I just got VP/keys to a subsale unit my husband and I bought, we noticed the toilet wall was hacked and piping were exposed.
We asked the vendor regarding this and he said he had to fix the leakage before we move in, however where the wall is hacked, the holes were left unpatched
He has verbally agreed to pay for the cost to fix
Since we actually planned to renovate the whole toilet, how can we claim for the damage?
can we invoke the relevant clauses under the SPA and charge the vendor unilaterally? Do we need a quotation to charge the vendor?
he might agree verbally, but when we made known to him the amount (checked with few contractors), he didn't respond to our message
Please advise.

This post has been edited by yiyi87: Apr 13 2017, 04:06 PM

ask ur subsale lawyer to check the agreement

usually there'll be a clause to say that property should be in same state and condition as at the date u view the property - when u view the property before signing SPA was the defect there?

Thanks Han for your response
no the defect wasn't there
how can we ask for compensation? what is the normal practice?
request a sum deemed reasonable for us?

This post has been edited by yiyi87: Apr 14 2017, 10:22 AM

Questions:
1. are both of you represented separately by different solicitors or just the same one?
2. check if the agreement states the sale is on an "as is where is basis" or not, if yes then you are eff'd.
3. if the agreement states that the sale is "as at the date of inspection" then probably the solicitors have the authority to retain the Balance Purchase Price but if the Vendor disputes then it is your obligation to prove what was the condition during inspection.
4. if at all parties are mutual, you can only claim the costs for rectifying the toilet back to its original state and not the costs of your desired "renovation".
5. don't text, have the solicitors put in writing (whether the vendor has verbally agreed to remunerate or not).
6. if you want to play by the books, you need to get a quotation from a few contractors and then pass it to the vendor, he has the right to choose which one he/she prefers but of course, the quality must be reasonable, as the purchaser, you cannot incur costs unnecessarily and then bill the vendor.

Thanks for your response

1) if represented differently then have your solicitor write to the Vendor's solicitors to ask them hold the release of the whatever balance due to the Vendor pending the rectification of the toilet which the Vendor has agreed, state the date.

2) "as is where is basis" means you are buying whatever you are seeing on the date, there's no arguing otherwise, this means you are eff'd if the Vendor insist on adhering to the agreement.

3) there should be a clause in the agreement allowing the solicitors to only release the monies to the Vendor after all payments that are to be paid by the Vendor has been paid, not complying amounts to a breach to the terms and stakeholders' duty.

4) you cannot disagree/disallow/prevent the Vendor's contractor to rectify the defect so as long as the quality will be reverted back to how its original state was, if you deliberately stop this rectification because of no good reason then it will be admitted that you prevented the Vendor from carrying out his good will to rectify, adverse inference against you.

From the posts above, the TS mentioned that the defect was not present when she viewed the house. But upon taking VP, she saw the defect. In this case can argue about it right?

Since you plan to renovate the whole toilet, there is actually not going to be a real loss for you because in your renovation you might be retiling or repatching that area anyway.

Of course if you can claw back some costs from the vendor it is a bonus for you. If that is the case, then propose a reasonable sum to the vendor and get him to agree.

So far the vendor still did not reply to your message about the cost?

Hardly you can argue because "as is where is basis" is to be taken and interpreted literally. What you see is what you get*. There's no warranty in the agreement that the Property will be substantially in the same state nature and condition as at the date of inspection.

This post has been edited by shaniandras2787: Apr 14 2017, 12:44 PM

Thanks all for your feedback.
We have managed to come to an agreed term - to offset the apportionment amount due to him (much lesser to the amount we requested for the fix, well at least better than nothing)

how many actually face this kind of situation during handover? my lawyer said she has never encountered such problem during handover.. from the date we signed the offer letter, til the date of handover, many things can happen during these few months, in our case the pipe leakage and thus the hacking of the wall

Does that mean the purchaser should actually take good pictures of the house before signing the offer letter? Just to prove the state of the house when the agreement was made? and after proving so, who determines what amount is fair? the clause on this is very vague

Nice to hear that everything sorted out for you and you are lucky to have met a reasonable vendor. Most vendor don't give 2 *tuuts* after the transaction is completed.

your lawyer fresh kah? if she's in practice for a long time, she will bound to face one or two cases like these and it's evident that why agreements have terms like "as at the date of inspection". this term isn't coined from air and is very common to be found in agreements where purchaser's solicitors are very professional in their drafting, solicitors like theses already think ahead and included terms so to prevent their client running into issues like these.

to be honest, attaching pictures in the agreement is by right the way to prevent disputes during handover but that also have to coupled up with proper drafting. if drafting like kindergarten quality, agreement also koyak.

if the agreement is properly drafted, the condition of the property during delivery should substantially be in the same state nature and condition as at the date of inspection but of course taking into consideration fair wear and tear. if at all there are substantial differences between the 2 dates then cite the relevant clauses and make it the vendor's obligation to rectify.

as for the costs of rectification, it shouldn't be an issue because it's the vendor's obligation to engage the contractor unless of course if the vendor refuses then the purchaser then can engage a contractor. prudent practice is for the purchaser to send the quotation to the vendor/vendor's solicitors and give them a period of 14 days to revert whether it is acceptable or not.

after that, it's basically self-explanatory.

sometimes, agreement are purposely drafted vague in some aspect as it give rise for parties to negotiate practically and it is also due to the fact that languages lack the precision of numbers. one can never be able to determine the exact intention of a person just by words itself and interpretation always needs to draw inference from its accompanying words.

so yeah =/