Hi i need some help for my mother who has split up with what is legally my dad. she’s in a bit of trouble now and i’m afraid that if it’s left to go i am going to have a very difficult time getting her back on her feet.she has had to sell her house $60,000 under value. and now my dad has a cavoit on my mums house for money he has already recieved. so once the house is sold the morgage is paid off and the rest of the money is frozen pending a court case (by then my dad will probebly be in jail so it will get put off for 7 years).
as this is not a great deal of money ($30,000), we were arranging to drop the price of the house ($15,000) and take a cash payment of $15,000 for meterials and equiptment left on the property which isn’t touched by the cavoit and can be put on her CC, which is all well and good but my mum is already in a contract with someone to buy the property 22nd of Dec (120 day settlement) who have not been able to arrange finance and tried to have the settlement date extended. this was knocked back as my mum is just about to have the bank take her house (has no money). On the good side there is a couple wanting to buy my mum’s house(same price), they will do the above mentioned deal, and they have the money to buy the property on hand, and they will also let her live rent free until the house she is leasing is availble.after all that the problem i am having is legally back out of her contract or discoraging original buyers and is the above deal legal
Thank you
Danny,It is very hard to remove a caveat that has been lodged overa a family law matter. I think it has to go to the supreme court which will cost more in barrister fees than will be saved. My grandfather has a similar problem at the moment and he is unable to sell his house.
You had better seek legal advice asap.
Terryw
Discover Home Loans
North Sydney
[email protected]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
thanks for your reply, with the deal that i have mentioned the 15,000 passes the cavoit and then hopefully it won’t be put to court or if it does then it well get thrown out, i’m happy to leave the caviot and leave the 10 or 15,000 frozen and not go to the court case. my main prob is i need to get some money past the cavoit to pay her Credit card or it will keep going up a can do thats by dropping the price 15,000 and make it back up by selling equiptment on the farm for 15,000 (i have found investers that are intrested in that deal and will do it). so once the house is sold the money pays the morgage which leaves about 15,000(frozen by cavoit) and 15,000 cash payment for equiptment(seprete from house) – thats well and good but she has entered into a contract to sell her house with people that won’t come to the party with my 15,000 cash deal. so i need to discourage the original buyers or legally get out of the original contract. to be able to sell to another couple who will give me 15,000 cash.
questions:
Can i legally break a contract?
Can i legally discourage original buyers?
What is the fine for pulling the house off the market with out mutual agreement with the people who have entered into the contract to buy the house?
Thank you
Danny,Can i legally break a contract?
Usually you get your solicitor to give a notice to complete to the old buyers. Uusally that gives them some extra time (you can’t just pull a contract and keep their deposit because for example the bank takes an extra day after settlement to get its act together). But it usually only happens after the settlment date – perhaps another way would be to tell them the bank is going to reposes the property in X days unless they get finance. (Your solicitor should work something out).Can i legally discourage original buyers?
Wel you could give them a notice to complete, other than that tell them their is a cavet over the property. That may have other consquences though (i.e. did not disclose it before/during sale (so see your solicitor).As for your family problem, wy don’t you promise to give a % of the sale price on the home to the father, and do a deal with the new buyers so they pay more for the equip and less for the house. Tell your father the banks about to repo. anyway so he probably would get zero $ from it (a solicitor letter informing them that is also good). perhaps he will agree to lift the cavet. Also from memory Cavets only last a period of time too (check with solicitor).
As you can see you need proper legal advice.
Rgds.
Lucifer_auIf there is a caveat on the property the purchaser will not settle unless a withdrawal of caveat is handed over.
Your mother needs to get legal advice. If your father has lodged a caveat and does not have a “caveatable interest” the solicitor can lodge with the LTO (at least in nSW) under Section 74J Real Property Act an aplication by the registered proprietor to remove the caveat unless the caveator(your father) does certain things within 21 days.
Thank you all very much for your advice i’ll chase some of those options and post how it panned out. again thank you for your time.
Danny,Originally posted by crj:If there is a caveat on the property the purchaser will not settle unless a withdrawal of caveat is handed over.
Your mother needs to get legal advice. If your father has lodged a caveat and does not have a “caveatable interest” the solicitor can lodge with the LTO (at least in nSW) under Section 74J Real Property Act an aplication by the registered proprietor to remove the caveat unless the caveator(your father) does certain things within 21 days.
Unfortunately, being a family law matter is enough evidence for the LTO to leave the caveat on there. They do not conduct any investigation into the truth of the matter. It would probably have to go to court to get removed. Barristers fees are around $10,000 per day I hear!
And I think your solicitor should have picked up the caveat before you entered into a contract of sale. I am not sure what will happen if you have exchanged contracts and cannot settle.
Terryw
Discover Home Loans
North Sydney
[email protected]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
Thank yow all agian i have more wood for the fire.
i have some new information, a new angle, consumer affiars issuses and good news on caviot.
i will explain the details because it is becoming a bit of a big issue now.Specifics
Contracted buyers
gary and jenny
price – $185,000
contract specfics – 120 days settlement 25th dec(christmas) sole condition of contract was a signed uncoditional contract of sale on there house prior to settlement date2nd Buyers
Andrew and jill
price – 186,000 (165,000 -contracted, 21,000 -cash)
very nice couple want to buy house meet with mum cups of tea very frendly, have money, 2 weeks all over, rent free till rental availible in dec are very flexable with contract, very eager to buy and open to priceing negotiations.
After talking with the gary (purchaser) who turned out to be a real A-hole, and doesn’t care about anything i have to say. i really got set into this, these people are not buying my mothers house!Another angle: At the time of signing the the contact of sale my mother was diagnosed post-trumatic stress disorder, since then she has spoken with the Psychologist and he has confirmed that qoute “at that time she was in not state to be signing any contract.”
i have been told that this is the basis for having the contract torn up. My mother has instucted her solicitor(which i don’t have much faith in) who has the report. i would like to go higher with this isssue. does anyone know who contact about this?Consumer Affairs
Andrew and jill have been told they could have the property twice(real estate agent) and had it taken off them twice (while house was under orignal contract) they also had a contract drawn up and paid a full deposit and then had it returned and there contract torn up. contacted consumer affairs G. Redfern who isn’t impressed about the contract and the real estate agent who took 2 contracts and deposits and told andrew and jill they had the house. he is coming down to investigate the situation and he has the power to break the contract and if he finds the real estate to be dodgy shut them down.Goodnews
Andrew being in the police has had a look into the specifics and does not really like my father either now and will buy the house at the contracted price of 165,000 (balance of morgage) and pay 21,000 cash for equiptment, which leaves…… thats right a big fat 0 for the caviot.
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