accepted offer different from original

[magich2o]

Typically, if we want to buy a property, we would sign the contract first, pass it to the vendor (via the agent) and then if our offer is accepted by the vendor, they'll sign it and then give us back a copy.

Now, what happens if the vendor decides to, without telling you nor the agent:
1) add a new page that wasn't originally in the offer
2) remove a page from the offer
3) worse still, replace an existing page by making a copy of the original but inserting a new paragraph.

Now that would be disastrous if we didn't pick that up but even if we did and went back to the vendor, what if the vendor does a dirty on us and maintains that his copy was the original and that we had actually doctored our copy?

Why would a vendor do this? Well, a lot of the dishwashers/fittings/etc are usually contained in a separate inclusion list page and if they take out that inclusion list from the contract... voila, they don't have to include that anymore... I know it is important to therefore write all fittings down as part of the chattels but there are other ways for the vendor to get out of it by including other special terms, etc...

So, what avenues do we have now, especially given that we are now committed to the contract as the offer (though not the original offer) has been accepted?

 

[Robert]

I take digital photos of properties when I do inspections. I especially take note of any chattel that is worth any value.

Then on my last inspection before settlement, which I always make sure is after they have moved out, I inspect what chattles are have been removed and if they were included in the contract or not.

This is especially so if you have lead light fixtures etc. The vendors can easily swap them out and the buyer can easily over look this. If you have a photo copy of the property you have the upper hand....

Anyway, this is just one step in purchasing that I use.

Hope it helps.

Robert

 

[asy]

Um,

Which copy correlates to the agent's?

I assume yours does, and the agent will be willing to attest to this.

If not, consider walking away.

In addition to this, if the agent is not willing to back you up I would seriously consider discussing the matter with the office of fair trading.

Can you cool off?

How much was the contract for?

What conditions were in the original contract (subject to finance?)?

I can't see how you could POSSIBLY be bound by this contract, since it is not what you signed.

asy

 

[geoffw]

Sorry if I've missed something here.

You've made an offer. That's not a contract. Even if the offer is accepted, my understanding is that it's not binding until exchange. I would have assumed that you would have had some room to move even before completion for items you may have reasonably assumed were a part of the purchase.

I thought that items such as light fittings or curtains you could normally assume were a part of the purchase unless otherwise stated.

Your solicitor though should be able to give better advice.

 

[asy]

Originally posted by geoffw
Sorry if I've missed something here.

You've made an offer. That's not a contract. Even if the offer is accepted, my understanding is that it's not binding until exchange. I would have assumed that you would have had some room to move even before completion for items you may have reasonably assumed were a part of the purchase.

I thought that items such as light fittings or curtains you could normally assume were a part of the purchase unless otherwise stated.

Your solicitor though should be able to give better advice.

Geoffw,

Have a look at magicwater's post.

He says sign a contract. In Victoria as soon as the purchaser signs the contract it is binding upon him and the cooling off period starts. It is then up to the vendor to accept or not accept the contract, when they do, the contract is confirmed.

The fixtures are things which cannot be removed from a property without causing damage.. Such as carpet, tiles, kitchen, etc...

The chattels, are things which the vendor owns that may pass with the property. Curtains are an example of a chattel. They can be removed without damage, and would need to be specifically included if you wanted them to stay, although having said this 95% of vendors assume they are going to be left there.

I agree, magicwater needs to see a solicitor, especially if s/he wants to get out of the contract now that it has been changed.

asy

 

[geoffw]

OK Asy, thanks,

That's what I did not understand.

I'm used to making an offer, putting in a holding deposit ("good faith"), and going on from there.

I have had an offer accepted in NSW, and then had the vendor back out before exchange.

I assume then that this could not have happened in Victoria.

Edited to add:

btw, is it in Victoria? It's not stated.

 

[XBenX]

Dont know if I got the point of all this but you can avoid thse problems by signing each page of the contract, then if the vendor tries to replace a page they need to forge your name.

This doesnt stop them removing a page though (and claiming that you added the page (note this is only when you sign a contract and wait for them to sign)... hrmmm I never thought about that

Its really important when you exchange contracts to check very closely that your contract matchs the vendors and that way as long as both copies are signed on each page you have no problems (this is under the assumption that is not binding until exchange - ie youve signed each others copy of the contracts)

 

[NigelW]

Originally posted by magich2o
Typically, if we want to buy a property, we would sign the contract first, pass it to the vendor (via the agent) and then if our offer is accepted by the vendor, they'll sign it and then give us back a copy.

Now, what happens if the vendor decides to, without telling you nor the agent:
1) add a new page that wasn't originally in the offer
2) remove a page from the offer
3) worse still, replace an existing page by making a copy of the original but inserting a new paragraph.

Now that would be disastrous if we didn't pick that up but even if we did and went back to the vendor, what if the vendor does a dirty on us and maintains that his copy was the original and that we had actually doctored our copy?

Why would a vendor do this? Well, a lot of the dishwashers/fittings/etc are usually contained in a separate inclusion list page and if they take out that inclusion list from the contract... voila, they don't have to include that anymore... I know it is important to therefore write all fittings down as part of the chattels but there are other ways for the vendor to get out of it by including other special terms, etc...

So, what avenues do we have now, especially given that we are now committed to the contract as the offer (though not the original offer) has been accepted?

You made an offer on certain terms. If the vendor purports to accept your terms but makes a change, that is not an acceptance of your offer but a rejection of your offer and a counter-offer by the vendor which you can accept or reject.

They can't unilaterally bind you to something you didn't agree to.

I may not have read Asy's post correctly but no statutory provision is going to change that. The fact is your offer said "X" if the vendor purports to accept that offer but has altered the terms to "X+Y" then there's no contract. no "consensus ad idem" or "meeting of the minds" which is lawyerspeak for NO DEAL!

Cheers
N.

 

[NigelW]

ps. Forensic document examination is a wonderful thing these days.

An FDE can tell when a document was signed, use DNA to say who handled it, look at the impression the pen makes into the paper to say whether it was a forged signature, say whether the paper matches the rest of the sheets in the document. Look at font size, ink chemical composition, type face and then stylistic issues as well.

RULE 1

- Read the whole damn contract to make sure they haven't changed it.

RULE 2

- Always keep a copy of your offer

RULE 3

- Take down details of fixtures which you think you're getting. Eg make, serial nos etc. Rob's idea of digital photos is a very good one as well.

RULE 4

- If they're trying to shaft you, stick to your guns, call your lawyer and get an FDE involved.

Cheers
N.

 

[Kevmeister]

Hand-numbering every page makes it impossible to remove any page from the contract, because then the number sequence will be out (except the last page).

To prevent this, you could have an "End of Contract" page which is also numbered. Nothing can come after this.

 

[XBenX]

cool Kev - good idea - i havent done that in the past

added to my list of exchange notes

 

[asy]

Re: Re: accepted offer different from original

Originally posted by NigelW
I may not have read Asy's post correctly but no statutory provision is going to change that. The fact is your offer said "X" if the vendor purports to accept that offer but has altered the terms to "X+Y" then there's no contract. no "consensus ad idem" or "meeting of the minds" which is lawyerspeak for NO DEAL!

That's what I was trying to say in:

I can't see how you could POSSIBLY be bound by this contract, since it is not what you signed

Thanks for putting it much more eloquently!! hehe

asy

 

[Kevmeister]

I think Magic's point is that the contract has been changed after they signed it. Yes, logically they shouldn't be bound by the contract, but I guess they need to prove that?

 

[magich2o]

Thanks all for your valuable input - I think Kev's got the best suggestion, which is to hand number ALL pages and adding "End of Contract" to the last page on ALL copies of the contracts, and ensuring that the vendor returns a copy of the handnumbered contract.

I sure will be doing that from now on.

For the record, all went well with the contract and we settled okay eventually. But along the way, from speaking to solicitors, I've realised that there are a few ways of getting out of the contract if the vendor has added in a few conditions/pages without you knowing. 2 of these are:
1) A new condition is added in that makes the contract price GST-exclusive - purchaser now becomes liable for an additional 10%
2) A Head Contract condition is added - this pretty much gives the vendor the ability to get out of the contract by simply not settling on the head contract.

Any one else had similar experiences...

 

[Jacque]

It is sad but true that 95% of buyers ASSUME that all usual chattels are staying in a property. However, this is not always the case and not only can they be NOT included in the list of inclusions, but the agent can then use them as "bargaining tools" later on, to get you to increase your offer.

Imagine, you've negotiated hard only to discover, upon signing the contract, that the dishwasher, pool cleaner, chandeliers and those brocade tapestry curtains were all accompanying the vendors to their next abode! Keep a sharp eye out, get a list of the contract BEFORE you make an offer and take photos (as Rob suggested). I even know of one vendor who dug out her front garden azaleas to load into the removalist van!! (The new owners were a bit perplexed as to all the large holes in the front garden bed on settlement day!)