It is often the case that buyers and sellers in property transaction do not think to engage a lawyer until after they have secured a contract of sale. The obvious reason for this is an avoidance of legal costs. The other reason is that sellers are generally of the view that they know all about their own property. Sometimes this is not the case.
If you are a seller, there can be a number of pitfalls in waiting until you have a contract to engage a lawyer. Residential property contract will almost always contain ‘warranties’ which the seller gives to the buyer. A warranty is a promise or assurance that something is or isn’t as it should be at either the date of contract or at settlement date.
For example, under a standard form contract a seller gives a warranty that at the contract date the property is not affected by any proposal for transport infrastructure. Transport infrastructure can be works such as a road widening or a new road. If there is a proposal and it is not adequately disclosed in the contact the Buyer will be entitled to terminate the contract at any time prior to settlement.
In Queensland a number of properties are affected by these transport infrastructure proposals and the property owner is completely unaware of the government’s plans for such works. Details of future transport infrastructure works can be discovered by a search. In some circumstances this can impact on the possible uses for the property in terms of future development and thereby possibly devaluing the property.
Properties can also be affected by ‘statutory easements’ which are sometimes not discoverable by a standard search such as a title search, which is the usual search an agent would undertake. If these statutory are not disclosure in the contract the Buyer will have an automatic right of termination.
In either circumstance, the issue may be dealt with by either:
1. Amending the warranty given in the contract;
2. Removing the warranty in its entirety from the contract; or
3. Making the necessary disclosure in the contract.
If either a buyer or seller had have engaged a lawyer to undertake searches prior to entering into the contract, then this could have been revealed and dealt with in the contract. Ultimately, you cannot avoid the burden on the property but you can be aware of it and have your contract drafted to as to either make the prospective buyer aware or remove the right of termination.
Conversely, if a buyer seeks our assistance prior to signing a contract we can undertake investigations in to the property so that they are informed when entering into the negotiation process and signing contracts. In some circumstances, this may be information which determines if the property is suitable for them prior to going into the negotiation process. These investigations are even more so important if the buyer is proposing bidding at an auction whereby your usual rights as a buyer may be diminished.
At QBM Lawyers we always encourage our clients to speak with us when they are looking to list their property or looking at entering into a contract to purchase a property and at all time prior to signing the contract. We are always happy to undertake searches and prepare the contracts for the real estate agent or even assist the agent in preparing the contract.