Gday people , I’m new as you can see so I hope you don’t mind me firing this at you day one but I have a sold property problem.
I sold a property 31/2 mths ago and it went into the solicitors a wk or so after all was agreed .
It was suppose to be on a roughly but may take longer 30 day settle . The reason it was sort of open is that there was a slight title issue which I can’t go into in full .
But , it’s 3 mths now and it still hasn’t settled . The hold ups are costing us money we don’t have for every mth longer it takes and ,,,, we’ve also done a deal on a new property purchase but that’s all waiting and depending on the finalization of this sale first so I’m also running the risk of losing this new purchase , which I really want .The problems . First up , it turns out the damn solicitor did not even get an initial deposit to seal the deal . I didn’t know anything about this , he told me at the 6 wks , all the funds were there and he was just waiting on the title problem so I assumed naturally that also meant he had a deposit ,requested in the original contract of sale we’d all signed wks before .
Meanwhile , the buyers thought he had everything signed and sorted , so his then taken off on a trip he’d postponed while arranging his purchase.
It turns out he hasn’t signed everything in full ,the title stuff is now sorted but they need one more signature by the buyer but no one can get hold of him .
My solicitor didn’t get the initial deposit , the thing has dragged on over three mths , He doesn’t seem to have given the buyers solicitor clear enough instructions and so buyers left on his trip. Which at the time even I knew we still needed the last signature but buyers end seems to have not known this from what I can gather.
My solicitors just made a total botch up of it all yet here I am in my position and still not being able to ‘ move forward ‘ thought I throw that in and I still nothing solid to go on or tie in the deal . I have my new purchase pending, the extra costs we have while waiting , no deposit to keep or hold over the buyer , I haven’t got a clue and, I’ll also probably lose my new dealSolicitor said I have the right to pull out if I want as buyer has taken off , GREAT ! I feel like suing the damn solicitor but those hassles are the last thing I need right now , I just want my damn sale to get through and all will be back on track.
Who is to blame in all of this , how do I handle it and salvage the sale ?
Thanks in advance
CheersUnfortunately I doubt you will be able to blame your solicitor, for one he may be crap but I doubt has broken any law or duty to you which would open him to being sued. Secondly solicitors don't like to sue each other very often (unless they are the one suing not on behalf of a client) as they like to protect their own, it keeps themselves safe for when they stuff up one day and need the "boys club" protection. Also it is not his fault you buyer has shot off on a holiday.
Your options would be to resell to someone else (and risk losing your new property) or continue with the sale if you have a date when this guy gets back. Unfortunately if you didn't make a definitive date that settlement must occur by then you can't really do much, as the buyer can sit there and wait for you to pull out.
You won't like this last part, but legally YOU are to blame
as you chose the solicitor and you agreed to the contract end date. Hopefully this guy gets back from his holiday soon and does the right thing, in future make sure the contract has a date to finalise by as he would then pay substantial interest for every day he is late. (my in-laws recently sold their place with a fudged date, due to the buys needing to sell other property first, however the date was still 30-90 days, so the buyers had to finalise by the 90 day mark)Personally I find people like your solicitor hate to be bugged, so ring him daily – 2 or 3 times a day, to bug him about what is going on, if you are constantly on him, he will chase it up to get you off his back, this is your money and your property we are talking about, and he is working for you. Make sure he gets a date for when your buyer will get home.
GL with it and hope it works out for you.
Thanks very much for the help Aussieguy.
Just a couple of things , firstly there was an actual settlement date on the signed contract of sale but that date is now 6 wks past. We were just warned that it may take a week or two longer past that date but it’s 6 wks past now and plus the buyers away.
Hopefully his solicitor will be able to contact him , we find out next week after me getting on the phone last week to mine and pushing the hell out of it all yet again. My solicitors just been sitting on his butt and hasn’t even chased it up for 4 weeks since. It’s crazy .Now on what your saying , of course I don’t want to go through he night mare of suing a solicitor anyway , I just feel like it but, surely the solicitors job is to advise me on everything including the security of and getting the deposit ?
Whether I’m the total laymen or seasoned investor isn’t taking care of my interests over the whole transaction ,following it all up and covering my backside , what we pay them for ? His left me completely open and at the mercy of this whole thing ?And , actually thinking about the deposit , 10% due on signing was actually also in the contract and I know the buyer would have had no problem with paying that , he was all systems go . The damn solicitor just hasn’t bothered collecting it but, the whole funds in total actually have been sitting in the buyers solicitors account , ready and waiting since day one .
Hmm , now I’m confused !!!!!!!! sorry .
Cheers
Wannado,
If you exchanged on the contract, and the buyer signed as well, then any penalties outlined in the contract will fall due by them (and that's regardless of whether or nor you're holding the deposit).
I suggest that you get on the phone to your solicitor (or better still, send through in writing) and request an update on the sale and how/when you'll get the deposit, and what penalties will be applied. You can also engage your real estate agent (assuming you have one) to chase up the buyers solicitors and the buyer to clear the picture up for you a bit.
Good luck with it all!
For you to be able to sue your solicitor you will have to prove that you suffered loss (financial or otherwise) because of his negligence. What loss have you suffered? How would things have been different if the purchasers had paid the deposit? You can't access a deposit prior to settlement (unless expressly stated in the contract) so it looks to me like the solicitor may have been a bit slack in not getting the deposit, but no real harm has come of it.
The other thing that needs to be considered is when the deposit was payable. Was it payable when the contracts were signed or when it was all unconditional (including the title issue, finances, inspections etc). If it was when the contract was unconditional then based on what you have said above, the title issue hasn't been finalised and the deposit is not yet payable.
As to your options, it depends on what stage the contract is at, If it is unconditional, then technically the purchaser is in breach because the settlement is overdue, You could either take steps to terminate the contract or you could keep the contract on foot and charge penalty interest.
Can you send the documents to wherever the purchasers are to try to expedite settlement? Sometimes it's worth spending a bit of your own money (on courier costs) to get the settlement through.
I'm sorry to say this, but ultimately you are to blame. As I previously said, the failure to pay a deposit (if it was supposed to have been paid) hasn't really affected how the sale has proceeded. Sometimes things take longer than you think they should. When you decided to purchase the new property, you should have had written into the contract that the purchase was subject to the sale of your property. It's a valuable lesson.
As to how to move forward, I think you should stop looking to blame someone and just do whatevery you can to finalise the sale of both properties. Be proactive in getting that last signature. Take a deep breath and a chill pill and call your solicitor to find out exactly where the contract is at and what steps need to be taken. Find out whether the contracts are unconditional and what your options are.
In this market you are better off trying to get this sale through than put the property back on the market and risk not selling it for the price you want. Contact the vendors of the property you are wanting to buy and see if you can get an extension on the time for settling. Be honest about needing another signature from the purchaser and the fact that the purchaser is overseas.
I often get frustrated when things don't progress in a timely manner, But I have learned time and time again that the best way to get people to do things is to ask them "what can I do to help get this matter resolved/", as opposed to ranting and raving and blaming everyone. I have had a bank have funds available 24 hours after finance was approved just because I gave them everything they needed, was polite and helpful and did all the running around for them. The easiest way to get people to help you is to make them want to help you.
Good luck
K
It is a bit of a long shot but your buyer may have an appointed power of attorney that would 'with his permission' may be able to sign and complete the contract terms?
Thanks for the help guys muchly appreciated .
No I haven’t resorted to threats or rants yet but in last call to solicitor I did give things a very firm and annoyed nudge. He asked for a couple of days to see if he can contact all concerned and can get it moving.
It’s not really anything to do with a blame game for me , moreso I’ve just had to resort to thinking about that angle to get it moving and where I stand just encase at this stage b/c it’s getting ridiculous . I don’t want any of that I reckon I’ve made that pretty clear but what else do we have when all else fails , especially when they obviously haven’t layed things out to buyer clearly, gotten a deposit and left me wide open like this .But I must admit , I’ve also watched quite a few people over the years wrestle and persist diplomatically even if it’s killing them , with things like this or even council permits whatever, until the job is done . in admiration let me tell ya .
Others are on the phone when they’ve had enough and letting it rip , not sure which ways best , patience is waring bloody thin now though I can tell you.My new purchase is on condition of my sale, they’ll hold but pretty damn frustrating none the less , we’re moving into that one for awhile and desperate to get all that underway and out of here but , on she goes !
My solicitor did ask if I’d like to try contacting buyer but I have already a few times now trying to keep this thing moving and too much now , even he asked last time to best contact him through the solicitors from there on.
We were both fed up with it all . He has tried right through to do everything right and wanted it all through himself asap but there’s been one mix up or hold up after another and now this one .Owell , will soldier on . I’ll recheck the contracts for that info and conditions, call again tomorrow , hopefully he’ll have some contact by then .
Thanks again
CheersJust a further reply to Linar after dropping back in and rereading.
You ask what losses I have made as a result . For starters I reorganized ‘everything’ in my life for this sale – and went ahead with a contract on a new property and contract .
The fact is I was told by solicitor and buyer , sale was definite .
Obviously the deposit goes to me later if buyer backed out of an unconditional contract , to cover my wasted costs and as my compensation . That’s what the damn things are for , security .
I couldn’t go ahead with a buy once but luckily for me the seller returned most of my deposit but did retain $5000 of it.Secondly , I reorganized serious finances because of being told by solicitor and by buyer the sale was safe , and that reorganizing costs me an extra $1200pm so x 3.5 mths thats $4,200 so far since the sale started !
I set that up that way short term as in the long run although it was much more expensive , because of this sale , once through I would have payed that out rather than refinancing it to much lower repayments just for a short term .Thirdly , I now have a bloody large solicitor bill – for nothing ! And then there’s the stress it’s caused , hours and costs in time and phone calls , my new purchase is bugered so more stress – costs and time there .
I thought I made all that well and truly clear post one too !Cheers
You might have a binding contract, but nothing is 100% sure until you have the cash in your bank account. If the sale doesn't go through you will still need to pay the solicitor for their work done, but you may be able to claim this from the purchaser in addition to keeping the deposit.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Hi wannado
I understand that this is all very stressful but for you to successfully sue your solicitor, the courts will want to know exactly what losses you have suffered. Financially, you haven't suffered any loss until the contract falls through, which it hasn't yet. You seem to be getting incredibly stressed over something that hasn't happened yet and you never know, the purchaser may return from holiday and be ready to proceed to sale. Even if the purchaser decides not to proceed on an unconditional contract, you have a legal course of action – suing him for breach of contract.
To be able to claim compensation for emotional stress, you would have to prove that your stress is a direct result of the solicitor's negligence and not for any other reasons. And suing a solicitor would be a very expensive exercise, one that would cost you more than any losses you have incurred to date. You may be able to renegotiate the solicitor's bill when this all concludes though.
My post was really just saying that suing your solicitor isn't really a viable option at this stage for several reasons, namely impracticability and unlikelihood of success. I thought I also gave you some good strategies for trying to get the sale across the line.
K
as you chose the solicitor and you agreed to the contract end date. Hopefully this guy gets back from his holiday soon and does the right thing, in future make sure the contract has a date to finalise by as he would then pay substantial interest for every day he is late. (my in-laws recently sold their place with a fudged date, due to the buys needing to sell other property first, however the date was still 30-90 days, so the buyers had to finalise by the 90 day mark)
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