Buyer beware: Auckland mum warns of common contract clause that can cost home buyers dearly

Single mum Madhu is the proud owner of an Auckland family home for her daughter – she just doesn’t know if she’ll ever get to live in it.

She is now urging others to learn from her “nightmare” after buying a new Avondale home on Blockhouse Bay Rd and expecting to move in by January, only to have the seller repeatedly delay the final transfer of ownership.

Seller Renee Xinyu Xu said she couldn’t yet sign the home over to Madhu because she earlier subdivided the land and could not legally split the property title until the two new-built houses behind had full council approval.

She said she was working as fast as possible to secure approval, but that Madhu knew before buying settlement could be delayed – with the contract including a sunset clause allowing her to walk away if the deal was not completed by May.

Madhu – who didn’t wish to give her last name – acknowledged that, but said she wasn’t made aware of the true extent of delays.

She now worried that if settlement wasn’t completed by May, the bank could cancel her home loan approval and end her dream of buying in Auckland’s booming market.

“I’m so stressed and I’m now like: ‘what is going on, have I bought this property or have I not’,” she said.

It’s a predicament that real estate agents and property experts say can be all too common.

Barfoot & Thompson selling agent Clara Wu said it was “very common” for homes – especially new-builds – to be listed for sale without finalised land titles.

That was especially the case with developers, who pre-sold homes before they were built to help pull in the money needed to get big projects off the ground.

But Wu said Madhu was fully warned settlement could be delayed.

Madhu secured the home in October by making a pre-auction offer of $880,000, before then – after the home failed to sell for a higher price at auction – laying down a $100,000 deposit.

Ray White Manukau owner Tom Rawson said buyers often landed in trouble in such situations when projects ran late.

That was because builders and developers did not typically need to pay financial penalties to buyers for late delivery, he said.

Buyers in one Onehunga development waited through one year of delays, only to have the developer cancel all the sales contracts anyway – leaving buyers in limbo, Rawson said.

With Real Estate Institute data showing Auckland house prices rising 20 per cent over the past year, developers could also in some cases be tempted to drag out projects until frustrated buyers were forced to use their sunset clauses to walk away, he said.

The developers could then resell at a much higher price.

“It is one of those cases where they can blame the delays on Covid or the after-effects of Covid,” he said.

Yet he also said developers typically faced other costs when projects ran late and so delays were more often accidental than deliberate.

“It only really happens in a hot market when people are a bit reckless with their decision making and maybe their performance timelines might be unrealistic,” he said.

Avondale home seller Xu said she was not a professional developer and the Blockhouse Bay Rd property was her “first and last” project.

She had owned the property for many years with the intention of living there with her extended family.

But when their personal plans changed, she brought in a project manager and planner to help subdivide the land, renovate the original house – bought by Madhu – and build two additional townhouses that had also been sold.

Among the many delays she said she had faced was a two-month wait for Auckland Council approval to shut down part of Blockhouse Bay Rd so a driveway could be built on to her property.

Now there was a delay getting Watercare approval because she couldn’t track down a “drain layer” contractor, whom she needed documents from to secure her certificate of compliance, she said.

“I can understand the buyer’s situation, but I don’t know what I can do,” she said.

She said she started the project early last year, and it had been a huge stress.

“We are not developers, we need our life to be back to normal from that kind of havoc,” she said.

Yet that didn’t make Madhu’s mounting headaches any easier to bear.

Aside from fearing her home loan could be cancelled if the deal didn’t go through by May, she also feared house prices could have jumped much higher in the seven months between last October and May.

As a single mum, the IT professional had worked hard to save her deposit without any help from her parents and had earlier lost out at nine auctions.

However, Madhu also owned another home that had watertightness issues which she wanted to sell, and that meant she was classified as an investor.

And whereas she had been able to buy her Avondale home with a 10 per cent deposit in October, new rules brought in by the Reserve Bank since now required her to raise a 40 per cent deposit should she need to buy again – something she couldn’t afford.

She said the housing market was “a circus” right now, and it wasn’t fair for sellers to put homes up for sale that weren’t ready.

With buyers competing so fiercely, she said there was real pressure to put in quick offers to buy, knowing that if you didn’t someone else would.

Adding to her problems, she said Xu had now stopped communicating or attempting to explain the delays.

“Honestly, I’m so stressed out, I’m sitting at home thinking I don’t know what to do next,” she said.

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