Be wary of uncertain house-and-land packages

By Catherine Cashmore

Tuesday, 07 August 2012

Readers of Property Observer may be well attuned to purchasing property.  I’m sure many have attended numerous free seminars and property shows, read industry websites, commented on property forums and so forth. However, think for a moment about the first-home buyer – the buyer with few assets aside from hard-earned deposit and (in the current atmosphere) work that may not be all that secure over the long term.

With little experience in the property industry, and from my own findings, woeful ignorance regarding the transaction process, they are the ones who need the most protection when purchasing.  A first property is unlikely to be a buyer’s last, therefore it’s essential to have investment as part of the criteria as well as consideration of lifestyle needs.

Governments have taken an active hand in pushing first-home buyers towards the purchase of new house-and-land sales by way of various incentives and handouts to aid increasing supply.

It’s not hard to see where the attraction lies – the advertisements look beautiful and tempting.  Developers also have their own gift spree to encourage sales – sometimes including plasma TVs or in other cases aholiday or car.

But when it comes to property – whether buying established or new – the approach to any advertisement should always be cautionary. They’re designed to show the best aspects of the home, but the information that’s really important is the information you can’t see – most of which is written in black and white on the contract of sale.

The risks are often not highlighted in detail and in many instances, the contract for house-and-land packages are often not available until some level of commitment (application fee) from the home buyer has been received.

Here’s a quick rundown:

• Imagine a large block of land – perhaps once used as farmland – recently purchased by Mr Smith (owner of a development company). Mr Smith has decided he wants to divide it into lots and sell each as a house-and-land package to potential home buyers. However, he’s not sure if he’s going to have the money to complete the project and he wants to be sure potential home buyers would be prepared to buy into the development before he proceeds.

• Mr Smith puts together an advertisement, showing the proposed lots, complete with artist’s impressions and floor plans of homes purchasers can choose from. Along come the home buyers, lured in by “generous stamp duty savings” (which are discounted prior to construction or before construction is completed). They’ve seen the artist’s drawings, which perhaps include “quality carpet, tiles, Blanco appliances, double-glazed windows, locks, flyscreens, recycled-water facilities” and so forth.

• The costs seem low considering the inclusions, so they gingerly choose their design – which can require an application fee – (without yet seeing a contract) – mentally locking themselves into the purchase. Once the contract has been prepared with the desired prospective floor plans and so forth, they sign on the dotted line and look forward eagerly to the date they can move in.

• Mr Smith now has the ability to get a loan to fund the development and can proceed with the project as planned.

It all sounds like a dream, until you consider the risks involve, because to this point they have purchased simply that – a “dream”. The developer may – or then again, may not – acquire approval for the subdivision and even if he does, once obtained, there’s no guarantee the house will represent the depicted drawing on the advertisement.

Should the council find fault with the developer’s plans, Mr Smith has every right to alter the specifications of the purchaser’s future home (with or without permission) and with a signed contract in place, there’s nothing concrete the purchaser can do to protest.

Imagine for example, the council disagree with the placement of the north-facing window in the downstairs living zone or want to alter the boundaries of the land.  Unless Mr Smith can resolve the issue or draw a compromise with the town planner, the whole project is under threat of demise.  Considering the amount of investment Mr Smith has made in this project, he can’t risk a fussy purchaser withdrawing from a contract based on this alone.  Therefore the contract puts in place “special conditions” to protect the developer – conditions that can’t be altered by the purchaser and lock them in for the duration.

Most contracts will state a time during which the developer will apply for the “plan of subdivision”. However these periods are generally long (sometimes in excess of 18 months), and the developer has the entire period to resolve any disputes, during which the purchaser is tied in.  Should the plan of subdivision not arrive within the stated period, the contract will be rescinded and deposit monies refunded – however the

Any new home looks great at the start of its cycle, however 10 years down the line will reveal whether it was a quality product or equivalent of a factory mass-produced item.  Developers obviously build with a guaranteed seven-year period in mind – and unless you’re familiar with the builders’ work and long-term reputation, don’t expect the property to last without fault for 10 years or more. Furthermore, it’s not unusual for significant defects – sometimes established at construction – to go “unnoticed” until after the specified period expired and age begins to kick in. The time and expense involved in legal battles of this nature is often enough to deter complaint.

When purchasing an established dwelling, it’s possible to make offers subject to a building inspection, however this option is not applicable to new home sales.  Furthermore, if there are any defects at the completion of construction, it’s not necessarily going to be an easy ride getting the issue resolved.  By the time defect has been discovered, the builder may be working on another development therefore typically hard to contact or worse still, he may have suffered bankruptcy in the interim.

Furthermore, it’s important to note that the bank cannot not provide a carte blanche guarantee they will lend against the home until construction has been completed.  Even with pre-approval the final box isn’t ticked until a valuer can inspect the finished product.  During the period of construction – which can easily take in excess of 12 months or more – the market may have fluctuated downwards and therefore there’s a significant risk the valuation could fall short of the contract price.  The purchaser may have to come up with an extra $10,000 or $20,000 to complete the contract of sale or risk losing their deposit all together.

As I specified at the beginning, all house-and-land sales come with risks attached.  This doesn’t mean a purchaser need rule them out all together – however it’s essential to walk in with eyes wide open and minimise the liability involved. A good developer will generally aim to please and complete the contract as promised, however there are no guarantees and the purchaser must allow for this.

Before you buy into the government incentives read the tips below.  You may well decide to stick to the security of real estate you can touch before you buy.

• If possible, check the builder's previous developments and get a feel for the quality and finish.

• Allow for the worst-case scenario.  Should the master-planned community fall through or fail to settle within the specified period, make sure there’s a back-up plan that won’t leave you homeless while searching for a plan B.

• Read the fine print – get the contract checked – and understand the worst of the risks involved before signing on the dotted line.

• Try and negotiate a “deposit bond” rather than cash.  Should the developer become insolvent or disappear prior to construction, tracing a cash deposit may be difficult.

Ask lots of questions!  Can you visit the site prior to construction?  Will you be consulted if changes occur to the specified plans?  Where will the deposit be held? (Usually a deposit sits in the real estate agency’s trust account and doesn’t accrue interest; however this isn’t necessarily the case with off plan developments.) Can you exit the contract if the development fails to be completed on time?

Catherine Cashmore is a market analyst with extensive experience in all aspects relating to property acquisition.