Hi there,
We purchased a property where we requested to put a 5% deposit in two installments, one week apart.
The second cheque was given to the realestate agent who was handling the exchange. The office forgot to bank the cheque and the dealer principle called the vendors solicitor to see if he had the 2nd payment.The vendors solicito issued a Notice of Termination of the contract and are claiming damages and losses resulting from the default however, the we (the purchasers) still wants to purchase the property and the mistake was on behalf of the realestate agent handling the sale. The full 5% deposit was made.
What are my legal rights both from proceeding with purchasing the property and in the vendor wanting the deposit as compensation?
Any advise would really be appreciated.
thanks
Firstly, which state? as the law does vary in each state.
In NSW, the agent MUST bank any monies received by the end of the next banking day. The agent must also issue you a trust account receipt for the money.
So, do you have a receipt as proof of paying the balance of the deposit? This will support your argument.
You will need to consult your solicitor and if there are grounds, to lodge a formal complaint with fair trading/cat.
I am in NSW.
I have a receipt of proof of paying the balance of the deposit.
The realestate agent has put his hand up and is taking the blame.
The problem though is that vendor doesnt want to go ahead with the sale and sue me for loss.
What loss will the vendor suffer when I still want to buy the house????
The realestate is not my problem.
Its the vendor and his solicitor that insist that he is suffering from loss and insist on terminating the contract. I (the purchaser) dont want the contract to be terminated. The principle of the matter is he has the full 5% deposit and I "WANT" the house.
PS this house has been on the market for 6 months with not 1 interested buyer.sorry, one more thing. Shouldnt the vendors solicitor have issued a final demand for the balance of the 5%? of the deposit before terminating the contract?
shoppingarigas wrote:sorry, one more thing. Shouldnt the vendors solicitor have issued a final demand for the balance of the 5%? of the deposit before terminating the contract?From my understanding in NSW absolutely – based on what I have seen. Sounds suss – but if your agent HAD banked the cheque, it would be all good…..you need to discuss this with your solicitor.
All the bestI smell a rat here. You've paid the deposit and can legally prove you met your obligations for consideration under the real estate sales contract; the real estate agent has admitted fault; you still wish to proceed but the vendor now, through a solicitor, is claiming damages and loss! Hmmmmnnn. If I were to put all that together and predicate an answer based upon total supposition these would be my assumptions: the vendor got a better offer and wants you cut out so threatens you through the bluff of a Solicitor; the real estate agent still gets his commission (which will be higher than your sale) and you are the one who has a possible tort or damages claim against the real estate agent (who's probably not perturbed because he/she probably has professional indemnity insurance) and the vendor. Complete and total supposition and assumption I know but there is definitely some serious smoke here. May I humbly suggest you look up a local solicitor who'll give you one of those 1st interview free appointments and quickly run the details past them – you may just find a great, big crown bushfire amongst all that <moderator: delete language> smoke!
Let me make this absolutely clear. From what you have said there is NO way the Vendor has a right to claim a loss against you for alleged breach of contract. The Vendors ONLY claim would be against the Real Estate Agent. The Vendor, through a legal mouthpiece, wanting to claim YOUR deposit as compensation is TOTAL & UTTER GARBAGE!
Please, speak to a Solicitor as, upon further reflection, this is smelling very 'scamming' to me.
thank you so so so so much Anthony. I really appreciate it you dont know what this means.
All I want to do, is buy this house. Nothing more, nothing less.Thats what I couldnt understand, what loss I have caused him, considering I want to proceed with the purchase.
Ill speak with a solicitor tomorrow and post some details tomorrow
Thanks again
AlexI too think this strange. What loss has the vendor suffered?
Also, the real estate agent is the vendor's agent. ie they are authorised to act for the vendor. So you paying the cheque to the agent is the same as paying the vendor.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
PS James.
Any hassles, feel free to drop me an email below.
And thanks. It's always great to know just a small amount of perspoective has put you more at ease.
All the best with the lawyerI've just looked at a NSW contract.
cl 2.1 of the standard contract of sale stipulates the purchase must pay the deposit to the depositholder. 'Depositholder' is defined as the agent.
cl 2.4 also states the deposit can be paid to the agent.
cl 2.5 however states that if the deposit is not paid on time the vendor can terminate the contract, but this right to terminate is lost once the deposit is paid.So, my interpretation of this is, if you had paid your deposit to the agent before the vendor issued the termination notice then you should be fine. Confirm this with you solicitor.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I’d still be going through oft & getting the agent’s balls on toast. Nothing hurts the agent more than bad press & a fine.
You may even be able to claim on the agents compensation fund.
Seek legal advice regarding lodging a caveat over the property as well, that will screw up any prospective deal.
Gotta love the way your mind thinks from the "Darkside" sometimes Scott – thank goodness for Terry's opinion just to put a little balance back in from the "Force".
Terry, the deposit holder can be either the agent or vendor’s solicitor but must be nominated & is usually the agent.
Scott,
Clause 1 of the contract defines depositholder as:
"vendor's agent (or if no agent is named in the contract, the vendor's solicitor)"Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Failing that contact "Today, Tonight" or "A Current Affair". One phone call to the tele stations will get that done. Go to the real estate office armed with cameras and microphones.
.Opps, hold on, don't do that. That's too cheeky.
Take care and follow correct advice and procedures as previously given.
Angel
Hi all,
This is one example why we should all use the services of a solicitor (as opposed to conveyancer – sorry guys if there's a few here). My long-time solicitor will not take this, he'd go to bat for me in an instant.
Good luck and I hope this gets resolved for you ASAP.
Angel
angelinsydney wrote:Hi all,This is one example why we should all use the services of a solicitor (as opposed to conveyancer – sorry guys if there's a few here). My long-time solicitor will not take this sort of c__p, he'd go to bat for me in an instant.
Good luck and I hope this gets resolved for you ASAP.
Angel
I would have to agree with Angel.
You never now when you will need some legal advice too.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
The exchange was done by the realestate agent and not the "conveyancer". Although this has all been resolved now-late yesterday afternoon- it was my "conveyancer" who is hard nosed and is like a dog with a bone, and who didnt back down until they withdrew their termination, that I can safely say that the sale of the property is still going ahead.
I have always used conveyancers to exchange and have never encountered any problems.I would not recomment using a realestate to exchange. They just dont have the same experience as a conveyancer/solicitor.
PS. I lodged a caveat on the property as advised by Scott no mates, thanks for your advise, it worked, and advised that I would counter sue for losses as I placed my house on the market well after I exchanged so I could buy this property.
What I find strange is that through no fault of my own, I was the one that was being sued???????
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