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No Objection to Planning Clauses in New House Contract

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  • 19-10-2020 1:54pm
    #1
    Del2005
    Registered Users Posts: 18,872 ✭✭✭✭


    throwaway321 wrote: »
    This is for a new contract that has not been signed yet. I'm looking for people's experience in negotiating things like:
    * adding a subject to finance clause
    * eliminating or limiting the scope of clauses that prohibit you from objecting to future planning applications by the developer
    * adding the white goods to the contract

    Is that even enforceable? Someone buys a house and signs said contract, developer submits planning and the person objects.

    What can the developer do? They can't kick the person out of there house and don't forget the most important part, a person can't sign away their rights in a contract and everyone has the right to a planning application.


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    #2
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    Del2005 wrote: »
    What can the developer do?

    Interesting question.

    My guess, sue for damages. I wonder if such a covenant has ever been tested in court.


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    #3
    Del2005
    Registered Users Posts: 18,872 ✭✭✭✭Del2005


    Graham wrote: »
    Interesting question.

    My guess, sue for damages. I wonder if such a covenant has ever been tested in court.

    The contact is illegal as someone is being asked to sign away their right to object to a planning application. I'm not a gambler but I'd put good money on no developer ever taking someone to court to enforce the clause because it'll be thrown out and then they can't try to bully other home buyers into signing it.


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    #4
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    Del2005 wrote: »
    The contact is illegal as someone is being asked to sign away their right to object to a planning application.

    Are you guessing or do you have an authoritative source for that?


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    #5
    Del2005
    Registered Users Posts: 18,872 ✭✭✭✭Del2005


    Graham wrote: »
    Are you guessing or do you have an authoritative source for that?

    It's been posted on this site several times. If in doubt ask in the legal forum.


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    #6
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    Mod Note

    Del2005 there's an expectation here that if you make a claim that you can back it up. Would you mind sharing a link.

    FYI I have checked LD, this is the only discussion I can find and it doesn't support your assertion. That's not an accusation btw, you might have better luck.

    https://www.boards.ie/vbulletin/showthread.php?t=2057491309


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    #7
    Del2005
    Registered Users Posts: 18,872 ✭✭✭✭Del2005


    Graham wrote: »
    Mod Note

    Del2005 there's an expectation here that if you make a claim that you can back it up. Would you mind sharing a link.

    FYI I have checked LD, this is the only discussion I can find and it doesn't support your assertion. That's not an accusation btw, you might have better luck.

    https://www.boards.ie/vbulletin/showthread.php?t=2057491309

    Sorry about that.

    Point 17 from the site below

    "Terms which restrict how and where consumers can take legal action"


    https://www.google.com/amp/s/europa.eu/youreurope/citizens/consumers/unfair-treatment/unfair-contract-terms/indexamp_en.htm

    "The Regulations require standard contract terms to be fair. The contract is not allowed to create an imbalance between your rights and obligations as a consumer and the rights and obligations of sellers and suppliers. A term is unfair if it puts the consumer at an unfair disadvantage or is harmful to the consumer’s interests."


    https://www.citizensinformation.ie/en/consumer/consumer_laws/unfair_contract_terms.html


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    #8
    Dav010
    Registered Users Posts: 14,003 ✭✭✭✭Dav010


    Del2005 wrote: »
    Sorry about that.

    Point 17 from the site below

    "Terms which restrict how and where consumers can take legal action"


    https://www.google.com/amp/s/europa.eu/youreurope/citizens/consumers/unfair-treatment/unfair-contract-terms/indexamp_en.htm

    "The Regulations require standard contract terms to be fair. The contract is not allowed to create an imbalance between your rights and obligations as a consumer and the rights and obligations of sellers and suppliers. A term is unfair if it puts the consumer at an unfair disadvantage or is harmful to the consumer’s interests."


    https://www.citizensinformation.ie/en/consumer/consumer_laws/unfair_contract_terms.html

    House sales are not covered by consumer law though.


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    #9
    Del2005
    Registered Users Posts: 18,872 ✭✭✭✭Del2005


    Dav010 wrote: »
    House sales are not covered by consumer law though.

    Proof please


  • Options
    #10
    Claw Hammer
    Registered Users Posts: 6,160 ✭✭✭Claw Hammer


    Del2005 wrote: »
    Proof please

    http://fitzsimonsredmond.ie/buying-a-newly-built-home-the-positives-the-pitfalls/
    UNFAIR CONTRACT TERMS

    "In a High Court Action by the Director of Consumer Affairs in 2001, terms similar to many of those inserted as additional or special conditions in Building Agreements/Contracts for Sale in respect of the sale of newly built houses or apartments were found to be unlawful under Regulation 8(1) of the European Communities (Unfair Terms In Consumer Contracts) Regulations 1995. The Regulations protect persons who deal as consumers (i.e. not in the course of business) in respect of any terms that are not negotiated. The Order made by the High Court sets out 15 types of condition that offend the Regulation. Notwithstanding the High Court Order some developers are still inserting these types of conditions in Building Agreements/Conditions of Sale. The High Court Order means that many of such offending conditions would not be enforceable if it came to it."


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    #11
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    Mod Note

    thread split.


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    #12
    Del2005
    Registered Users Posts: 18,872 ✭✭✭✭Del2005


    Claw Hammer wrote: »
    http://fitzsimonsredmond.ie/buying-a-newly-built-home-the-positives-the-pitfalls/
    UNFAIR CONTRACT TERMS

    "In a High Court Action by the Director of Consumer Affairs in 2001, terms similar to many of those inserted as additional or special conditions in Building Agreements/Contracts for Sale in respect of the sale of newly built houses or apartments were found to be unlawful under Regulation 8(1) of the European Communities (Unfair Terms In Consumer Contracts) Regulations 1995. The Regulations protect persons who deal as consumers (i.e. not in the course of business) in respect of any terms that are not negotiated. The Order made by the High Court sets out 15 types of condition that offend the Regulation. Notwithstanding the High Court Order some developers are still inserting these types of conditions in Building Agreements/Conditions of Sale. The High Court Order means that many of such offending conditions would not be enforceable if it came to it."

    I read that as saying consumer law does apply to home sales. I was looking for the proof that says it doesn't as Dav10 claims


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    #13
    AndrewJRenko
    Registered Users Posts: 28,372 ✭✭✭✭AndrewJRenko


    Del2005 wrote: »
    Is that even enforceable? Someone buys a house and signs said contract, developer submits planning and the person objects.

    What can the developer do? They can't kick the person out of there house and don't forget the most important part, a person can't sign away their rights in a contract and everyone has the right to a planning application.

    First option for the OP would be to ask their solicitor.


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    #14
    throwaway321
    Registered Users Posts: 3 ✭throwaway321


    AndrewJRenko wrote: »
    First option for the OP would be to ask their solicitor.

    My solicitor hasn't proven too valuable and has essentially taken the stance that new build contracts are not negotiable.

    Based on feedback in this thread I have been able to find a PDF that lists all 15 clauses that have been deemed unfair. I can't post links, so search for "Unfair terms in building contracts site:lawsociety.ie". The clause around objecting to planning applications was not one of the 15, so I'm unsure how the current laws apply.


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    #15
    Dolbhad
    Registered Users Posts: 782 ✭✭✭Dolbhad


    throwaway321 wrote: »
    My solicitor hasn't proven too valuable and has essentially taken the stance that new build contracts are not negotiable.

    Based on feedback in this thread I have been able to find a PDF that lists all 15 clauses that have been deemed unfair. I can't post links, so search for "Unfair terms in building contracts site:lawsociety.ie". The clause around objecting to planning applications was not one of the 15, so I'm unsure how the current laws apply.

    Your solicitor is right. Builders do put unfair terms into contracts all the time and their approach is take it or leave it, that they can find a buyer who will buy the house with those terms.

    Not if it’s one of this clauses that should be deemed unfair, you won’t be able to get it omitted from the contract but if you were ever in court for a dispute with it the builder, you may be able to argue as an unfair term it should not be enforced. But if your in court with a builder, you have bigger problems than the contract.


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    #16
    CIARAN_BOYLE
    Moderators, Sports Moderators Posts: 14,599 Mod ✭✭✭✭CIARAN_BOYLE


    I've always had the view that consumer legislation and protections therein was to protect the weaker party from unknowingly being taken advantage of by a stronger party.

    It's much harder for the buyer in a household transaction to claim they are being taken advantage of as they have legal advice.


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    #17
    JustAThought
    Registered Users Posts: 5,323 ✭✭✭JustAThought


    CIARAN_BOYLE wrote: »
    I've always had the view that consumer legislation and protections therein was to protect the weaker party from unknowingly being taken advantage of by a stronger party.

    It's much harder for the buyer in a household transaction to claim they are being taken advantage of as they have legal advice.

    Who has deeper pockets - powerhouse builders or individuals?

    Who can write their legal costs against their business tax - builders.

    Who has access to specialised legal advice not just joe blogs conveyencers & village solicitors - builders.

    etc

    Having said that who wants a house with a light blocking kip built longside it or slum row of boxy eyesores - not only will you have to cough up for high court fight but you will be in negative equity if they are sk bad the builder has to insert a no orotest clause. I’ve been forced to sign some horrendous employment law and human rights offending clauses through work and when I had space to get to get legal advice it was always the same - you should not have signed - now they have a contract with your name on it saying you knew and agreed.

    The thing would be to get a relative or friend to object for you - anyone can object - even on the grounds of looking to buy that house in the future through a private sale or inheriting.

    Also - if you are in that position it would be very interesting to make a formal complaint about abuse of market power to the Competition Authority. They have the resources and brief to fight such exploitation - particularly as it skews the balance of competition in favour of dominant market powers. Would quite make my day of it passe my desk. (not that I work there).


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