Property Co-ownership with Friends and Family

There may be some bargain properties up for grabs at mortgagee sales but buyers need to beware. Purchasing at mortgagee auction is not without its risks. Buying a property at auction is quite different from negotiating on a standard Sale and Purchase Agreement through a real estate agent. Apart from the fact that purchasers get caught up in the excitement and pressure of the auction day they are also bidding to purchase the property unconditionally. This means that they need to have done their homework and satisfied all of their conditions (finance, LIM report, builders report etc) prior to the auction. Mortgagee auctions differ further from standard auctions in that the owners of the property have defaulted on their loan repayments and the bank, after giving them the required notice, has foreclosed and is selling the property. The auction agreement that purchasers sign at a mortgagee sale does not include many of the standard fine print clauses that are there to protect purchasers in the usual Agreements for Sale and Purchase of Real Estate and auction agreements. Some of the additional risks purchasers face buying at mortgagee auction are: 1. Not getting vacant possession on settlement date In a standard property purchase the vendor is required to give the purchaser vacant possession on settlement date unless the purchaser has specifically agreed to take over a tenant. This is not the case with mortgagee sales where it becomes the purchasers responsibility (and cost!) to evict any tenant or old owner. The purchaser is also limited by the fact they can only start the eviction process once they are the legal owners of the property which is after settlement has occurred. 2. Not being covered for damage to the property before settlement The mortgagee (bank/lender) will not compensate the purchaser or rectify and damage to the property which may occur between the time of the auction and the settlement date. There have been cases of disgruntled old owners who are upset that the bank is selling their house from out under them and trash the house, or strip the kitchens, bathrooms, door frames, windows etc and leave only a shell of a house. It is therefore essential to get insurance on the property from the day of the auction. 3. Chattels can be removed prior to settlement The basic chattels that come with a standard property purchase are floor coverings, window coverings, light fittings and the stove. Other items such as dishwashers, rangehoods, heat pumps and heated towel rails are often included in the sale and listed in the sale and purchase agreement (see article Dont Forget the Chattels for more details). In a mortgagee sale situation the chattels are commonly not included in the S&P Agreement as the Mortgagee (bank) only has security over the property and the previous owner is within their rights to remove them before settlement. 4. Not viewing the property prior to the auction Sometimes prospective purchasers do not have access to view the interior of the property prior to the mortgagee sale. This means that they are in effect buying sight unseen. It also means that the purchase may not be able to get a building inspector through the property and takes the additional risk that the property may not be structurally sound or water tight. 5. No Vendors warranties The standard Vendors warranties are typically removed from a Mortgagee Auction Agreement. This means that mortgagee will not warrant for example that the any work done on the property complies with the local council requirements and has a Code of Compliance Certificate (CCC). In summary mortgagee sales are very high risk so professional advice should always be sought prior to bidding at a mortgagee auction. Contact our team of lawyers before you go to auction!