First Home Owner Grant - Fraud Warning

Published 17 October 08 10:25 AM | Peter Mericka 

OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Since 14 October, 2008 we have received numerous telephone enquiries from purchasers of residential real estate who want to change the date of their purchase contract in order to become eligible for the increased First Home Owner Grant. Consumers are warned that the changing of dates on a contract could constitute a serious criminal offence.

What happens if a person, having purchased their new home a week ago, only just misses out on the increase in the First Home Owner Grant for purchases made on or after 14 October, 2008, and before 30 June, 2009?

And what if a person who was intending to have purchased before 30 June, 2009 finds that negotiations take longer than expected, and the contract is not actually executed until 3 July, 2009?

Easy! Just change the date on the contract, it'll be the easiest $7,000 or so that you'll ever make. It may also be the easiest way to be charged with a serious criminal offence.

Take a look at the First Home Owner Grant application form - it can be found at RealEstateDocuments.com.au - and note the warning on the front page:

"It is an offence to make a false or misleading statement, and heavy penalties may be imposed"

More about "First Home Owner Grant - Fraud Warning"...

 

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Filed under: fhog, first home owner grant, sro, state revenue office, first home bonus

Comments

# AlmostACriminal said on October 22, 2008 4:37 PM:

two dreadful discoveries is such a short space of time, first the estate agent tells me to change the date on the contract because she took so damn long to get the vendor to accept my offer and i was missing out on the home grant and now i find out that changing the date is a crime, at least i found out now because my conveyancer was agreeing to changing the date and when i made them check up they said don't because it was true and would be a crime so thanks for the warning.

# Peter Mericka said on October 22, 2008 5:09 PM:

Hi AlmostACriminal,

A point worth checking on with your conveyancer is the possibility that your offer was accepted BEFORE the date appearing on the contract.

What is important is the date of the contract, not the date the vendor signed the contract.

For example, a purchaser may submit an offer on the Saturday, and the estate agent may telephone the purchaser on the Saturday night to say that the offer is accepted, and the vendor will sign the contract when the vendor returns home after the weekend.

Even though the vendor does not sign the contract document until the Monday, the day of sale would still be the Saturday.

# JustinT said on October 22, 2008 5:51 PM:

I thought the day of sale is when the vendor accepts the offer and signs the the contract because the REIV contract says 'this offer is accepted by the vendor on gthe date the vendor signs, unless the offer has lapsed before that date'

# Peter Mericka said on October 22, 2008 8:34 PM:

Hi JustinT,

The REIV contract is a rubbish document and should NOT be used.  I refer you to the RealEstateDocuments.com.au version instead (available at www.RealEstateDocuments.com.au).

Having said this, the standard Contract of Sale of Real Estate has the following statement beneath the parties' signatures:

"The DAY OF SALE is the date by which both parties have signed this contract."

As this statement appears in the contract, it forms part of the agreement between the parties.  That is to say, the parties have agreed that the day of sale shall be the date on which both parties have signed.

However, while the parties may agree to this, and make it so by agreement, the sale may still have taken place before the vendor has signed.

Provided there is an offer and acceptance, and the vendor's acceptance of the purchaser's offer has been communicated to the purchaser (even if this is by way of a telephone call from the estate agent on the vendor's behalf) a contract between the parties exists as at the time acceptance is communicated.

Any purchasers who have found themselves in this position must obtain legal advice to see if their circumstances allow them to rely on an early acceptance as described above.

Remember, the rule of thumb is that if there is some form of "trick" there is likely to be a crime.  However, if it can be legitimately argued that a contract came into existence at a prior time then changing the date on the contract would be acceptable.

# Rodney said on October 23, 2008 4:46 PM:

Your article implies that existing contracts (signed pre the FHOG increase) can be replaced with a current contract to access the increased FHOG.  The Queesland government has recently added an article on its website which basically contradicts what your article advises.

I purchased a block of land a few months ago and signed a contract with a builder in August to construct a house.  No work has begun on the project.  I would like to now cancel my contract and have a new contract issued if that will allow me access to the increased FHOG.  My builder is willing to reissue my contract as is, or accept any variations to the contract I might want to add to the new contract.

Please advise if I have a case to access the new FHOG amount.

# Peter Mericka said on October 23, 2008 5:08 PM:

Hi Rodney,

Thank you for your comment.  I think my explanation may have been a little too subtle.  However, note my advice at the end of the article:

"Before doing anything unusual to become eligible for the First Home Owner Grant a purchaser must obtain written legal advice from a qualified legal practitioner."

It is quite common for a contract to be cancelled and a fresh contract entered into.  For example, ending the contract due to inability to secure finance but then re-purchasing on the basis of becoming eligible for finance because of the increased FHOG would be a legitimate reason.

So long as the cancellation is legitimate the cancellation of a contract and re-purchase would be OK.

Cancelling the contract in order to avoid a commencement date for a grant, or a deadline for grant applications, is similar to tax avoidance.  If you were to explain to the SRO examiner that you cancelled the contract in order to secure the grant, you application would undoubtedly be denied.

Of course, if you were tell a lie, the element of trick is clearly established.

I will make this clearer in the article by adding the warning issued by the Queensland Office of State Revenue.

# Chris said on October 27, 2008 12:03 AM:

Hi Peter,

Excellent article as usual!

Changing the date of contract seems to be a harmless thing  - and you're right, people should be warned. I am going to spread the word, my next post will be about the meaning and possible consequences of this change in contract date, and of course I will quote you as the source.

# Chris said on October 28, 2008 12:00 AM:

Hi again, Peter, here's the article where I warn the readers of Home I Own about the dangers of changing dates on their contract (I hope it's OK to post here a link, if it's not - just moderate it) http://www.homeiown.com/is-changing-my-contract-to-get-fhog-increase-a-crime/

# Richard said on October 30, 2008 6:42 PM:

Hi Peter, I have a contract which will be void if settlement is not completed by the 11th of november. I have been waiting much longer than expected but am considering entering into a new contract with a clause stating that the property must be completed within 3 months or this one will also be void. I have advised my finance of this and they have said that i would not be entitled to the increased grant because although i would be entering into a new contract, it is for the same property. Can you tell me if this is correct?

Kind Regards

# Peter Mericka said on October 30, 2008 7:53 PM:

Hi Richard,

Who knows whether or not this is correct.  Perhaps the SRO, for which your lender is probably an agent for FHOG purposes, has made a policy decision which will not favour you in the circumstances.

I would suspect that any purchase that could appear to have been manipulated or contrived may be regarded as ineligible.

# Benjie said on October 31, 2008 1:32 PM:

Hi Peter, we signed a contract (to construct a new home) last Sept 26, 2008 but our bank was very, very slow in processing our loan that the contract has already expired last Oct 21, 2008.   Hence our builder issued a new tender because there was a price increase so they have to issue a new contract as well.  I was told by our builder that because the previous contract was void this is considered as a new contract and both Tender and Contract reflects the new date (Oct 29, 2008 ).

Do we qualify for the FHOG Boost?

Thanks,

Benjie

# Peter Mericka said on October 31, 2008 2:12 PM:

Hi Dino,

Your comment has been moderated as you have not identified yourself, and you have not indicated that you are qualified to offer the advice and comments you wish to publish.  Please contact me by email at peter@reic.com.au or by telephone on (03) 9726 2702 to discuss.

# Peter Mericka said on October 31, 2008 2:18 PM:

Hi Benje,

If you don't apply you certainly will not get it.  If you apply and your application is refused be sure to obtain written reasons and and obtain legal advice on whether the refusal is justified in your particular circumstances.

# Tim O'Dwyer said on October 31, 2008 2:20 PM:

THIS WARNING COMES FROM QUEENSLAND'S OFFICE OF STATE REVENUE (and would be relevant throughout Australia):

"This Warning to first home buyers who may be contemplating replacing existing contracts to purchase or build a home in order to access the Commonwealth First Home Owner Boost.

The Queensland Office of State Revenue will be carefully examining all First Home Owner Grant applications in which the existing date of the contract has been altered or where the contract has been cancelled since the announcement of the Commonwealth boost scheme.

Under the Commonwealth scheme, the boost will be available for eligible applications relating to contracts entered into between 14 October 2008 and 30 June 2009. For owner builders, the boost will be available to owner builders who commence laying the foundation of their home between 14 October 2008 and 30 June 2009. Prescribed building periods will apply to new homes and newly constructed homes.

Eligible applications relating to contracts signed and dated prior to 14 October 2008 will be entitled only to the standard rate of the grant ($7,000), as they do not involve contracts entered into between 14 October 2008 and 30 June 2009.

An anti-avoidance provision will be implemented as part of the new scheme in respect of contracts dated prior to 14 October 2008 that have been cancelled."

# Peter Rose said on November 20, 2008 10:41 AM:

Hello

I bought a block of land but never got around to using it. I had expected to claim the FHOG once I began construction on the block. Does anyone know if I would still be eligible for the FHOG if I sold the block of land and purchased a home instead i.e. does selling the land make me ineligible for the FHOG?

Thanks for your advice.

Peter