Session 1: Mind the Gap: Looking Beyond the Disclosure Obligations in Residential Property Purchases
Despite recently tightened regulations concerning disclosure to purchasers in off the plan sales, there remain gaps where disclosure is not mandated, resulting in purchaser ignorance of potentially significant matters. This session will examine what some of these gaps are and provide advice to practitioners about protecting at-risk purchasers, including:
- The doctrine of caveat emptor balanced with statutory obligations of disclosure – does it provide sufficient protection to a purchaser?
- What further investigations should a purchaser make and when? A discussion of:
- Land contamination: Curtain v Kirk  QSC 317
- Pest and building condition reports
- Building certificates and approvals
- Planning restrictions and road proposals
- Boundaries and land dimensions
- Defects and cladding issues
- How far do statutory warranties fill in the gaps?
- When can failure to make non-mandated searches be professional negligence?
- Tips for minimising your client’s risk – additional searches and title insurance
Session 2: Property Options: Tips for Drafting Water-Tight Agreements
Options agreements can provide advantages to both vendors and investor/developers in uncertain times, subject to precise drafting and understanding by both parties. This session provides a deep dive into what an option agreement should contain, and what advice you need to give your client to minimise risks down-track, including:
- The pro’s and con’s of option agreements for vendor and purchasers
- Types of options considered and when they are applicable:
- Which option arrangement is right for your client?
- Key elements of an option agreement
- Calculating the option fee and purchase price
- Factors to take into account in specifying the option period
- Should the purchaser lodge a caveat?
- How to determine option exercise dates
- Assignment and other essential clauses
- Stamp duty liability and tax implications of entering into an option agreement
- Tips for options agreement terms in a volatile property market
Session 3: Contract Termination in a Volatile Market
Uncertain economic times have led to volatile market conditions and a consequential rise in purchasers seeking to terminate their contracts. This session examines a number of scenarios and practical steps to minimise risk and manage the fallout when a purchaser seeks to terminate the contract, including:
- Setting the scene – repudiation and rescission explained
- Rights of rescission under the Standard Contract for the Sale and Purchase of Land
- Common law rights – the Flight v Booth principle: Smogurzewski v AIT Investment Group Pty Ltd  NSWSC 490; Victorsen v Easy Living Holdings Pty Ltd  NSWSC 1721
- Rights of rescission for a change to a “material particular” in off the plan contracts – when does it apply?
- Application of the Australian Consumer Law – can the misleading and deceptive conduct provisions support a rescission claim?
- Breach of prescribed statutory warranties in the Conveyancing (Sale of Land) Act
- The doctrine of frustration – is it an option?
- Rescission or damages? Factors to weigh up in making an election
- Drafting tips for special conditions and other strategies to enable and protect purchasers.