Hi all, was due to settle on a property this Tuesday, but have just found out the vendor cannot settle until Friday becuase they have not done the paperwork to have a caveat removed, even though they have had since December last year to do it. Their conveyencer even threatened to recind from the contract if we didnt pay the remainder of the deposit money before settlement. One of the conditions of sale was that all caveats be removed prior to or on settlement date, given the oportunity to pull out we would due to various reasons I will seek legal advice tomorrow would appreciate any opinions. Also if anyone knows a good solicitor sing out i'm from melbourne.
James
With regards to the deposit, it would depend on what the contract conditions were with regard to the deposit; be very careful that you don't lose what you've already paid for breaching.
You should definitely seek urgent legal advice. There's a big difference between a requirement for title to transfer without the caveats – which is what I suspect your contract says – and removal of the caveats by date xxx being a condition of the contract. I doubt your vendor's solicitors would have allowed the contract to remain unconditional until such time as the caveats were removed.
And sorry if I'm preaching to the (now) converted, but I don't recommend anybody buy property without a solicitor, ever. Even with a solicitor it can get ugly – but it sure has a higher probability of turning ugly without one. At least a solicitor has to have professional indemnity insurance that you may be able to claim against…
Hi Trakka we have only put down $500 to date so no big loss in the contract it says "subject to removal of all caveats prior to or on settlement date" this was co-signed by the vendors and myself.
Since settlement date is a moving target, I don't think that's going to give you an out.
If it said "prior to 9th of February" then you would have an out, but I believe the vendors can delay settlement for up to a certain period (14 days?) without penalty. As long as the caveats are gone on the day that they're ultimately ready to settle, I think they're compliant. But I'm an amateur, and not a lawyer – so talk to that lawyer tomorrow morning!
Spoke to my conveyencer basically she said if i dont want to buy the property then i will lose the $500 deposit and the vendors could sue me for loses, which she said would be unlikely given the small deposit. I asked her if she could put me onto a solicitor but she said she deals with the solicitor and they just do paperwork so she has given me the number for the law institute of victoria if anyone is a solicitor or knows of someone they could recommend it would be of great help.
James, I've just realised this is probably the same property purchase that you've posted about several times before, where problems showed up after building and pest inspections, and where there was a dispute about the date that you had to complete them by.
Last I heard you were saying that there was no binding contract because you hadn't agreed to the B&P date inserted by the agent, and were offering to affirm the contract in exchange for a price reduction. Did that happen, and if so, why do you want to pull out now? I would have gotten a lawyer back then, but done's done; my QLD lawyers, Munro Thompson, recommend Andrew Lumb at Nevett Ford, ph 9615 4303 or email [email protected].
Usually vendors won't sue for termination of a contract in such circumstances, but given that you have reasonable earnings and presumably have more cash that you'd saved for a deposit, I wouldn't be totally surprised if they do sue you in this instance because they probably feel that you've mucked them around. There has been a lot of back and forth and threats of legal action, and that tends to piss vendors off…
What's going on? Buyer's remorse? Interest rates got you spooked? Indecisive?
Yeah Trakka same property basically my conveyencer sent them a letter saying reduce the price or we will rescind from the contract due to the added date and building inspection they didnt reduce the price so i got all my documents in to order ready for settlement and informed them on the 31/1/08 that we would be going ahead with the purchase which was due to settle tomorrow they have now delayed settlement until friday which has put a spanner in the works for me but what do you do??
As for the property in the long term it will be a good buy we probably could of bought better for the money but in saying that its is hard comparing previous sales with your own purchase when you dont have land size info and havent actually been in the other property's. I also have job oportunities in Brisbane which i'm seriously considering, would of been nice to go up there with no ties down here in Melb but you cant have your cake and eat it.
I spoke with a lawyer today athough we have only payed the vendors $500 we should have forwarded the remaining of the 10% within 2 weeks of signing so by rights if we do not complete the sale the vendors could try to sue us for 10% of the purchase price as we affectively should have payed 10%. Told the lawyer about the adding of the date she said she would have to have a look at the contracts @ $300 per hour you would almost want a guarentee i didnt realise how expensive lawyers where. So thats were i'm at i should probably just stop whinging and buy the property.Vendor posponed settlement from tuesday until friday becuase the transfer documents have not been stamped by their bank. Now they have posponed it again but they havent given my conveyencer a date, i have informed my conveyencer to issue them with a notice of recision which gives them 14 days from friday to settle the property or the contract becomes null and void. I find it amazing that the purchaser gets slogged daily interest for delaying but the vendors get off scott free..
James007 wrote:i have informed my conveyencer to issue them with a notice of recision which gives them 14 days from friday to settle the property or the contract becomes null and void. I find it amazing that the purchaser gets slogged daily interest for delaying but the vendors get off scott free..Good move to issue the notice; you can always change your mind if you want to, but best to protect your interests. And I agree that it is outrageous that one has no recourse for costs against a vendor who fails to settle on time.
Some years ago, we changed PPRs to accommodate our growing family (I was expecting twins). Five days before we were due to move, I had an emergency caesarean and my twin sons were born 10 weeks prematurely. Thankfully we were all remarkably healthy, but moving house was not exactly at the top of my list of priorities at that particular time, with recovering from major surgery and watching over our tiny babies. And I'd done nothing to prepare, because I'd unexpectedly gone into hospital on bed-rest a few weeks prior. Anyway, with my parents helping and me pointing and issuing instructions to hubby and movers from a comfy chair
we packed up all our stuff into a truck first thing on settlement morning. We settled the place we were selling around midday, with a 1pm settlement scheduled for our new PPR. Movers planned to go have some lunch then deliver furniture to new PPR. Guess what? We got a call about 12:30 saying that the vendors weren't ready to settle If it had been an unavoidable bank delay it still would have been annoying, but I'd understand that sometimes it's unavoidable. But it was only because the previous vendor just didn't have her "poo in a pile" and hadn't finished moving out! Given what we'd gone through to proceed with moving out of our place, I wasn't very sympathetic.So we were left homeless for a few days – just what I needed whilst recovering from major surgery. We had to pay a heap extra in moving costs because the movers had to put our stuff in storage, and we had no comeback against the vendor for any of this…. it's ridiculous.
Thats terrible Trakka at least ours is an IP, it did stuff me around as i just got back from Brisbane and was supposed to continue my holidays back in melbourne to get the reno started, but instead i've had to go back to work until it settles god knows when that'll be and then inform my employer oh by the way i'm having the next week off.
So for the uneducated amongst us, at what point can the buyer recind the contract if the vendor is not ready to settle or wishes to delay the settlement date?
TammyI think the 14 days mentioned is pretty standard – you get your lawyer to issue the recission notice saying that if they're not ready to settle within a period (like I say, I think 14 days is usual), then the deal's off. And of course you get your deposit back.
wondering if its 14 days from the original settlement date???
Not sure if it's from the original settlement date or when you issue the recission notice.
It all depends on what state you are in. Terms of rescission are written into the contract. In South Australia the purchaser has to issue a notice to remedy the breach (failure to settle) and the vendor then has 3 days AFTER RECEIPT OF THE NOTICE to settle. If the vendor can't settle within that time the purchaser can terminate the contract.
Interestingly enough, in SA the purchaser is entitled to claim default interest from the vendor if the vendor can't settle within 3 days after receipt of the notice. Alternatively the purchaser can claim the amount of money actually lost because of failure to settle. In your case Trakka, you would have been entitled to claim from the vendor all your out of pocket expenses.
However, this is only in SA. I know in other states the vendor has 14 days after the notice to settle. Also, in most other states, the purchaser can't claim default interest or other losses incurred.
Cheers
K
we packed up all our stuff into a truck first thing on settlement morning. We settled the place we were selling around midday, with a 1pm settlement scheduled for our new PPR. Movers planned to go have some lunch then deliver furniture to new PPR. Guess what? We got a call about 12:30 saying that the vendors weren't ready to settle 
If it had been an unavoidable bank delay it still would have been annoying, but I'd understand that sometimes it's unavoidable. But it was only because the previous vendor just didn't have her "poo in a pile" and hadn't finished moving out! 
Given what we'd gone through to proceed with moving out of our place, I wasn't very sympathetic.
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