Hey,
We put an offer on a house, in WA, which was accepted. Part of the conditions were working order of every thing, new RCD switch etc etc. We got a report that the spa was not working and have questioned this. The vendor has got back to us saying that they arn't spending another $ on the house so they won't get it working. Claimed that the spa was working and that if we didn't want it they would remove it or just cancel the contract for sale….
Am I correct in assuming that I have the right to a working spa and can therefore withhold $ at settlement? What about lighting and all those little bits and pieces??
If they try to get out of the contract what is the best way to pursue this?
Cheers
best not to assume things, but to look at the agreement you entered into.
Was the spa working at the date you signed the contract? Any special conditions about the spa? What was the wording etc.
Have your solicitor answer these questions. If you have used a conveyancer or settlement agent they won't generally assist too much in this area as it is out of their range.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Yeah I agree with Terry, it is all to do with the wording of the contract.
Generally the spa would have to be specifically mention as included in the contract (usually listed items are on the first page ir two these include dishwashers and any other non -standard item), if it was not, then the vendor has the right to pull it out all together as they didn't include it in the first place.
Without reading the contract (and being a solicitor) it is hard to speculate on this.
You have to check your contract, like previous posts suggested. The contract is a legal binding document and all detailes need to be written there. It has to be some sort of agreement about a spa.
Hey
Thanks for the comments guys,
Yea the spa was listed as a chattel on the first page.
Under special conditions #4 :
"Working order and approvals: The seller warrants that all electrical, gas and plumbing fixtures, including all swimming pool equipment, reticulation and any dishwasher will be included in the sale and shall be in good working order at settlement. The seller warrants any extensions or additions including patio/pergola/sails, swimming pools and or spas have local council approvals unless otherwise stated."
As there was no fence around the pool the seller has a written conditions of:
"Buyer is aware that the spa is non compliant and take responsibility for it as is."
This was included for fence rather than working status as explained by the agent. The agent is backing us up in this regard by saying that that condition was to avoid section 7 which states that swimming pools and spas are installed and conform to the safety regulations.
With the joy of learning through experience we probably should have written that section 7 does not apply.
Anyway our settlement agent has been quite helpful on the issue and I am working with the agent to get an idea on getting the spa into working condition.
I guess it all comes down to the interpretation of the written statement.
"Buyer is aware that the spa is non compliant and take responsibility for it as is."
On one side there is the "take responsibility for it as is" indicating that it is how it is. However the sentence is in reference to "Buyer is aware that the spa is non compliant".
If it said "and take responsibility for it condition as is" I would quite happily admit defeat….. mind you 1) I wouldn't have signed if it said that and 2) I would have offered slightly less….
Learning experience I guess.
Working order is different to compliant. So the owner warrants the spa is working yet you are advised and have no recourse with regards to the non-complying fence.
Yea that is certainly the way I am interpreting and pursuing this.
Cheers
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