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Off the Plan Property Disputes

An ‘off-the-plan’ property involves the purchase of a property that is planned to be built, but not yet built.  Disputes commonly arise in relation to these purchases and it is essential to have good legal advice prior to signing any contracts.  For example, a developer or builder has the right to modify the design of a building within certain parameters.  These parameters should be clearly defined in the contract and understood by the buyer.

Sunset clauses commonly cause property disputes.  These allow either party to terminate a contract when the building doesn’t reach practical completion by the sunset date.  This may seem fair, however in a market where property prices are increasing this creates an incentive for the developer to delay the project and and terminate the contract with the purchaser.

A property disputes lawyer can both assist resolving off the plan property disputes and help prevent disputes arising.

How can BSM Lawyers help me?

Legal Advice prior to signing

Our lawyers can explain the advantages and disadvantages of buying an off the plan property. They can explain the legal rights and obligations conferred by the contract for purchase and identify whether there are additional clauses, terms and conditions of concern.  They will also discuss important considerations such as:

  •       What is the cooling off period
  •       Is there a sunset clause and what are the implication of this
  •       What are the parameters for design modification
  •       Can costs be adjusted
  •       Are there clauses for dispute resolution
  •       What are the consequences of withdrawing from the contract

The property lawyers at Brander Smith McKnight can negotiate the terms of the  contract to avoid future disputes and protect your interests.

Legal Advice after signing

Our building and construction lawyers can suggest legal remedies such as enforcing contractual rights and obligations, injunctions, specific rectification and compensatory damages.  We can review statutory warranties that compel builders to carry out building work to a proper level of care and skill and commence proceedings for any breaches.  Many statutory warranties are defined in the Home Building Act 1989 (NSW).

 Alternative Dispute Resolution 

Brander Smith McKnight lawyers employ a variety of alternative dispute resolution strategies to resolve off the plan property disputes. The overwhelming majority of off the plan property disputes are settled by negotiation.  We will listen carefully to you and develop a negotiating strategy that is best suited to your particular situation.  This may involve correspondence to the other side, providing offers of settlement or meetings which may include lawyers and clients.  Alternative Dispute Resolution options include:

Informal Agreement

The parties to an off the plan property dispute can attempt to resolve the dispute amongst themselves by discussing the relevant issues with each other.

Negotiation

This is the favoured approach by BSM lawyers and most property disputes are settled using this technique, saving you time and money.

Mediation

Mediation is an alternative dispute resolution option where an independent mediator helps disputing parties settle their dispute amongst themselves. This is done by the mediator facilitating discussion between the parties through which the parties pursue a mutually beneficial solution. Mediation is confidential and mediators do not take sides or make decisions in relation to your dispute. Mediations normally involve the mediator and respective lawyers and their clients.  It is a cost and time effective alternative to litigation.

Conciliation

Conciliation uses an independent and impartial person called a conciliator.  Unlike a mediator, a conciliator may play an advisory role on the content and resolution of the dispute.  Similar to mediation, it is voluntary, confidential and the conciliator can not make a binding decision.  Conciliations normally involve the conciliator and respective lawyers and their clients.

Arbitration

Arbitration is an alternative dispute resolution process which allows disputing parties to have their dispute decided by an independent, neutral decision maker, called an arbitrator. In arbitration, the disputing parties put forward arguments and evidence that the arbitrator will assess when making a decision in relation to the dispute.  The process is private and subject to the parties agreement, can be confidential.  It is the most formal alternative to litigation.  The parties can enter into an arbitration contract, called an award, which is legally binding and enforceable.

Litigation

Litigation refers to the process of resolving a dispute in court. During litigation, both parties to the dispute will argue their case before an impartial judge.  Our lawyers are able to represent you and argue effectively.  The judge will determine how to resolve the dispute based on hearing the evidence of the case and the arguments of either party.  The lawyers at Brander Smith McKnight have the experience to advocate for you in court to save you the additional expense of a barrister.

Even during litigation, our lawyers remain committed to resolving your dispute as early as possible and will continue ongoing negotiation, making formal offers of compromise and interlocutory applications to court. Interlocutory applications are applications made during the proceedings to gain a tactical advantage.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

Why BSM Lawyers?

Brander Smith McKnight’s lawyers have extensive experience and expertise with property disputes.  Our property dispute lawyers resolve the vast majority of property disputes without the need for litigation. We have the expertise to achieve excellent results using alternative dispute resolution.

If litigation is required, our lawyers have outstanding advocacy experience and experience in all tribunals and courts, including the Local Court, District Court, Supreme and Federal Court.

We are conveniently located in Sutherland,Parramatta, Wollongong and Sydney CBD.

FAQs

chevronWhat is a cooling off period?

In NSW, a cooling off period is a period of time that commences after a buyer enters into a contract for the sale of certain kinds of property.

During the cooling off period the purchaser can decide to rescind their contract for the purchase of an off the plan property.

The length of a cooling off period is set under law by default but a shorter or longer cooling off period can be negotiated in your contract for the sale of property.

chevronWhat is a disclosure statement?

A disclosure statement includes various documents and important information which must be provided by a vendor to a purchaser of an off the plan property (see section 66ZM Conveyancing Act 1919 (NSW)).

For more information on what must be included in a disclosure statement for an off the plan property,

chevronAre there time limits that apply to statutory warranties?

Yes, the Home Building Act 1989 (NSW) provides that a party can commence proceedings for the breach of a statutory warranty that results in a major defect within 6 years from the completion of the work to which it relates. In the case of minor defects, proceedings must be commenced within 2 years of the completion of the work to which it relates.

chevronWhat is considered a major building defect?

Major defects are legally defined in section 18E(4) of the Home Building Act 1989 (NSW). In general terms, a major defect refers to a defect in a major element of a building that causes or is likely to cause:

  • An inability to inhabit or use the building
  • The destruction of the building or part of the building
  • A threat of collapse of the building or part of the building.

Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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