we liked the house to buy. It has a spa. The agent said that it is also included along with dishwasher etc.
We made the offer and it was accepted by the seller.
We were progressing through finance approval and now the agent says it is not included in offer as the owner is not interested to sell it.
In the meanwhile when v ask for explanations he denies to respond.
What is the procedure to raise a complaint on this issue ? We don’t need the spa desperately . But the agents false promise and his current behaviour hurts.
The real estate industry is not known for being on top of the integrity ladder at the best of times although is usually well above the pollies.
I’ll assume the spa was portable, eg not built in like an in-ground pool or tub. Unless there was a written inventory of portable appliances and equipment included, it could become a ‘he said-she said’ as to whether it was included, but I understand your chagrin that regardless if there was misrepresentation or misunderstanding (even by the estate agent) that while not responding is bad form it is not anything that will result in a censure or ‘please explain’ notice without that aforementioned inventory.
Some reality is that making formal complaints makes us feel better but is also the case that when our complaints are ignored or fobbed off it raises our ire further by revealing how powerless we are as individuals where there is no clear legal issue in play.
If you are going to make a formal complaint be sure to include exactly what you want as an outcome, and be prepared for anything from ‘thank you for telling us’, crickets, an apology, or a spa. Using the ACCC complaints template could be helpful.
The Real Estate Institute of Australia has links to each state organisation as well as to state tribunals. Note these ‘Institutes’ are not ‘services for consumers’, they are ‘trade organisations’ and can be counted on to act accordingly.
Your state tribunal might be the best agency to contact if you desire to make a claim for the cost of the ‘missing’ spa rather than only make a complaint.
If you proceed please let us know how you go as it could be helpful for others who may find themselves in a similar situation.
Goods and chattels (not fixtures or the building) should be specified as inclusions on the contract…usually in the schedule as additional special clauses.
Was the apa and dishwasher included in the contract as good and chattels?
If yes, then the seller is bound by the signed contract and the spa and dishwasher must be included as part of the sale. If the seller decides to change their mind, then this would be a breach of contract and it is worth getting legal advice (e.g. conveyancing solicitor) to where you stahd and what actions are available to you.
If no, then the seller has the right to keep them after the sale. While a seller or agent may say that they will/can be included, it is up to the buyer/sellernto ensure that these items are included in the contract. If they aren’t included, it is possible that you have no right to them as part of the house purchase. It may be able to negotiate their purchase outside the contract, Again, it is worth seeking legal advice on this as well.
It is also worth noting that if you signed the contract without the dishwasher or spa specifically included in the sale, then one could argue that you accepted tbe purchase of the property on this basis.
An interesting article regarding what to leave, take or specify.
“Fletcher and Graney agree that dishwashers tend to cause the most headaches, as they fall into a grey area between fixtures and chattels, so best practice is to list the dishwasher in your contract as either an inclusion or exclusion depending on your personal circumstances.”
What you can’t take when selling your home
“built-in dishwashers (if free-standing, specify in contract)”
I thought it depended on whether they fixed or not. So a fixed light fitting goes with the house but a table lamp goes with the vendor, unless specified otherwise in the contract. The spa and dishwasher could be either, do we know which type they are in this case?
That is right…if they are a fixture, then unless it is specified as being removed in the contract, they form part of the sale.
Goods and chattels are everything else which is not part of the building (inc. fixtures) or land/property. If the dishwasher is not built in and the spa is movable, then these would be part of goods and chattels.
