What constitutes a 'major structural defect'?

20/01/2011

Question: My husband and I recently signed a contract of sale for a property passed in at auction that was subject to a building and pest inspection. When we signed the contract we understood that there was no cooling-off period, and we noted that there was a clause saying that the contract could only be ended if the building and pest inspection found ‘major structural defects’. What constitutes a ‘major structural defect’? The property report came back with a list of major repair works that were required, including the demolition of an unsafe carport, though there were no major structural defects reported for the house itself. We want to terminate the contract but have already paid $1,000 and are expected to pay a 10% deposit within a matter of days. What are our options?

Answer: You have asked a very complicated and technical question. It is necessary to obtain more detailed information as to the exact terminology used in the clause saying that the contract could only be ended if the building and pest inspection found ‘major structural defects’. It will be necessary to obtain an expert report from a building consultant as to the precise nature and extent of defects.

As a general guide only, the question of what constitutes ‘major structural defects’ is one of legal interpretation which will be determined by reference to advice provided by an expert building consultant and by reference to the clause in which the phrase is used.

An unsafe carport that requires demolition might constitute a major structural defect in the context of the agreement you signed if the relevant clause gave you a right to terminate the contract if the pest and building inspection found a major structural defect in any part of the property.

It is recommended that you seek legal advice from a properly qualified and experienced solicitor as soon as possible in order to discuss your options.

George Vlahakis

George Vlahakis is a solicitor with Kydon Segal Lawyers