By Barry Pound, Director and Licensee, beagl
In more than 35 years working in real estate across Australia and New Zealand, I have seen property transactions from almost every angle. I've owned and operated four LJ Hooker offices in WA, run conveyancing and finance businesses, chaired the Council of Franchise Owners for LJ Hooker across Australia and New Zealand, and I'm a licensed real estate agent and licensed conveyancer. Today I also sit as a Sessional Member of the State Administrative Tribunal, hearing matters relating to real estate and conveyancing, and I act as an expert witness in property disputes, helping define the rights and obligations of sellers and buyers both before and after settlement.
That work gives me a clear view of where transactions go wrong. And one of the most common, and most avoidable, problems comes down to two words: caveat emptor.
Let the buyer beware
Caveat emptor is Latin for "let the buyer beware". It's a principle that has shaped property law for centuries, and it still matters today. In simple terms, it places the responsibility on the buyer to satisfy themselves about the property before they commit to it.
Most buyers understand this when it comes to the initial building and pest inspection. Where they get caught out is later in the process, when the seller has agreed to complete repairs or works before settlement.
The work everyone assumed was done
Here's a scenario I see far too often.
A building inspection identifies a problem. The buyer asks for it to be fixed, and the seller agrees to engage a tradesperson to complete the work before settlement. The tradesperson attends, the seller is told the job is done, and everyone moves on. Settlement approaches, nobody goes back to check, and the property transacts.
Then the buyer moves in and discovers the work wasn't completed properly or wasn't completed to the standard the building inspector called for.
In these cases, both parties have usually acted in good faith. The seller genuinely believed the job was finished. The buyer assumed it had been. But assumption is not due diligence, and once settlement has occurred, the buyer is in a very difficult position.
Why settlement changes everything
The key points many buyers don't realize is that there is no seller's warranty on those works. The seller isn't a builder, and they aren't guaranteeing the tradesperson's workmanship. Once the property is settled, no warranty from the seller on the quality of the works survives settlement.
There's also a practical problem that is often overlooked. Once the property has transacted, the seller no longer has any right to enter it. They can't come back to view the work and assess what went wrong, and they can't send the tradesperson back to rectify the problem. Even a seller who wants to make things right has lost the ability to do so.
The result is that the buyer is left to fix the problem at their own cost, or to pursue a dispute that is likely to be slow, stressful and expensive, with no guarantee of a satisfactory outcome. From the cases I've seen, this is a fight buyers are far better off never having to start.
The window that matters most
Tradespeople don't always complete work to the standard a building inspector expects. That isn't necessarily a criticism. Sometimes a job is rushed, the scope is misunderstood, or the trade simply isn't aware of what the inspector identified.
This is exactly why the period between the work being completed and settlement is so important. It's the buyer's window of leverage. During this time, a buyer can:
Once settlement happens, that leverage is gone. All buyer due diligence must be done before settlement, not after.
What the Joint Form says
Most residential sales in WA are governed by the Joint Form of General Conditions for the Sale of Land, and the 2022 edition reinforces this in several ways.
Your pre-settlement inspection. Under clause 5.1, the buyer is entitled to inspect the property once within the 5 business days before possession, specifically to check that the seller has met their obligations under the contract. If that inspection turns up items the seller still needs to rectify, the buyer can give the seller notice of those items and is entitled to one further inspection before possession to check they've been fixed. Use both.
Why does the wording of your repair clause matters. Clause 9.3 says that if the seller breaches one of the standard warranties in the General Conditions, the buyer has no right to terminate, delay settlement or withhold any part of the purchase price unless the parties agree otherwise. Any claim must be pursued afterwards. That's why agreed works should be written into the contract as a clear special condition to be satisfied before settlement, not left to a general promise. How that clause is drafted can decide whether you have leverage at settlement or a legal claim after it.
The 10-business-day clock. Clause 15 deals with errors or misdescriptions in the contract relating to the property's physical structure or features, its boundaries or its land area. A buyer who wants compensation for one must give the seller written notice of the claim within 10 business days after the possession date. Under clause 15.4, miss that deadline and the right to claim compensation is lost. Even this narrow post-settlement right is short-lived, and it only helps buyers who check the property straight away.
The message is consistent: the contract gives buyers tools, but they are time-limited, and almost all of them point back to acting before settlement.
Why professional representation matters
Most buyers only purchase a handful of property in their lifetime. They're juggling finance, removalists, work and family, and the final weeks before settlement are often the busiest of all. It's completely understandable that a re-inspection can slip through the cracks.
This is where having a professional on your side makes a real difference. A buyer's agent who understands contracts, conditions and the settlement process will make sure the right questions are asked at the right time. We make sure agreed works are documented clearly in the contract, that a re-inspection is booked before settlement, and that any shortfall is raised while there is still time to act.
We also work alongside your settlement agent or lawyer, so nothing falls between the gaps. It's the kind of detail that rarely makes headlines, but it can save a buyer thousands of dollars and a great deal of heartache.
Our approach at beagl
At beagl, we believe the best disputes are the ones that never happen. My experience in tribunals and as an expert witness has shown me time and again that most post-settlement problems can be prevented with careful planning and proper checks before the keys change hands.
If you're buying a property, don't buy blind. Make sure someone is looking out for your interests right through to settlement, because after that, the buyer truly needs to beware.
This article is general information only and is not legal advice. Your rights and obligations will depend on the terms of your contract, so speak with your settlement agent or lawyer about your specific circumstances.
