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Defects

No, provided s 137B of the Building Act 1993 (Vic) does not apply. The principle of caveat emptor still applies, and a purchaser should complete inquiries prior to signing the contract. In the absence of fraudulent concealment, misrepresentation or express agreement, a vendor of real estate is not liable to a purchaser for defects in a building or land rendering it dangerous or unfit for occupation, even if the vendor has created the defects him or herself or is aware of their existence.



Co-Ownership

Under s72 of the Property Law Act 1958 (Vic), a person can transfer his or her interest to him or herself to sever the joint tenancy and create a tenancy in common. However, the duplicate certificate of title will need to be produced to the Land Registry before the nature of the interest can be changed.



Cooling-Off and Exchange

The purchaser will have lost the right to cool off after the expiration of three clear business days. However, if the vendor has not yet signed the contract and the purchaser is aware of this, the purchaser may withdraw his or her offer to purchase the property on the basis that the vendor has not yet accepted the offer.



Deterioration

The 2008 Contract requires the vendor to deliver the property and goods/chattels in the same condition as when the contract was signed, fair wear and tear excepted. However, this does not entitle the purchaser to make a deduction at settlement as the condition specifically states that if any goods/chattels are not in the required condition, the purchaser may claim compensation from the vendor after settlement. The procedure for claiming compensation is set out in General Conditions 24.2 to 24.6 of the 2008 Contract.

If the rubbish was on the property as at the day of sale then the vendor is not obliged to remove the rubbish unless there is a special condition in the contract requiring the vendor to do so. Unfortunately this is an all too common occurrence.



Company Charges

The vendor must provide at settlement a Form 312 if requested in writing to do so at least 21 days before settlement, except where the chargee is the proprietor of a registered mortgage over the land. The vendor must pay the registration fee for the registration of the Form 312. General Condition 7, 2008 Contract.



Chattels

Practitioners should refer to common law tests of degree of annexation and intention of annexation to determine whether the refrigerator is a fixture or a chattel (or “good” for the purposes of the 2008 Contract) The refrigerator will likely be a fixture if it is annexed using a relatively permanent method of annexation. However, the intention of the person/s who brought the refrigerator onto the premises must also be considered.



Certificate of Occupancy



Early Settlement



Adjustments

Yes, if adjustments are effected in error.

Yes, adjustments should be as at the day of settlement.

Simple rule – treat it as a part-payment and remember that the vendor must receive the ultimate benefit. General Condition 15.2(d), 2008 Contract.

Usually adjustment should be based on proportion by area.

Suggest that the vendor pay the rates in full at the first settlement and provide proof of payment at subsequent settlements.

Yes, although this may be unfair to your clients. Obviously in future years the principal residence exemption will apply to your clients and they will not be required to pay land tax. General Conditions 15.1 and 15.2(b) of the 2008 Contract apply

The vendor is entitled to the rent which accrues on the day of settlement. General Condition 15.2(a), 2008 Contract.

SOURCE: Law Institute of Victoria

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