One of the most widely misunderstood elements of real estate practise is what condition should a property be in at settlement or possession.
In short, a property is sold “as inspected”. For example, if there was dust on a ceiling fan when you first inspected before contracting to buy then the fan can be dusty at settlement. The same goes for a dirty oven, a blown light globe or a squeaky laundry door. If it was dirty, blown or squeaky at inspection before purchase then so it should be at settlement.
Typically, buyers anticipate the property will be handed over spick n’ span and thankfully most house-proud sellers leave their homes in an appropriate condition when moving out but there is no obligation on them to do so.
Unless otherwise specified in the contract, the seller is under no obligation to have the property professionally cleaned for settlement and it is surprising how few buyers ask that such a condition be included. The seller’s only obligation under the contract (Clause 6.1(b) 2 of the General Conditions) is to “…remove from the Property, before possession, all vehicles, rubbish and chattels, other than the Property Chattels.”
Many modern contracts to purchase include provision for essential plumbing, gas and electrical components to be working at settlement. Hence, if at settlement the toilet cistern leaks then the Seller ought to make good because the contract says so.
It is trickier when say a telephone jack doesn’t work at settlement. It is not strictly electrical but it is probably reasonable for a buyer to assume that it was functioning at inspection. This is partly because, caveat emptor (buyer beware) is all but gone according to some legal practitioners. The onus is probably on the seller to disclose (in this case) that the telephone jack didn’t work.
My view is that buyers need to take reasonable steps to ensure the property they have bought will be presented to them in a condition they are satisfied with. This can be achieved by either contracting with the seller to guarantee it and/or being more thorough when inspecting the property in the first instance. Ask the agent if it’s ok to turn on taps, flush loos, flick switches, open and close doors, open the oven, turn on the dishwasher and so on before making an offer to purchase.
Buyers ought to have a realistic expectation of what to expect at settlement when buying an established home and acknowledge that opinions of presentation are subjective.
These comments are the writer’s own and do not necessarily reflect the current opinions and policies of the Real Estate Institute of Western Australia.
by Hayden Groves
REIWA President
dG Principal
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