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WA Contract to Buy Property Subject to Subdivision - Get Deposit Back?

Discussion in 'Property Law Forum' started by A.Martin, 10 September 2014.

  1. A.Martin

    A.Martin Member

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    Hi, just wondering if we have a case to seek legal action or not? Any legal help would be greatly appreciated. In November 2013, My partner and I signed a contract to purchase a green title Lot which has not yet been subdivided. Currently, 5 lots will needed to be subdivided into 29 lots, from which we have signed a contract to purchase Lot 9 and have paid a $5000 deposit. We were told that council approval had been obtained, and after some clearing the blocks would be subdivided and that title would be issued in July 2014.

    To date nothing has been done to the block, however on the 31st august we received an email from the property agents suggesting that:
    “We were told by the sellers last week that council approval has come through. The information that they have given us is the next 2 weeks will be for tenders of fencing, landfill, tree removal, services and roadworks. They have also told us that after that the development can begin. This will take approximately 8 weeks and includes the removal of trees and clearing of the land, the land being filled and all services are put in”.
    Today we received an email from the City of Canning council informing us that the approvals have expired:
    "Western Australian Planning Commission (WAPC) with regards to this subdivision and have received the following advice;

    “The WAPC conditional approval issued on 9 September 2010…expired 9 September 2014 (4 year approval as the subdivision created over 5 lots). Any deposited plans submitted for final endorsement after this period cannot be considered by WAPC as the approval is no longer valid. The landowner will need to submit a new application to obtain a new decision based on current planning policies.”

    As you can see from the advice given by the WAPC, the conditional approval issued on 9 September 2010 has now expired and the WAPC will not consider/accept any clearance lodged with them for final subdivision approval after this date.

    We are wondering what our options are at this point? We have waited a year ( at which time we have been paying rent) on a development which again has been delayed (and we have no end point in sight), and the property agents have been providing erroneous details to string us along until this point.

    Is there any way possible under property or contract law to walk away and still get our $5000 deposit back? At the moment, we are signing new contract variations every three months to continue to hold the property until the title can be issued to us, but we are concerned that at some point the property agents will want to increase the price of the property and we will be left to find another property which by this stage will have increased in price and we will be subject to the newly introduced reduced stamp duty threshold and we will be forced to pay stamp duty too.

    Do we have a case to seek further legal advice?
    Thanks
     
  2. Amanda E

    Amanda E Well-Known Member

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    Hi Aimee,
    Is it a term of your contract that:
    • Council approval had already been obtained, and/or
    • Title would be issued in July 2014?
    Also, does your contract say anything about breach of contract and anything about return of the deposit?
    I'm trying to ascertain whether there's been any breach of contract and whether that entitles you to walk away, ideally with your deposit.
     
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  3. MrlR

    MrlR Member

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    A.martin, we are having a similar issue with the city of canning and dealing with them is an extremely frustrating process. so have the blocks been subdivided/titles issued and NOW the clearing is being done as i was under the impression with CoC that the land has to be pretty much ready to be built on BEFORE the titles will be issued. M
     

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