Purchasing property can be an exciting time. Emotions are high, as often too is the price-tag.
In 2017, Matthew and Amy Hyder, purchased a four-bedroom Bellevue Hill mansion for $9.4 million, $400,000 over its nominated value. A major selling point of the property for Mr and Mrs Hyder was the advertised private off-street parking that the selling agent, McGrath, had highlighted. The property settled and the Hyders moved in.
After the Hyders had moved into the property, it became apparent that tradesmen working on the neighbouring property were parking their vehicles in the Hyders’ “private” parking area. After expressing concern to their neighbour, the Hyders was told that the parking area was part of a legal a right of way on the shared driveway and not a parking bay exclusive to the Hyders.
The Hyders commenced proceedings against McGrath in the NSW Supreme Court over “misleading and deceptive conduct”. Mrs Hyder, who signed the contract for the sale of the property, made a claim based on the inaccurate description about private parking in McGrath’s advertisements and pleaded that the property was consequently worth less than what the Hyders had paid. Mr Hyder claimed that the property had been purchased for a sum greater than the valuation that had been conducted on the property because of his wife’s emotional attachment to the property.
Justice Guy Parker stated that McGrath had indeed been misleading and deceptive in their advertising, but as the selling agents, McGrath had relied on the vendor’s information. Subsequently, the claim was dismissed and Mrs Hyder was ordered to pay McGrath’s legal fees. Justice Parker held that the right of way was disclosed in the contract. The Hyders did not have any legal representation at the time of entering into the contract for the purchase of the property and as a result did not obtain legal advice on the consequences of the disclosed right of way, even though they had the opportunity to do so.
Whilst the Hyders had been quick to blame McGrath for their loss and damage, by neglecting to take “reasonable care” of their own interests, and by proceeding with the purchase based on emotion and not the minutiae of the contract for sale the Hyders were deemed by the Court to have inflicted the loss on themselves.
Justice Parker claimed that “any reasonable purchaser of property, who was purchasing because of ‘supposed rights’ would have sought specific advice on an entitlement to do so.”
So, what can we learn from the Hyders?
Buyers ought to become informed about rights of way and easements ahead of time. The Hyders could have avoided disappointment, loss, and time wasted, had they sought advice from a property lawyer or conveyancer. Their assumption that a part of the property was considered ‘private’ did not necessitate that it was.
This is only one small example of the multitude of issues and hidden matters that may arise within a property transaction, and highlights the need to get proper and sound legal advice on all aspects of the Contract and transaction before proceeding, including the type of property title you choose, or whether you’re exposed to the risks of buying off the plan. If you are seeking to purchase or sell a property, Long Saad Woodbridge Lawyers’ property team is ready to assist. We are contactable on (02) 9279-4888.
Important Disclaimer: The content of this article is general in nature and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.
