If you need to borrow money then you should always insert this condition and ideally give yourself 10 working days or more, so that there is plenty of time to obtain a valuation if required by your bank. ‘Pre-approval’ from a bank or other lender does not necessarily mean that you will get finance. Banks almost always want to see the Sale and Purchase Agreement and if you are buying a property that they consider a risk then they could still withdraw their offer. The specific security property has to be acceptable to your bank.
Auckland has a very wet climate and houses rot. There is leaky building syndrome for houses built between 1990 and 2005 and which have possibly been constructed without treated timber or an appropriate cavity system. These pre-purchase building inspection reports are now widely considered as essential to obtain as part of your due diligence investigation in purchasing a house or unit and regardless of the dwelling age. A new property may have a Code Compliance Certificate, this doesn't mean it is built well. Even in regard to minor problems such a report can not only give you peace of mind but can allow you to negotiate with a vendor to reduce the price or rectify the defects.
All purchases should be made conditional on a satisfactory Council LIM report, and this also applies to newly built houses. Not only does a LIM cover whether there are appropriate building permits or consents or code compliance certificates for any dwellings, carports, garages and other buildings or structures (and retaining walls), it also covers other important issues such as resource consents (to undertake for example the felling of trees, possibly building closer to the boundary on the infringing of other site coverage rules). In short you need to see the Council LIM because it is the Council’s written report concerning the property. In some circumstances it may be wise to also visit Council to view plans held on their file to see that the present house is consistent with the plans.
A LIM may not be as relevant when buying bare land. In such a situation you need to visit Council to fully discuss what their rules are in allowing any development of the property, building of a house etc and any special requirements concerning the site. Such investigation would be far beyond what a LIM will tell you. Talk to us further about this.
You may be persuaded to get a Property Bag Report from Council. More experienced purchasers may have the knowledge to know what they are looking for. However we strongly recommend LIM reports. In particular a LIM request forces the Council to review their file and place their information on a property into a written report. You can then rely on this report (hopefully!) at a later date should records be lost or misplaced or if a subsequent LIM (by say a purchaser to whom you are later selling) is inconsistent or incorrect. A Council Property file can be very useful when viewed together with the LIM report to provide fuller detailed information. The property file will usually have the floor plans where the LIM report will not.
A less common condition but useful say if you are new to the market and cannot work out what a property is worth or for whatever reason are wanting to be careful that the price does stack up.
A very useful condition which allows you time to investigate all matters relevant to the property, including those which may not initially be apparent such as the neighbourhood, local schools, transport, adjacent or nearby developments, zoning issues, etc.
It is also useful as it allows you more time to reconsider your purchase. There is no cooling-down period in NZ so once you sign up then you are under pressure to fulfill only the conditions you have added to the agreement and not wider issues that may also be relevant. A due diligence condition allows you the freedom to do all your research over a period and then to cancel without the need for explanation. Real Estate negotiations are high pressure and emotional, so be careful. A due diligence condition is invaluable if you find yourself suffering buyer’s remorse.
Be aware that a "solicitor's approval" clause is more limited than a due diligence clause. We strongly recommend use a due diligence clause.
The Unit Titles Act now requires the vendor and the Body Corporate to make a series of written disclosure statements before and after the signing of a sale contract. However, in the contract we recommend adding a condition requiring the vendor to arrange disclosure of the Body Corporate’s minutes, resolutions and correspondence to the unit owners over the past 24 or 36 months.This may assist discovery of leaky building issues or other expensive repairs contemplated or arranged, or other problems.
If you are purchasing a house off plans or still being built then there are significant issues that you need to discuss with us before you sign up. Amongst other things you will need a “sunset clause” so that you can cancel and get your money back if the developer fails to complete the house by an agreed date, of if title fails to issue.
Before you sign a Sale and Purchase Agreement check that all appliances in the house work and write them into the Agreement: dishwasher, rangehood, garage remotes, alarm etc. You will be buying the house as it is at the time of inspection so if you want something fixed (or if you want that old car or pile of bricks removed from the section) then write that into the contract. Never rely on verbal agreement or advice. “GET IT IN WRITING” will be the cheapest and simplest advice you ever get.
There are no hard and fast rules as to the amount that is offered as a deposit. The deposit is totally negotiable between the purchaser and the vendor, with the industry standard being 10% or a fixed amount close to this. Never pay more than 10 % deposit and ensure that it is paid to the vendor’s lawyer or licenced real estate agent so that it is held in trust until the Agreement is unconditional. If there is a new title yet to be issued, or the property is awaiting a Code Compliance Certificate, then the deposit must be held undisbursed until these are satisfied. We recommend that you talk us before signing any offer so that we can provide you with the correct advice.
The standard agreement provides that if no other wording is added to the deposit amount, then the deposit is due for payment upon acceptance of the offer. This can need amending and we further comment as follows:
Deposit advice for a Purchaser: Never pay the deposit directly to the Vendor. Pay the deposit to the Real Estate Agency or the vendors’ Solicitor's Trust Account. Whatever the agreed amount, we recommend that you always add the words after the amount “payable upon the unconditional date”. Remember the lower the deposit accepted the better for you. A Vendor will soon negotiate a higher deposit if it is not acceptable to them. The flip side of the coin is that the Vendor is looking for commitment to the Agreement, and an amount that reflects that.
Kiwisaver funds for the deposit: If you are wanting to access Kiwisaver funds to use for your deposit please tell us before signing an offer as we may need to amend your deposit clause. We will also need to check your Kiwisaver provider requirements for using these funds as a deposit (as there are some restrictions) and the turn-around time to access the funds. Please be careful to take advice from us first before signing an offer as this can be a common trap.
Deposit advice for a Vendor: You want the deposit to be as high as possible and payable immediately upon the acceptance of the signed Agreement. This shows the commitment of the purchaser. Ideally you want 10%, and as a minimum enough to cover Real estate commission and legal fees should the purchaser fail to settle after confirming the Agreement unconditional. If you are relying on using your deposit for the purchase of another property, you need to obviously calculate the amount you need, and the timing of the funds being released to you. Remember if a Real Estate agent is involved they will take their commission before releasing you the balance of deposit. Any balance will not be released to you until the Agreement is unconditional and the agent has held the deposit in trust for the statutory ten working days.
The deposit is a crucial term of the agreement that requires careful consideration . Please call us to discuss. Our assistance will result in a smooth and safe transaction.
Please call us to discuss your particular purchase requirements so we can recommend the appropriate clauses to suit your Agreement. An Agreement properly formed at the beginning with our assistance will aid in a smooth purchase transaction.