26.02.2017
Sales contract with a developer – special points - Eyal Gur, Advocate & Notary
A lawyer representing you who specializes in real estate and property taxes will certainly insist on a number of important points in the contract with the developer, which will have been drawn up by the developer’s lawyer.
Appendices to the contract
In accordance with the Sales (Apartments) Law, 5733 – 1973, the developer must attach the following appendices to the sales contract: Technical Specification for the apartment, in accordance with the formulation stipulated in the Sale of Apartments Order (Specification Form), 5734 – 1974, layout of the apartment, plans of the ground floor (with support columns), of a typical floor and of the roof.
There should also be attached the plan of the plot as required for submission to the local authorities. When checking the plans it is important verify the position of the apartment being purchased, the directions the apartment faces, and also that there are no ecological or environmental hazards in the locality, such as industrial buildings, noisy roads, cellular antennas, electricity substations etc.
Make sure that there is an appendix to the contract with the payments schedule, an appendix listing changes including the costs of changes and/or additions, as well as an appendix of additions to the basic contract.
You should be aware that any verbal undertaking or agreement, or ones that appear in a brochure received from the developer and that do not specifically appear and are not defined in the sales contract, will be extremely hard to require and enforce at a later stage. Therefore ensure that every “promise”, “agreement” or “understanding” between you and the developer appears explicitly and unambiguously in writing in the contract.
Below are various important points that should be taken into consideration when purchasing an apartment from a developer:
The price stated in the contract should be final and inclusive of VAT, the parking space, storeroom, extensions to the apartment etc.
Payments schedule – this should be clear, and based upon an agreed indexing principle.
צעירי תל אביב, לא כולל שירות עונה שנייה, אלינור אהרון ובטי כהן. הועלה על ידי קומונת להקת צעירי תל אביב 24069 בתפוז
Changes and additions to the apartment – make sure the contract includes a clause permitting you to request that the developer carries out changes and/or additions to the apartment, and that these will be performed by the developer and at his responsibility. Ensure that every request appears in writing in an appendix to the contract, which will include prices and dates for implementation, will specify delay times in handing over the apartment on account of this change or addition, and that the request is also signed off by the developer.
Payment of taxes, fees and charges – details of payment of taxes, fees and charges that devolve on the developer. Care should be taken that taxes and all other expenses (including in the future) that devolve on either party should be detailed explicitly on the sales contract, and there should be no room for doubt as to the costs that the purchaser must pay as part of the purchase transaction.
Date of handover – this should be stated clearly and unambiguously. It is important to ensure receiving the apartment in an orderly manner, drawing up of a minute, and relating to the period for having the building checked and construction faults.
It is recommended to arrange for a construction engineer to check the apartment at time of handover or close to it.
Sanctions and appropriate compensation should be arranged in the event of late handover of the apartment.
The developer is obliged to register the purchaser’s rights in the apartment at the date fixed and to record this in the sales contract, as well as to register the apartment building at the date fixed (without any additional obligations devolving on the purchaser).
It must be ensured that the contract contains an undertaking by the developer in respect of a mortgage or bank loan that the purchaser will take out to finance part of the purchase price.
It is recommend that you verify in advance with the mortgage bank providing the mortgage or loan that it agrees to do so in the light of the terms of the transaction.
Letter of Exclusion – make sure you receive it (at the time of signing the agreement with the bank) or an undertaking to provide a letter of exclusion or a conditional letter of exclusion. Similarly, ensure that payments on account of the purchase price are transferred directly to the accompanying bank (in the event of bank finance).
Collateral and security for your money
Ensure that you receive suitable collateral and security for your money, such as registering a caveat in your name, a bank guarantee etc. Try to negotiate with the developer about the costs of issuing collateral and demand that he bears the costs.
In accordance with the provisions of the Sales Law (Apartments) (Securing the Investments of Apartment Purchasers), 5735 – 1974, the developer is prohibited from receiving more than 15% of the purchase price unless he has secured the purchaser’s investment in one of the ways lay down in law, which include registering a caveat, providing a bank guarantee etc.
In the event that the payments schedule is linked to progress in construction, in accordance with the Sales Regulations (Apartments) (Securing the investment of Apartment purchasers) (restriction on apartment price) 5735 – 1975, there are limitations on the developer, who may not receive more than the percentage of the purchase price as stated in the regulation.
Developer’s responsibility to repair faults
In accordance with the Sales Law (Apartments), 5733 – 1973 (Amended 1990), the developer’s responsibility is divided in two: the warranty period and the checking period.
The “Warranty Period” is three years that begins at the end of the checking period.
The “Checking Period” is a fixed, additional period (from one year to seven years depending upon the nature of the fault, as detailed below), which commences when the apartment is made available to the purchaser.
1. Plumbing, including heating system and gutters – two years.
2. Damp in roof, walls and shelter – three years.
3. Machines, motors and boilers – three years.
4. Peeling of coating in the halls and stairwell – three years.
5. Tiling on ground floor sinking – three years.
6. Sinking in parking spaces, walkways and paths in area of building – three years.
7. Cracks that appear in walls and ceilings – five years.
8. Significant peeling on outside surfaces – seven years.
9. Any other non-compliance that is not a fundamental non-compliance – one year.
The law defines “non-compliance” as any building fault (in the apartment and what is in it) that has been built differently than in the specification, the official standard and building regulations.
During the checking period, the developer is obliged to correct non-compliances in the apartment unless he can prove that the non-compliance was caused by an act or failing of the purchaser.
During the Warranty Period the purchaser must prove that the cause of a non-compliance is in the design, work or materials.
By law, to claim against the developer, the purchaser is entitled to rely upon it having been possible to detect the non-compliance at the time the apartment was made available and if he informed the seller within one year of that date.
If it was not possible to detect the non-compliance in a reasonable examination at the time the apartment was handed over to the purchaser, to claim from the developer the purchaser is entitled to rely upon the fact that he informed the developer within a reasonable time after having discovered the non-compliance.
If the purchaser informs the developer of a non-compliance, he must provide the developer with a suitable opportunity to rectify it, and the developer must do so within a reasonable time.
The above is offered as general information only and should not be considered legal advice and/or an alternative to a lawyer and/or the provision of an expert opinion. To obtain legal advice you should consult a lawyer specializing in real estate and property taxes.
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