We are currently in process of buying an apartment and as is usual practice these days, we paid 50k in reservation fee to the seller. The contract said that seller can keep 5k in case I decide to not go ahead with the deal. All fine, we were really looking to buy this apartment.
Now today, I found out that the apartment doesn't have underfloor heating, whereas the seller mantained throughout the communication until now that the apartment has both underfloor and readiaor heating. Stupid on my part that I didn't do a simple check if underfloor heating is there but I thought nobody would lie about such a thing.
Now I am planning to revise my offer down due to this new info. I don't know if the seller would accept the offer or not- in case not, I am of the opinion that the full reservation fee should be refunded because there was a material misinformation provided about the object.
Indeed the underfloor heating was mentioned on the sales documentation. There is an agent involved - however, its a company which is acting more as a service provider to represent the seller (so not an agent in the sense of taking a commission of sales price). I have been dealing mainly with the agent for all documentation/ communication.
I found out quite randomly today when I was making a visit with an architect- there were no regulator knobs and then I checked the radiators which were hot - i was told that the radiators are there but are never used because underfloor heating sufficiently warms the apartment
I have to mention though that this reservation contract was not via a notary but essentially drafted by the agent.
If I understand correctly, you still wish to purchase the property, but at a reasonably reduced price to reflect the difference in value between the heating systems. I think you have a genuine case for a reduction in price without a penalty, but I think that you will need legal representation to assist you with this. Do you have legal insurance? If so, this is the time to use it. Legal advice can help you balance out your seemingly contradictory goals of irritating the current owners with a price reduction, not having any consequences for the deposit and still trying to continue with the sale.
Since the reservation was not done through a notary you can withdraw at any time.
Regarding a possible penalty "aka the 10%"
"If you withdraw from the contract, the seller may withhold part of the down payment. Often brokers - and occasionally also direct sellers - require a sum of money to be paid in the reservation agreement in the event that the sale ultimately does not take place. Numerous court rulings speak against this approach."
So in reality
Sellers or brokers may only invoice their direct and documented expenses. These include reported expenses - such as notary fees for the draft purchase contract, new advertising costs or changes to the construction plan requested by the buyer."
Should the seller not agree to a suitable reduction of the sales price, I would demand the reservation already paid to be returned in its entirety since (like NotAllThere wrote) the property was misrepresented.
Buying an apartment can be very complicated. There are many things you want to ask before paying a single rappen. The are building rules. Did you ask to see these?
Agents represent the sellers, not the buyers. It is definitely buyer beware here. Sales documentation can be full of mistakes and isn't binding. Agents can lie and get away with it.
I don't understand how you thought there might be underfloor heating if you can see radiators. If a building was renovated and underfloor heating installed at a later date they would have removed the rads. If you want to renovate, in all likelihood you have to run this by all the other owners. Floors with underfloor heating are warm. You can feel this with your hand or standing in socks. (or barefoot).
If the building has oil heating this raises questions, such as how old is the oil burner? Did you even ask if there is a central heating system and what type it is?
Unless it's been notarized, that contract is legally void - all contracts and pre-contracts like such reservations that involve buying real estate have to be notarized for them to become legally binding. Of course, hardly anyone bothers to go to a notary for reservation, seller take your money just so and it hangs on their honest word that they will end up selling to you.
It doesn't really matter much what your piece of paper says regarding refunds. You can claim back *everything* minus actual damages they are able to prove (cost to readvertise, notary bills etc) from the seller. The legal basis for this is Art. 62 OR "unjustified enrichment". Damages is a counterclaim you owe regardless of whether you have contract or not, but they have to be able to prove them, don't take their word for it.
The only exception is if you provably knew in advance that the pre-contract was legally void and you still signed it and transfered the money, then they might get to keep everything
Are you sure about this? We started from scratch with our 1972 Terrassenwohnung. Stripped back to bare walls and concrete floors for rewiring, underfloor heating, windows, doors, shutters, kitchen/utility etc and the only things we needed to ask the co-owners about was a Wintergarten (that was ultimately rejected by the Gemeinde) adding a door to the back garden and adding a new window to the front (which one person voted against, so was rejected.)
OP for reference, the underfloor heating to cover approx. 140m2 of underfloor heating cost CHF 40,000-50,000 (I can't remember which variant we went for in the end). On top of that you need to pay to rip up the flooring and then lay new flooring.
Thanks for the data eyebeebe - the quote I'm getting for 185sqm for ripping off existing Parkett, installing underfloor heating and a new parkett is more in the range of 130-150k. However, the architects are not even sure if underfloor heating can be installed as the water temp in radiators might be too high (35-40C) (oil heating in the building) to install underfloor heating.
Indeed buying an apartment is more complicated than I thought!! Building is 50y old (1972) but "erneurungsfund" is decent (150k). They replaced the oil burner 5y ago but indeed the whole heating system needs to be replaced by more greener option before 2030.
What do you mean by that I already knew that the pre-contract was legally void?
150K in the fund won't go that far if the building needs other work. Do you know what a new heating system in 8 years from now will cost? Do you know how much is contributed to the fund each year?
As for renovating and notifying your neighbours, in some cases the building rules stipulate you must do this. Even if it is not in the rules, it seems like the right thing to do considering how much noise you might make. Whether you need a permit for any of the work will vary by commune.
That sounds extraordinarily high. I'd be getting a second opinion on that! Obviously depends on the sale price, but I can't see the seller discounting that much. Trade price for decent Parkett shouldn't be much over CHF 100m2. Ripping out and fitting new might cost the same again (I'd be tempted to use a German contractor for this - it's not particularly specialist work and doesn't need any kind of sign off like electrics do). So that's leaving the heating at 100k. Feels like your architect isn't necessarily working hard for you. We had a Bauleiter/Bauherr rather than an architect and he pushed every contractor for discounts, their best price etc. Told me where I was being unreasonable or justified if I complained about a bill being higher than the quote or something not being done to my expectations.
Regarding the temperature, we also have an oil burner and previously had radiators. Temperature is now running at 30 degrees. I seem to remember we had to turn it up a bit as the apartment was too cold.
Agree that 150k won't go far, but would also depend on the size of the building. Apparently it's the going rate to install underfloor heating in one apartment
Of course we notified our neighbours that we were renovating. That's good manners, but they have no right to object. I genuinely can't believe though that you need a permit for changing anything within your four walls unless there is something damaging e.g. asbestos clearance.
Contempt of law, you don't deserve the protection of the legal system if you knowingly engage in legally void contracts. That's how you'd lose your whole deposit.
If you didn't know (or rather, seller can't prove that you knew), that's ok - it's as if you wired money to a wrong bank account for no reason or by mistake. You can claim it back thru court. Assuming of course the recipient would still be solvent heh - far from 100% certainty in construction