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NSW Property Law - Property Sold "As Is" - What to Do About Rubbish?

Discussion in 'Property Law Forum' started by haadrian, 20 May 2016.

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  1. haadrian

    haadrian Member

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    I signed a contract to buy an old property and the settlement is in several days. The contract stipulates the property is sold in the "as is" state.

    The property is full of rubbish and we asked the vendor to remove the rubbish. They are trying to argue that the rubbish is covered because the property is sold as is. We notified them that we need the goods removed as part of the vacant possession requirement.

    The amount of rubbish in the house is staggering and in most places you could not step on the floor because of the rubbish composed of clothes and other matter harder to distinguish.

    Any property law help would be appreciated.
     
  2. Rod

    Rod Well-Known Member

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    You may need a lawyer to look at the working used in the contract and representations made at the sale/auction.

    Chattels (personal property eg clothes etc) would normally be removed by the vendor but that can be changed by contract.

    Do you want to be in the position of bailor for the seller's property? If not, I recommend you do something before settlement to avoid becoming a bailor.

    You may be able to cancel the contract if the rubbish is not removed prior to settlement as buyers are entitled to vacant possession at settlement. If there is no vacant possession then this can be a serious breach of contract.

    Alternatively you may be able to negotiate a withholding of $x at settlement as clean up costs. Talk to your conveyancing lawyer about this.

    Too late for you now, but you/others should put a special condition into the contract if you knew there was a risk rubbish was going to be left behind.
     
  3. haadrian

    haadrian Member

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    Hi Rod,


    Thank you for your wise words. The contact does not specify anything about rubbish or Chattels so I assume removal of that would be implicit.
     
  4. Rod

    Rod Well-Known Member

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    Yes, removal is implicit. However you also said the sale contract states property is sold in an 'as is' state. Lawyer needs to look at wording to see if the express 'as is' term overrides the implied term.

    If vacant possession is not affected by the 'as is' term, then you decide what path you take. Cancel contract, or try to withhold money or settle anyway (but not as bailor - would need to make that clear prior to settlement).
     
  5. Tim W

    Tim W Lawyer

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    The phrase "as is" was clearly intended by the seller to mean "with all the rubbish in situ".
    Perhaps you can include the cost of removal as an adjustment.
    It might be too late, to include rubbish removal as a Special Condition.
     

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