer, I cannot do any external work to prepare for new tenant, and I certainly am not going to spend 6 hours doing the lawns.

I advised the agent (after the principal of the agency is now involved) that if it is not done by COB monday then my solicitor will be pursing the costs in local small claims court. Whether its against the agent or the vendor is up to them to argue about.  

评论
DaveMSydney said: ↑
They sure do - however asking nicely sometimes isnt enough. ... I raise with my solicitor that its not done (and theres general rubbish left in garage, shed etc). Solicitor has the vendors solicitor agree to pay yard cleanup. Sale settles as per contract.Click to expand...
With respect, that's not a story about the perils of asking nicely, that's unfortunately a story about "holding all the cards and giving away the ace"! :eek:

The whole point of the inspection being PRE-settlement is that everybody knows you have absolutely no bargaining power after settlement has happened. So if you're not happy with pre-settlement inspection, you either 1) delay settlement until the works have been complete, or 2) settle with $450 (in this case) held back to cover the cost of the works.

Settling without adopting either of these approaches is plain crazy, if it really mattered to you (and it clearly does). I'm amazed this is the course that your solicitor adopted. If you haven't been through property settlements many times before, please understand I'm not accusing you of being stupid, but your solicitor should have known that such a verbal undertaking from the vendor's solicitor is less than worthless, and should have taken a different course. I'm suspecting laziness or apathy. (Or a naive legal clerk was doing the work.)

Anyway, now that you're in this situation, I'd be pursuing your solicitor, if they recommended this approach. Let your solicitor chase up the other party, since they were so confident in the verbal assurances they were given. That's really ****-poor service from your solicitor, IMHO.  

评论
Perp said: ↑
Settling without adopting either of these approaches is plain crazy, if it really mattered to you (and it clearly does). I'm amazed this is the course that your solicitor adopted. If you haven't been through property settlements many times before, please understand I'm not accusing you of being stupid, but your solicitor should have known that such a verbal undertaking from the vendor's solicitor is less than worthless, and should have taken a different course. I'm suspecting laziness or apathy. (Or a naive legal clerk was doing the work.)

Anyway, now that you're in this situation, I'd be pursuing your solicitor, if they recommended this approach. Let your solicitor chase up the other party, since they were so confident in the verbal assurances they were given. That's really ****-poor service from your solicitor, IMHO.Click to expand...
Assurances from the vendors solicitor were in writing and are attached to the settlement documentation.

The issue is that the vendor will not pay the full amount of mowing, and the agent wont bear the additional cost. The real issue stems from the vendors conveyancer beinig slack and not organising/telling the agent when settlement was happening so the work could be done adn then accomodated in the settlement schedule. Neither I nor my solicitor have been naive or lazy.

I have asked the agent nicely since before settlement, and its not done. I have asked the principal nicely, still not done. So I am done asking nicely.  

评论
DaveMSydney said: ↑
Assurances from the vendors solicitor were in writing and are attached to the settlement documentation.Click to expand...
OK... but it hasn't resolved your problem, has it?
DaveMSydney said:
Neither I nor my solicitor have been naive or lazy.Click to expand...
I understand that you justifiably feel that you've been on top of the issue, but I maintain that it was very trusting to accept a promise to do something after settlement - even in writing - as an acceptable outcome, precisely because of what you're facing now; if they don't live up to their commitment, your only option is to take legal action, and it's not viable for the amount involved. I don't know if you can pursue it in small claims court, but if you can, good luck. (I'm wondering if the fact that it's part of a much larger contract puts the matter beyond their jurisdiction. :()

You'd think that making the mowing a condition of the contract should be sufficient, and that people would honour their legal obligations, but once >99% of the contract is complete (ie after settlement), the other party's resolve to fulfil the remaining <1% is <1% of their resolve when their settlement's being held up :eek:, and as you're seeing, there's precious little you can do about it.  

评论
Perp said: ↑
OK... but it hasn't resolved your problem, has it?Click to expand...
Just got a phone call - my "chat" with the principal yesterday evening did the trick. Agent is paying the difference, lawns being done either today or Monday.  

评论
DaveMSydney said: ↑
Just got a phone call - my "chat" with the principal yesterday evening did the trick. Agent is paying the difference, lawns being done either today or Monday.Click to expand...
Fantastic outcome. :cool: Congratulations!  

Property Investment

Australia property Selling Hints | Sydney

澳大利亚Hi folks I recall ready somewhere about what are some simple tricks for making your place more attractive during a home open. Im seriously thinking of selling my little pad and want to maximise my efforts. Any hints greatly appreciated. 评论 ...

Property Investment

Australia property Re-zoning | Sydney

澳大利亚What would the chances of a NSW Local Council allowing a community titled development (homes, community buildings, etc) on an area zoned Protected Agricultural land? Does anyone have experience in this area? Looking at the local council LEP, ...