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15 March 2019

Purchasing a home - Isn’t all it’s cracked up to be

Sale, Purchase, Mortgage, Lease
New South Wales


Conveyancing - Damage - Caveat emptor

I am acting for the vendor. The purchaser has done a final inspection and has requested that a broken window be fixed prior to settlement. My clients claim it was like that when they bought the property. Will my clients need to provide photographic evidence to prove that it was already like that when the contracts were exchanged?


Thank you for the question.

It is certainly a matter for evidence and a photograph taken before exchange would be compelling evidence. However, there may still be the issue of the vendor needing to prove that any such photograph was in fact taken before exchange.

If the purchaser obtained a building inspection report before exchange, or during any cooling-off period after exchange, then that document might also provide useful evidence. Indeed, if the vendor obtained one before buying the property, then likewise. 

If they did not - and assuming there are no special conditions addressing the issue specifically in either the current contract or the previous one - then in both cases, it appears to be a situation of 'caveat emptor'.