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WA Property Law - Used Force to Access Place for Inspection?

Discussion in 'Property Law Forum' started by Sjane, 20 April 2016.

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  1. Sjane

    Sjane Member

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    Hello all,

    I am currently in the process of settling the buying of a house in Perth, WA. This is a very specific issue we currently find ourselves in and would like some help, as we have not been able to find anything definite and neither settlement agents are any help.

    We have put the clause that the sale is conditional on building inspections, and have arranged (and paid for) an inspector to look at the house. He has completed the whole house but was not able to physically gain access to the sub floor as it was sealed shut (in two access points).

    The seller had given his permission for force to be used to gain access, however, they want us to pay for the re-inspection costs as well as any damage made from the force needed to gain entry. We believe this to be unfair as it is the seller's responsibility to allow access and thus, should have to pay for the damage that may be caused in doing so.

    Is this correct under property law, as we cannot find any documents either supporting or disproving this and both settlement agents are no help?

    Thank you.
     
  2. Rod

    Rod Well-Known Member

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    It is done by agreement. No agreement, no satisfactory inspection, no sale is one possible outcome. May place your deposit at risk depending on the exact wording on the contract. Do you have a lawyer doing the conveyancing?

    The seller has the right to have their property protected from damage in case the sale doesn't proceed. The seller would be silly to give the go ahead to inspections that allowed damage to their property. The agreement on the inspection should say that damage will be fixed at your expense if the sale doesn't proceed or that you will accept the damage as part of your final inspection just prior to settlement. Also means re-inspection cost not needed.

    Gotta ask yourself why the access was sealed? Is something being hidden? Compare the cost of fixing access damage now, versus fixing a hidden problem post sale.
     
  3. Sjane

    Sjane Member

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    No, we don't have a lawyer, just a settlement agent and the seller has an architect on the team of the RA.

    The current owners didn't even know you could get under the house (supposedly) and if this is true it hasn't been checked in over 9 years (how long they have been there). If they are lying then they have sealed it shut and decided to sell for a reason we would like to know.

    Thanks for your help.
     
  4. Sjane

    Sjane Member

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    Update:

    We got another inspector (for another $500 as it was an urgent job) in and gave him the OK to use force, however, he thinks they have both been nailed shut and stuck down with silicon and will not attempt to open it because it will cause too much damage and he doesn't want to be held liable. He has said that we need to get the owners in to rip it up themselves.

    After calling other places, this seems to be the consensus.

    What should we do now? This seems very fishy to us and we are already out of pocket without having anything done just because the sellers haven't made sure we could get access.

    This is so stressful and overwhelming (I might add this is our first home).
     
  5. Rod

    Rod Well-Known Member

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    Think you are probably at the stage now where you either take a risk and run with a partially completed inspection, or engage a lawyer.

    Did the inspectors do the rest of their inspection, including looking for termites in the frame if the house has a wooden frame? Many structural issues can be seen in building cracks, uneven floors, doors and windows that don't open or close properly, door frames out-of square etc.

    It might be possible to negotiate a change to the contract that refers to the lack of ability to gain access to complete the report. An experienced property lawyer can help draft something.

    In the past when I have bought houses I have felt confident knowing what to look for and only had one building inspection done because I was short of time and the house was at the top end of my affordability and didn't have a renovation budget available to me.

    You need to work out what is best for you in these circumstances.
     

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