Exiting a S&P contract due to weathertightness issues

Jodie asks:
(updated on Monday, July 05th 2010)

We have a house a building inspector identified as being high risk (Over 11 problem areas) with a non invasive moisture meter The sales and purchase agreement says we must give the vendor reasonable time to fix the problem. As the house shows these high risk factors we should be able to just get out of the contract? Or do we have to conduct invasive testing and then say the entire house needs recladding before we can walk away? I am not sure where to go to look. Are there precedents or classic points of law in leaky homes for this?

Our Experts Answer:

Time is normally of the essence during countdown for purchases going unconditional. The issue is how to fix what? If the agreement has not yet been completed I would suggest this approach.

My rule - 'proof of product'. This is the vendor should provide you with meaningful and factual information about the home - you should not be the one to determine if it needs fixing? To satisfy my 'proof of product sellers should satisfy these questions: Does it have treated framing (and is the treatment level high enough to resist decay from wetting), is the home leaking now and if so what will it take to fix it (and some history of performance - not just hearsay like I've never noticed a leak' or scans from non invasive meters as these are not actually moisture meters but radio type scanners of density, or it did leak and its been fixed - how? Was it appropriate?), does it have decay under or around these 11 points or more (non invasive meters don't provide this) and have they been following a set maintenance plan (if they haven't then there's a good chance things have been left to fester away). This information should be forthcoming at the sellers cost - after all its their home.

I would suggest you take this to your lawyer and suggest that a condition is attached to the contract that a further investigation be undertaken using invasive testing (see www.moisturedetection.co.nz. - moisture probes are a suitable process as they cause no damage to cladding) be undertaken forthwith due to the 'high risk nature and issues identified in the pp report' and that if detrimental results are identified the seller pays for the investigation (and obviously that is grounds to cancel the deal), but if its gets an 'all clear' then you would proceed. You should not proceed if the seller dismisses this process as they obviously don't want things discovered that may later cause you considerable cost. I would be really cautious if the home was built since 1990.

Ian has 25 years experience in the building industry and is the pioneer of home monitoring. Ian specialises in assessing building performance and condition as the head of the Step Up Group of companies, a multi disciplinary group encompassing all aspects of building investigation, preparing maintenance and repair plans, assisting in purchasing and selling of homes, warranty claims and matters to do with Building Act compliance


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