I need to write. Stress stress stress Wow. Nothing like a good legal drama to get the blood pumping. We were thinking all we need now is to uncover a government conspiracy and a few murders and we have all the ingredients for a true life high court Grisham drama.
We spent three hours this afternoon on the phone to various commercial litigators from the best law firms in Christchurch and got a good dose of reality. For a start it would go to the High Court, could take 2 years and 60-80k worth of fees to resolve and at $370 per hour billable rates its easy to see why! But despite this they all say our case is good, but that nothing is certain in court.
To the credit of most of the lawyers we spoke to they have all been extremely helpful giving us free advice and trying to help us get enough 'untenantability' testimonials together to avoid court. However Harcouts the Real Estate agents have also entered the arena with their own big hitting lawyer and have taken their 17k commission out of our deposit and will not be refunding this, which is well within their legal right. But in lawyer speak its not worth going to court over something as small as this! F$#*!
The settlement notice expires on 10th November so we should know whether the vendors will take court proceedings, extend the notice or walk away with a big loss.
Alex
Thursday, October 28, 2010
Friday, October 22, 2010
Munted
munted (ˈmʌntɪd)
— adj
1. (of an object) destroyed or ruined
2. (of a person) abnormal or peculiar
3. informal drunk or intoxicated
Collins English Dictionary
The kiwis really have invented one of my favourite words to date. Munted seems to sum it up. Here is a not so brief update on what has been going on at Albert.
The vendor agreed to the new settlement date of 21st October however several issues seem to have conspired over the last month to stop our house purchase from being completed.
1. -
The Earthquake commission has outsourced all the project management of the earthquake residential repair process to a building contractor, Fletcher. Christchurch City Council has in turn made the short term decision NOT to require earthquake related building repairs to meet current building code, thus allowing a brick veneer wall to be reconstructed without upgrading structural bracing capacity or insulation levels to current building code. This obviously means that houses will get repaired quicker(less building work per house) however misses the opportunity to upgrade 40% of christchurch's building stock to a good energy efficient standard at minimal cost and time penalty. The appointment of Fletcher has also removed control of the repair / construction process from building owners, which means we no longer have the opportunity to use the earthquake as an advantage to appoint our own builder and upgrade the wall with bracing, insulation and building paper. In fact even if the owner requests the wall be upgraded and pays the extra sum towards the cost of the upgrade it is likely that this will be denied as it will 'unneccessarily' tie up the builders and lengthen the repair process. What hope has the world when this short term view is still prevalent in the 'developed' world.
2.
A structural engineers report and subsequent laser survey of the foundations revealed that the perimeter foundations of albert were 130mm out of level. The corners next to the stream were the lowest levels and this was consistent with the idea of the site subsiding laterally towards the waterway which was consistent with the damage to the waterway retaining wall along the house edge. We therefore made the difficult decision to attempt to withdraw from the sale and purchase agreement as rectifying and relevelling the house would open pandoras box and expose us to a huge amount of risk. Replacing brick veneer and insulating is one thing, jacking up the house is a whole different proposition and not one that we want to take on. We now find ourselves trying to extract from the unconditional auction sale and purchase agreement.
3.
Meanwhile in suit land the insurance companies are still applying a blanket policy on home insurance. No matter what the media states the reality is that any house with ANY (even plasterboard cracks) earthquake damage cannot be insured. We thought we were getting somewhere with IAG when we sent through the engineers report and asked them to highlight which items they would need repaired before considering insuring us. The report was returned via email, every sentence in the report highlighted! This brings the real estate industry to its knees but in iteslf is not a reason for us to break the sale and purchase contract as there is no clause in the contract to allow such withdrawl on these grounds. Perhaps if anyone has any leverage with the Law society they could lobby for change in the poor 'standard forms of contract' that currently don't really make allowance for any 'acts of god'.
So bearing in mind the above our Solictor wrote to confirm our termination of contract under the one term the contract does allow for termination, 'untenantability'. With the evidence for this withdrawal the engineers report that states "A builder shall take down all the damaged veneer to make safe and
remove the falling hazard. Until such time we recommend the house
is not used. Take care around the exterior of the house."
Unfortunately the term 'untenantability' has not been defined by any case law and as such is up for expensive (lawyer) debate. The vendors, possibly smelling this, responded in kind with a notice of settlement, which in lay terms means we have 12 days to settle or face losing our 30k plus deposit and face legal proceedings, based on the fact they do not believe the property is 'untenantable'. Oh and if we lose, not an option hopefully, we could face interest charges that amount to $125 per day! I wish I could invest with this bank!
Meanwhile Alex is trying to concentrate at work issuing full Tender documentation on his New Plymouth Hospital Project and Amms write some proposal. Needless to say the job suffered a little this month!
So status of play as of tonight, 22nd October, is we take it to court and if we win might get 40% of our lawyer fees back, or if we lose, lose our 30k deposit, have to pay 20k lawyers fees and possibly be forced to settle on a property that is probably now only worth half what we offered! My only belief is in the common law Duty of Care and that it would have to be a very brave judge indeed to say that we must live in a property that a structural engineer has recommended be left unused.
Maybe Chch is trying to tell us something. I think we will stick to renting from now on!
We are meanwhile bracing ourself for the third challenge as things always come in threes. So far 2010 has been quite an exciting year. 1 -XPD spider bite, 2. 7.1 earthquake, 3.- who knows, but we'll warn chch before we make an offer on our next house.
love the a team.
— adj
1. (of an object) destroyed or ruined
2. (of a person) abnormal or peculiar
3. informal drunk or intoxicated
Collins English Dictionary
The kiwis really have invented one of my favourite words to date. Munted seems to sum it up. Here is a not so brief update on what has been going on at Albert.
The vendor agreed to the new settlement date of 21st October however several issues seem to have conspired over the last month to stop our house purchase from being completed.
1. -
The Earthquake commission has outsourced all the project management of the earthquake residential repair process to a building contractor, Fletcher. Christchurch City Council has in turn made the short term decision NOT to require earthquake related building repairs to meet current building code, thus allowing a brick veneer wall to be reconstructed without upgrading structural bracing capacity or insulation levels to current building code. This obviously means that houses will get repaired quicker(less building work per house) however misses the opportunity to upgrade 40% of christchurch's building stock to a good energy efficient standard at minimal cost and time penalty. The appointment of Fletcher has also removed control of the repair / construction process from building owners, which means we no longer have the opportunity to use the earthquake as an advantage to appoint our own builder and upgrade the wall with bracing, insulation and building paper. In fact even if the owner requests the wall be upgraded and pays the extra sum towards the cost of the upgrade it is likely that this will be denied as it will 'unneccessarily' tie up the builders and lengthen the repair process. What hope has the world when this short term view is still prevalent in the 'developed' world.
2.
A structural engineers report and subsequent laser survey of the foundations revealed that the perimeter foundations of albert were 130mm out of level. The corners next to the stream were the lowest levels and this was consistent with the idea of the site subsiding laterally towards the waterway which was consistent with the damage to the waterway retaining wall along the house edge. We therefore made the difficult decision to attempt to withdraw from the sale and purchase agreement as rectifying and relevelling the house would open pandoras box and expose us to a huge amount of risk. Replacing brick veneer and insulating is one thing, jacking up the house is a whole different proposition and not one that we want to take on. We now find ourselves trying to extract from the unconditional auction sale and purchase agreement.
3.
Meanwhile in suit land the insurance companies are still applying a blanket policy on home insurance. No matter what the media states the reality is that any house with ANY (even plasterboard cracks) earthquake damage cannot be insured. We thought we were getting somewhere with IAG when we sent through the engineers report and asked them to highlight which items they would need repaired before considering insuring us. The report was returned via email, every sentence in the report highlighted! This brings the real estate industry to its knees but in iteslf is not a reason for us to break the sale and purchase contract as there is no clause in the contract to allow such withdrawl on these grounds. Perhaps if anyone has any leverage with the Law society they could lobby for change in the poor 'standard forms of contract' that currently don't really make allowance for any 'acts of god'.
So bearing in mind the above our Solictor wrote to confirm our termination of contract under the one term the contract does allow for termination, 'untenantability'. With the evidence for this withdrawal the engineers report that states "A builder shall take down all the damaged veneer to make safe and
remove the falling hazard. Until such time we recommend the house
is not used. Take care around the exterior of the house."
Unfortunately the term 'untenantability' has not been defined by any case law and as such is up for expensive (lawyer) debate. The vendors, possibly smelling this, responded in kind with a notice of settlement, which in lay terms means we have 12 days to settle or face losing our 30k plus deposit and face legal proceedings, based on the fact they do not believe the property is 'untenantable'. Oh and if we lose, not an option hopefully, we could face interest charges that amount to $125 per day! I wish I could invest with this bank!
Meanwhile Alex is trying to concentrate at work issuing full Tender documentation on his New Plymouth Hospital Project and Amms write some proposal. Needless to say the job suffered a little this month!
So status of play as of tonight, 22nd October, is we take it to court and if we win might get 40% of our lawyer fees back, or if we lose, lose our 30k deposit, have to pay 20k lawyers fees and possibly be forced to settle on a property that is probably now only worth half what we offered! My only belief is in the common law Duty of Care and that it would have to be a very brave judge indeed to say that we must live in a property that a structural engineer has recommended be left unused.
Maybe Chch is trying to tell us something. I think we will stick to renting from now on!
We are meanwhile bracing ourself for the third challenge as things always come in threes. So far 2010 has been quite an exciting year. 1 -XPD spider bite, 2. 7.1 earthquake, 3.- who knows, but we'll warn chch before we make an offer on our next house.
love the a team.
Sunday, October 10, 2010
Quick update
In discussions with the vendor we extended our settlement day to 21 October but that day is coming up fast and we are still no where near getting an EQC assessor or insurance for the house. So we are still pretty much in 'No Mans Land' waiting for the aftershocks to stop (I think we're up to at least 1300 now) and for the insurance companies and EQC to sort themselves out.
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