webmack
30-09-2010, 02:36 AM
Hi,
In a bit of a spot and hoping someone can offer some advice.
I bought a property in Knoxfield, Victoria back in May '08, a little over two years ago, becoming the third owner. A weatherboard house around 35 years old, recently renovated. It seemed a good deal and I was satisfied with the inspections I had done and the conveyancing / settlement went smoothly.
The original owner was a planner/builder who subdivided the plot into two. I bought the subdivision that had the house, facing the street. The vacant plot behind my property has now been developed into another house by the orignal owner.
I lived in the property for a while and then rented it out.
On 11th May 2010, a council planning investigator came past, had a word with the tenants and inspected the property comparing it to the plans / elavation drawings that they had on file and found the property to not be compliant and issued me a planning infringement notice with a penalty of $584. (see notice attached)
The three items that the council wanted actioned were:
1. Small tin shed in carport removed (I installed this a few months ago temporarily)
2. Plans elevations updated to show a window that wasnt on the plans and to remove a window that was on the plans but not on the house
3. Undertake landscaping in accordance with the plans. (planting of trees, changing the measurements of driveway/carport and front lawn, and paving)
I had the shed removed soon after and then I asked for an extension on the payment of the penalty and was granted one, during which I spoke to the investigator to find out details about the other two items. The investigator told me that the changes were minor and the 'landscaping' would probably be an hours work.
Believing him, I got some landscapers out to have a look and get quotes to find out that this was a much bigger job. The landscaper also told me that I should investigate why the original owner or the owner before me hadn't bothered to update the council plans or get the changes made, and how come this wasn't bought to my attention during my purchase. I contacted my conveyancers who had done the settlement and also a friend of mine who does some building estimating and have so far learnt the following.
Planning investigator says "The owner who is living at the back unit made a subdivion plan in year 2006. This man submitted the plans to the council, however, he did not follow up with them insurning that landscaping and house changes have been made."
Conveyancer says in my email correspondence to them asking for a copy of the section 32 and clarification on what they think happened:
"We have retrieved the file and now enclose the Section 32 Statement as requested
We also enclose the Requisitions on Title we served on the Vendors and the Vendors answers thereto
Requisitions on Title were at the time you purchased, a serious of questions that were through legislation the vehicle in which a purchaser would find out further information about a
property after entering into a Contract. (As a side note requisitions on title were abolished shortly thereafter).
Neither the Vendors Statement nor the Vendors Answers to Requisitions indicate that the Vendors were aware of any non compliance with town planning.
(See Requisition 10 and answer thereto)
The Vendors appear to have purchased directly from the subdivider, the owner who entered into the Section 173 Agreement with Council
([name address removed], his address on the 173 Agreement.
If the Vendors were in fact aware of the non-compliance and have provided information that was false, there may be some recourse for you from the Vendors. You have not indicated at what stage the Council became aware of the non compliance? It may be that you have some recourse from the original developer?
When you purchased the property the plan of subdivision had been registered for about a year. The Section 173 Agreement was registered and contained in the Section 32 submitted to you prior to your signing the Contract.
It appears we were not asked to give advice prior to your entering into the Contract
Our notes indicate that you purchased the existing dwelling (about 40 years old) and that the other Lot 2 on the plan was the vacant land to be developed/built. There was nothing to indicate that the existing dwelling had been or had to be modified.
(See Vendors Statement Item 5 and requisition 12 and answer thereto)
We can only suggest that you seek legal advice in relation to what recourse you have, and wish you success but please do not hesitate to contact us if we can assist you further."
The situation now is that I have been given two weeks to make the property compliant or face court action and further fines. As far as the council is concerned, I am the current owner and this is my responsibility. I think it is unfair that I had to pay a penalty and am now being forced to rectify non-compliance of my property that I was unaware of until recently.
I'd like to know if
1. I have grounds to hold the orignal owner as responsible or take legal action?
2. the conveyancers failed in their job during settlement to bring this to my attention?
3. I Should just bite the bullet and get everything done, assuming legal fees etc. will make it more of an expense for me?
I've attached the planning infrigement, the section 32 and other documentation from the conveyancer.
If required I can send photos of the property and the scanned plans / elavation drawings also.
Cheers,
Moin
In a bit of a spot and hoping someone can offer some advice.
I bought a property in Knoxfield, Victoria back in May '08, a little over two years ago, becoming the third owner. A weatherboard house around 35 years old, recently renovated. It seemed a good deal and I was satisfied with the inspections I had done and the conveyancing / settlement went smoothly.
The original owner was a planner/builder who subdivided the plot into two. I bought the subdivision that had the house, facing the street. The vacant plot behind my property has now been developed into another house by the orignal owner.
I lived in the property for a while and then rented it out.
On 11th May 2010, a council planning investigator came past, had a word with the tenants and inspected the property comparing it to the plans / elavation drawings that they had on file and found the property to not be compliant and issued me a planning infringement notice with a penalty of $584. (see notice attached)
The three items that the council wanted actioned were:
1. Small tin shed in carport removed (I installed this a few months ago temporarily)
2. Plans elevations updated to show a window that wasnt on the plans and to remove a window that was on the plans but not on the house
3. Undertake landscaping in accordance with the plans. (planting of trees, changing the measurements of driveway/carport and front lawn, and paving)
I had the shed removed soon after and then I asked for an extension on the payment of the penalty and was granted one, during which I spoke to the investigator to find out details about the other two items. The investigator told me that the changes were minor and the 'landscaping' would probably be an hours work.
Believing him, I got some landscapers out to have a look and get quotes to find out that this was a much bigger job. The landscaper also told me that I should investigate why the original owner or the owner before me hadn't bothered to update the council plans or get the changes made, and how come this wasn't bought to my attention during my purchase. I contacted my conveyancers who had done the settlement and also a friend of mine who does some building estimating and have so far learnt the following.
Planning investigator says "The owner who is living at the back unit made a subdivion plan in year 2006. This man submitted the plans to the council, however, he did not follow up with them insurning that landscaping and house changes have been made."
Conveyancer says in my email correspondence to them asking for a copy of the section 32 and clarification on what they think happened:
"We have retrieved the file and now enclose the Section 32 Statement as requested
We also enclose the Requisitions on Title we served on the Vendors and the Vendors answers thereto
Requisitions on Title were at the time you purchased, a serious of questions that were through legislation the vehicle in which a purchaser would find out further information about a
property after entering into a Contract. (As a side note requisitions on title were abolished shortly thereafter).
Neither the Vendors Statement nor the Vendors Answers to Requisitions indicate that the Vendors were aware of any non compliance with town planning.
(See Requisition 10 and answer thereto)
The Vendors appear to have purchased directly from the subdivider, the owner who entered into the Section 173 Agreement with Council
([name address removed], his address on the 173 Agreement.
If the Vendors were in fact aware of the non-compliance and have provided information that was false, there may be some recourse for you from the Vendors. You have not indicated at what stage the Council became aware of the non compliance? It may be that you have some recourse from the original developer?
When you purchased the property the plan of subdivision had been registered for about a year. The Section 173 Agreement was registered and contained in the Section 32 submitted to you prior to your signing the Contract.
It appears we were not asked to give advice prior to your entering into the Contract
Our notes indicate that you purchased the existing dwelling (about 40 years old) and that the other Lot 2 on the plan was the vacant land to be developed/built. There was nothing to indicate that the existing dwelling had been or had to be modified.
(See Vendors Statement Item 5 and requisition 12 and answer thereto)
We can only suggest that you seek legal advice in relation to what recourse you have, and wish you success but please do not hesitate to contact us if we can assist you further."
The situation now is that I have been given two weeks to make the property compliant or face court action and further fines. As far as the council is concerned, I am the current owner and this is my responsibility. I think it is unfair that I had to pay a penalty and am now being forced to rectify non-compliance of my property that I was unaware of until recently.
I'd like to know if
1. I have grounds to hold the orignal owner as responsible or take legal action?
2. the conveyancers failed in their job during settlement to bring this to my attention?
3. I Should just bite the bullet and get everything done, assuming legal fees etc. will make it more of an expense for me?
I've attached the planning infrigement, the section 32 and other documentation from the conveyancer.
If required I can send photos of the property and the scanned plans / elavation drawings also.
Cheers,
Moin