agree to a new contract but $100k on top of it, for your pain and BS suffererd
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You could just sign a new contract that has the condition. "This contract superceeds all and any prior contracts between the vendor and buyer, whether written, oral and implied"
If the lawyer's firm name (from the CBD) starts with a C please PM me with details of the agent - I may have encountered these two before with a property at Hendra.
Usual tactic- caveat property (when seller realizes he's been undersold and cancels) start proceedings and let litigation fester. 5 years later seller chooses to sell again only to find he has to negotiate to remove caveat.
I don't believe that the contract was never even valid to begin with so I don't get why I am even having to entertain this guys threats and intimidation tactics. My solicitor says that he is just giving him enough rope to hang himself with and if he does somehow manage to put a caveat over the property then I will be able to sue his **** off. But I'm not interested in suing anyone or playing these stupid tit for tat lawyer games.
Bottom line is the buyer listed on the contract is the "Smith Family Trust" (not the real name of course).
And from everything I have read of the last week regarding family trusts the contract was never valid to begin with since it is only the trustee/s who can legally enter into contracts not the trust itself.
In legal terms, a trust is a relationship not a legal entity.
A trust is not a legal entity and cannot contract in its own right.
A trust is not a separate legal entity and cannot contract in its own right.
A trust is not a legal entity in its own right so cannot enter into contracts.
I mentioned this same point earlier in this thread and Terry responded with "But if the trustee has signed the contract then it could still be a binding contract - from that angle".
The conveyancing paralegal in my Solicitors Office sent a letter to the buyers lawyer as soon as they received the contract asking them to advise the correct name of the buyer and they never received any response from the buyers lawyer and that was over 3 weeks ago now so that argument that Terry put forward that the contract may still be legally binding if the person who signed the contract was a trustee of the trust would be a bit of a stretch wouldn't it???
Mr Trust, first name Smith, middle name Family?
What does your solicitor say about this? I have never come across this before, but would argue that having an incorrect names does not necessarily mean the contract is not valid.
It's the old contract principle of rectification. An obvious mistake can be rectified which would give it the intended meaning. It's not as if the person signing was pretending to be anything but the trustee of the trust.
What does your solicitor say about this? I have never come across this before, but would argue that having an incorrect names does not necessarily mean the contract is not valid.
I'm a bit surprised that there isn't a sort of standard way for dealing with trusts and this legal entity issue
I know of one company which deals with trusts the same way as Renoir outlined and requires a person to be listed as trustee of the trust
There is a standard way of dealing with trusts - and that is the trustee is the person who enters contracts. There is no requirement for a person to be listed as trustee either, it could be a company.
Yes Terry I believe this probably was meant to be purchased in a company name, I have searched his other properties on Pricefinder and they are all in a company name as trustee for his family trust. So I presume that is how he intended to purchase this property as well.
Yes Terry I believe this probably was meant to be purchased in a company name, I have searched his other properties on Pricefinder and they are all in a company name as trustee for his family trust. So I presume that is how he intended to purchase this property as well.[/QUOTE
Have you considered what this means in terms of risk. Are there any special conditions listed to make the directors personally liable? If it is a company that has entered the contract and there is a dispute you may be suing an empty shell.
Have you considered what this means in terms of risk. Are there any special conditions listed to make the directors personally liable? If it is a company that has entered the contract and there is a dispute you may be suing an empty shell.
There is no company name written on the contract I was just saying that I think that is probably what he meant to put on the contract as his other properties are in a company name as trustee of the family trust.
The buyer on my contract is simply "Smith Family Trust."
And I don't want to sue anyone, I just want this guy, his lawyer and the agent to accept that the sale is not going to proceed and stop trying to force me to sell it to him.
The conveyancing paralegal in my Solicitors Office sent a letter to the buyers lawyer as soon as they received the contract asking them to advise the correct name of the buyer and they never received any response from the buyers lawyer and that was over 3 weeks ago now so that argument that Terry put forward that the contract may still be legally binding if the person who signed the contract was a trustee of the trust would be a bit of a stretch wouldn't it???
. It is the agent who is emailing me saying the buyer wants to do a new contract etc
I feel more relaxed about the situation knowing that your solicitor has contacted them unsuccessfully about the contract...particularly if that is in writing. If the buyers solicitor has not responded, then you would have reason to believe that they were not pursuing the contract anyway.
It sounds like your solicitor is working for you and has things under control. I dont think you need to be panicking just yet...
I would refer any communication from the agent to the solicitor and ask them to deal directly with them. It sounds like they are not very ethical, and its better to have all communication now going to a central point. We also did this with our agent, because we felt they couldnt be trusted in their communication. I would keep them out of the picture, because they are just muddying the waters at the moment.
Renoir, the land titles offices does not do a legal analysis when someone lodges a caveat. They may do no checks at all. They just require the basis on which a person is lodging. So a lodger could write on the form that they have an equitable interest due to exchange of contract of sale. No evidence is needed.
If you as the legal owner dispute their right to lodge a caveat you would have to apply to the supreme court to have it removed.
Don't get too worried about things at this stage. Just let your lawyer do his work and tackle this issue if it arises. I just wouldn't be selling the house to anyone else at this stage.