Saturday, May 21, 2011

Watch Out For Illegal Conduct of Developers!

A legal case from last year again shows that developers and real estate agents of off-the-plan projects lie to trick people into purchasing. One common trick is to misrepresent the number of apartments sold and the number remaining for sale. (See this prior post.) Another trick, as this case demonstrates, is to have contracts signed at a high price but have an under-the-table rebate -- so that subsequent purchasers don't know the true pricing. Another tactic is for the agent to say that the developer has "stuffed up the pricing" so get in quick today before the developer realises and increases the price.

The case is Stumer Investments Pty Ltd v. Azzura Holdings Pty Ltd [2010] QSC 352 (20 September 2010), involving the off-the-plan purchase of a Gold Coast apartment.

"... Ms Greenwood and Mr Gaffney contracted to purchase an apartment, lot 80, by a contract with the defendant dated 27 December 2006. Their contract specified a price of $508,400. However, on a separate page it contained a special condition, handwritten by Ms Greenwood, which was as follows:

"The settlement to be on forty-five (45) days, but if settlement occurs within thirty (30) days, there will be a rebate of one hundred thousand dollars ($100,000)."

Their evidence is that Mr Kemm asked them to contract in these terms, the mutual intention being that the price would be $408,400, because he thought it desirable that it be represented that this apartment had sold for $508,000, which Ms Greenwood said had become the list price by the time of their contract.

Whilst Mr Stumer knew that Ms Greenwood and Mr Gaffney were themselves buying an apartment, he was unaware of the price and of its significant discount upon the listed price. There is no specific complaint that the non-disclosure of her contract price was misleading and deceptive. However, that non-disclosure, in the circumstances of the long friendship between these individuals, does not enhance her credibility. More importantly, the fact that Ms Greenwood and Mr Gaffney were prepared to facilitate a misrepresentation of their contract price to other potential buyers is relevant to their credibility."

In this case, the real estate agent made misleading statements about the likely future value of the apartment. The contract was cancelled by the court.

Also, have a look at this prior post.

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