Wednesday, 8 May 2013

Off the plan sales: when does an amendment to a plan of subdivision materially affect a lot? Comments

Upon reading my earlier post, Stuart Monotti of Harwood Andrews has raised the following question: 

Do you have any comment regarding 9AC(1) dealing with changes before registration and the fact that in this case the request was not made until after registration?

My own view is that after registration of the plan, the purchaser's rights to rescind are probably more limited, and this may be a defect in the legislation. 

Stuart Monotti says that for practitioners it is common not to be told of changes until the certified plan is received from the surveyor.  A trap can be to send this to a purchaser, and if the change is detrimental, unwittingly give the purchaser an out under s10(1), even though it may be possible to reverse the change before registration. 

However, Mitch McKenzie, counsel for Lockwood in the case disagrees with my view:
His comments are: 

I cannot see why the right to withdraw because of a material change would be lost on registration.

Au contraire....
1. Most developers do not bother to tell a purchaser of changes ... as Lockwood found out.
2. If the right to avoid lapsed on registration a purchaser gets no notice and the vendor gives a purchaser whatever they want.
3. The clear contrast with 9AA or 9AB in the 9AE regime supports the notion it ought be open under 9AC until settlement ... which is my view.
4. I am currently wrestling with a situation where some passing comment was made when the registered plan was sent ... saying the council reserves are now common property and do not now vest in the council....
5.The question is if the purchaser has 14 days to much does the vendor need to disclose....??

It seems to me that there is room for argument either way, creating more work for lawyers! 

W G Stark
Hayden Starke Chambers

No comments:

Post a Comment