All Topics / Legal & Accounting / Deposit and clauses?

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  • Profile photo of AuskiwiAuskiwi
    Participant
    @auskiwi
    Join Date: 2012
    Post Count: 3

    Hi everyone,

    First time here and I need a bit of advise please.

    If I sign a contract to purchase property that has subject to clauses for finance, building & pest inspections etc and have paid 5% deposit, what happens in the case of not obtaining finance or the building inspection is not acceptable?

    Do I get any or all of the deposit back?

    Profile photo of Jamie MooreJamie Moore
    Participant
    @jamie-m
    Join Date: 2010
    Post Count: 5,069

    Generally speaking, yes you should.

    Cheers

    Jamie

    Jamie Moore | Pass Go Home Loans Pty Ltd
    http://www.passgo.com.au
    Email Me | Phone Me

    Mortgage Broker assisting clients Australia wide Email: [email protected]

    Profile photo of AuskiwiAuskiwi
    Participant
    @auskiwi
    Join Date: 2012
    Post Count: 3

    Thanks Jamie, you say generally speaking – in what circumstances would you not then?

    Profile photo of Bruce from BrisyBruce from Brisy
    Participant
    @bruce-from-brisy
    Join Date: 2010
    Post Count: 11

    Hi Auskiwi…small point for a larger answer really – concerning the subject to finance – ensure you make it subject to “your” finance not theirs as if held to the contract and you couldn’t get it through your financier – they could supply finance and authorise the purchase – it is a little more difficult than this, but if you have a good solicitor not just a conveyancer, they should point this out to you in any case and YES to most occurrences were your contract falls through due to finance, pest, building inspections then you would get your money back. Also think about one of your clauses being due diligence (DD) say for 14 days longer (i.e. 21) if you can get it. That is where you have all your tradies come in and gives you exact quotes on what needs to be done….if the work is outside your budget then the DD fails and you end the contract. Some will not like giving you 14 or 21 days DD but if they will not come to the party walk away there are plenty of properties out there. A lot of rental property contracts for purchase with occupants the agent will give you a 37 day contract i.e. 7 days to go unconditional + 30 days notice to tenant. Ensure the DD is completed and specified in contract as part of the unconditional agreement not just the banks rubber stamp. Hope this helps and there are a lot of member on here who can give you plenty of good opinions – my advice listen to them all and take out what you need. Cheers.

    Profile photo of TerrywTerryw
    Participant
    @terryw
    Join Date: 2001
    Post Count: 16,213

    Depends on the wording of the contract. You could word it in your favour with all the money to come back.

    Don't draft it yourself but get a lawyer to do it.

    Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
    http://www.Structuring.com.au
    Email Me

    Lawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au

    Profile photo of AuskiwiAuskiwi
    Participant
    @auskiwi
    Join Date: 2012
    Post Count: 3

    Thanks to you all for your advice, it certainly helps to have a bit of guidance when you are new to this.

    Cheers
    Auskiwi

    Profile photo of CatalystCatalyst
    Participant
    @catalyst
    Join Date: 2008
    Post Count: 1,404

    Usually you would only pay the .25% holding deposit then at the end of the cooling off period (after you have sorted the finance etc) THEN you pay the 5-10% deposit. Well that's in NSW.

    So at worst you'd lose .25%

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