All Topics / Legal & Accounting / Land convenant

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  • Profile photo of hshah12hshah12
    Member
    @hshah12
    Join Date: 2005
    Post Count: 8
    Hi all

    We recently purchased a property in Frankston area, a 3 bed house with 650sqm of land.

    Before we looked at the property it was confirmed by the Real estate agent that potentially we can build a unit at the back of the house and rent it out seperately(have this in writing).

    Being able to build a second dwelling on the land was a major criteria in the property we aspired, therefore we agreed to buy this property. At the time of signing the contract they confirmed(the lady spoke to her boss/legal adviser) who saw the section 32 and confirmed that building a second dwelling at the back was possible STCA.

    However recently while looking for a builder/surveyor for this project, we found that the land has a convenant where only one dwelling is allowed. This was later confirmed by our conveyancer.

    As inexperienced first home buyers we didn't confirm with our convenyacer about a possible restriction/convenants before singing the contract because we blindly trusted what the real estate agents said and throughout we were under the belief that building a second dwelling was not an issue at all.

    Further inquiries with our conveyancer revealed that removing this covenant is not only time consuming but can be a very expensive exercise.

    My question to all the experienced posters here is do we have any grounds to take any action against the real estate agent for giving false information and misleading us or is it entirely our responsibility as buyers to check these things prior to signing the contract and we just have to regret not doing proper checks for the rest of our lives.?

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    Profile photo of crjcrj
    Participant
    @crj
    Join Date: 2004
    Post Count: 618

    Have you settled? 

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    Never trust a real estate agent. and never use a conveyancer. It is your responsibilities to check these things.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of god_of_moneygod_of_money
    Participant
    @god_of_money
    Join Date: 2008
    Post Count: 970

    Totally agreed.

    Nothing much you can do if you have settled. Count it as experience from 'dodgy' real estate agent

    Profile photo of hshah12hshah12
    Member
    @hshah12
    Join Date: 2005
    Post Count: 8
    Terryw wrote:
    Never trust a real estate agent. and never use a conveyancer. It is your responsibilities to check these things.

    I understand what you are saying however you would appreacite that it is not easy or even possible for an inexperienced person who is buying their first home to understand the nitty grity of a section 32 or/and all the legal language found on a house contract. So at the end of the day you will have to rely on people like agent/solictor/conveyancer etc, or  aleast thats what we used to believe up until now.

    Setting aside taking any action against the agent,, is there any way we can still subdivide this land, build a second dwelling or have this covenant removed without approaching the Supreme court or finding and approaching the convenant beneficiaries for a no objection ltr(as per our solicitor).

    Any suggestions will be much appreciated.

    Profile photo of hshah12hshah12
    Member
    @hshah12
    Join Date: 2005
    Post Count: 8
    crj wrote:

    Have you settled? 

    Yes the property is settled. We found out about the covenant after the settlement once we started talking to the town planners etc for the sub division project.

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    I think there is usually mention of the covnent on the title. Maybe ask your conveyancer if this was the case. Not sure if you have any legal recourse if it wasn't brought to your attention – but you probably would have seen a copy of the title in the s32.

    I don't think there is much you can do. Just put it down as a learning experience. You could run it by your solicitor and/or the surveyor.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

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