Imagine moving into your newly purchased property only to discover a few months later that your dream home has a devastating termite infestation.  What can you do about it?

It might shock potential property purchasers to know that vendors do not have a positive obligation to point out quality defects if that defect is apparent from an inspection of the property.

What is a quality defect?

Quality defects include termite infestations, structural issues, noise issues, town planning restrictions and heritage listing.

Buyer beware unless the vendor is actively deceitful

Vendors do not have to tell you everything. So far as defects in quality are concerned, the rule still is caveat emptor – buyer beware. The onus is on purchasers to satisfy themselves as to the state of the property. It is not the vendor’s responsibility to disclose a property’s every imperfection, even if the quality defect is hidden from view.

What can you do?

The effect of the caveat emptor principle is that you won’t be entitled to terminate the Contract if you discover a quality defect. However, if a vendor:

this may amount to contractual fraud or misrepresentation, or misleading or deceptive conduct under the Australian Consumer Law.

Quality defects cases

How can I protect myself?

  1. Inspect the property yourself, as many times as possible. If you haven’t done this, you have almost no chance of success in a claim against the vendor.
  2. Obtain pest and building inspections. If possible, try to attend the property with the inspector.
  3. Ask your lawyer about obtaining a building certificate and survey from the Local Council, and a Planning Certificate if one is not attached to the Contract.
  4. Ask a lot of questions about the property and make notes. Cases on quality defects require you to prove that the vendor knew more than he or she let on, so the more questions you ask, the easier it will be to prove a vendor has been actively deceitful.