Residential Settlements

Sloppy Contract Almost Leads to Transfer of the Wrong Property

How the lack of title particulars on an offer almost led to costly and embarrassing delays in settlement.

In a recent settlement, lack of title particulars (added information that helps identify a property) on the Offer and Acceptance (or O&A) almost led to transfer of the wrong property!

Our client, the buyer, was purchasing a vacant block as part of a strata. When the O&A arrived at our office, it lacked the volume and folio numbers and lot details (even though these were readily available). Instead, only the address of the property, and the seller’s name, were present.

After ordering a title search that matched the address provided, and processing all the relevant documents as per that search, I sent the client initial documentation. These documents included identification of the title being purchased by highlighting the relevant lot boundaries based on the title particulars available from the search.

Our client signed the required document confirming these details as being correct.

Based on this identification the transfer was prepared, signed by the purchaser and forwarded to the seller’s settlement agent for signing by the seller. I then received a call from that settlement agent advising me that all the Title particulars – including the lot number, plan number, and volume number, and folio number – were incorrect!

The title I had processed documents for had matched the address and seller given on the offer and acceptance – but those details were ambiguous. The address had read 1/23 Example Road* – suggesting the property was Unit 1, at 23 Example Road. But the address the seller’s real estate agent had meant  was lot 1, 23 Example Road – a different property altogether, being sold by the same seller. Because there were no title particulars listed on either the Offer and Acceptance or the settlement instructions sent by the agent we had no way of knowing that they didn’t mean Unit 1.

An example diagram of the strata layout
By this time, the buyer’s bank had already prepared mortgage documents, but we were able to have these amended and a new Transfer of Land document prepared.

If the mistake had not been noticed and corrected, the seller would have transferred to the buyer a larger block of land complete with a family home, not the smaller empty block they had agreed on. Despite the significant problems such a mistake would create, the buyer’s real estate agents had failed to include any title particulars on the the O&A.

When writing an offer it is important (read: essential) for real estate agents to accurately identify the property being purchased.

This would usually include noting the title particulars including the lot and plan numbers and volume and folio details. As an additional safety measure it’s best practice to attach a copy of the search to your settlement instructions.

Without these, the settlement agent involved may misinterpret the address, and the client may end up buying or selling the wrong property.
* Address has been changed for privacy reasons