Owner Finding Excuses

We bought the property almost 12 weeks ago, with a settlement of 12weeks. 10% deposit was paid on the day and is held at the realestate agent.

Just coming off the phone with my solicitor, she told me that the owner prob cannot settle on the set day as she said they do not have or cannot find the title to the house, and they are not apologetic but really rude and seems disgruntled. They also said one of the owner is overseas so they cannot get a new title as it needs both their signature.

This made me think that the owner had a change of heart in the sale. We went to alot of trouble to get all the finances done, and the solicitor told me the only thing she can do is send a notice to complete with in 14days. And she told me that there isnt anything else todo.

Has this happened to anyone else? what are my options, can i get any compensations if the sale are not complete on the settlement or if at all can be completed. Also would i receive back the deposit from the realestate agent? and would interest be available on the fund.? and what do i do with the stamp duty already paid.

As at this stage i think the owner have no intention of completion, and in the contract of sale i cant see much penalty for the owner, it seems to only penalize the purchaser....

Sorry about the long post, any advise appreciated.
 
We recently delayed the settlement of a property we sold due to unforeseen delays with moving the loan security. We asked our solicitors if this would be a problem, and we were advised that there was nothing in the contract stopping us from delaying indefinitely (as opposed to a buyer delaying).

Check your contract to see if there are any conditions whereby the vendors are required to settle by a certain date.

Your deposit will not earn interest.

What stamp duty have you already paid?

Cheers,

The Y-man
 
I had a chat a couple of months ago with a friendly lady who bought a house off a grumpy old bugger who felt that he had been ripped off, despite him signing all of the documents.

He simply refused to settle or get out.

I think it took them over 2 years, lots of lawyer fees....over 100K with the lovely to-ing anf fro-ing with threatening letters that don't have any real teeth.....eventually went to the Supreme Court cos at every turn he kept on saying "get stuffed, I'm not shifting".

They got quite a few grey hairs over the ordeal and it cost them way more in stress than money.

Settlement eventually took place, he got forcibly turfed out by the bailiffs and they were so traumatised by the whole affair they quickly on-sold it and walked away.

That last bit was the only bit that didn't make sense to me from an economic point of view, offloading it after going through all of the grief to get it.....but obviously I was listening to the condensed 5 minute version, rather than the 2 year drawn out version.

Lesson learnt I suppose.....if the clause addressing this issue isn't in the "standard" contract of sale.....make sure it damn well is that the Owner must yield up vacant possession, else penalty clauses kick in from the day settlement was supposed to take effect. Don't settle for "standard wording" in contracts with REA's....it's been written with the Vendor and REA in mind.
 
We recently delayed the settlement of a property we sold due to unforeseen delays with moving the loan security. We asked our solicitors if this would be a problem, and we were advised that there was nothing in the contract stopping us from delaying indefinitely (as opposed to a buyer delaying).

Check your contract to see if there are any conditions whereby the vendors are required to settle by a certain date.

Your deposit will not earn interest.

What stamp duty have you already paid?

Cheers,

The Y-man

The office of State Revenue will want their stamp duty on the original settlement date even if you do not settle. You can apply for an extension but you wont be able to hold them off forever.
Something to ponder...
 
oh god, that sounds bad, i hope the seller would proceed with sale, as there is nothing stating penalties for the vendor to drag on the process as such.

The standard contract of sale is horrible for purchasers...

So stamp duty will not be refundable? because i paid that more than 2 weeks ago, as was told stamp duty need to be paid 3 weeks before settlement, man that really sux.

Also how the deposit(a big sum) doesnt earn any interest when held in the trust account of the agent, where i am sure they are enjoying the interest revenue.

EDIT: Would the realestate agent be at all responsable? ie compensation and such from them.
 
oh god, that sounds bad, i hope the seller would proceed with sale, as there is nothing stating penalties for the vendor to drag on the process as such.

The standard contract of sale is horrible for purchasers...

So stamp duty will not be refundable? because i paid that more than 2 weeks ago, as was told stamp duty need to be paid 3 weeks before settlement, man that really sux.

Also how the deposit(a big sum) doesnt earn any interest when held in the trust account of the agent, where i am sure they are enjoying the interest revenue.

EDIT: Would the realestate agent be at all responsable? ie compensation and such from them.

The real estate trust account will not be interest bearing so they won't make anything out of it.
If the sale does not eventuate, you should be able to get a refund of stamp duty paid...the rules differ from state to state.
In WA stamp duty forms must be lodged within 2 months of the contract becomming unconditional, then you have 1 month to pay from issue of notice.

Boods
 
oh god, that sounds bad, i hope the seller would proceed with sale, as there is nothing stating penalties for the vendor to drag on the process as such.

The standard contract of sale is horrible for purchasers...

So stamp duty will not be refundable? because i paid that more than 2 weeks ago, as was told stamp duty need to be paid 3 weeks before settlement, man that really sux.

Also how the deposit(a big sum) doesnt earn any interest when held in the trust account of the agent, where i am sure they are enjoying the interest revenue.

EDIT: Would the realestate agent be at all responsable? ie compensation and such from them.

Hi Orin,

The deposit can be invested into a bank account and interest is generally split between the RE Agent, Vendor & Purchasor however this is more common in extended settlements. You need to advise the RE Agent that you want them to do this beforehand.

As for Stamp Duty - who did you pay it to? Your solicitor or conveyancer should be still holding it in readiness for settlement. They usually prefer to have it early in preparation. I've never heard of it getting spent beforehand.
 
Oh really? I hope that is the case.

Because my solicitor demanded for a cheque made to the Office of State Revenue more than two weeks ago, so i assumed that it was needed to pay immediately.

Your suggestion could be right as i still havnt gotten a receipt from the government, only got a written one from my solicitor that she have received a cheque for the government.
 
EDIT: Would the realestate agent be at all responsable? ie compensation and such from them.
Nope. Unfortunately, under a standard contract you won't be able to get compensation from anybody. :( And no contract would give you redress against the agent, unless it was somehow the agent's fault that settlement doesn't proceed. But if it's just that the vendor won't or can't settle, you'll unfortunately just have to walk away.
 
Oh really? I hope that is the case.

Because my solicitor demanded for a cheque made to the Office of State Revenue more than two weeks ago, so i assumed that it was needed to pay immediately.

Your suggestion could be right as i still havnt gotten a receipt from the government, only got a written one from my solicitor that she have received a cheque for the government.

Some solicitors probably just want everything well organised beforehand to avoid last minute problems.

My fella has to wait till a day or two before settlement to get my SD. He trusts me now that I have a few transactions under my belt. Gotta keep that money working till the last minute. :D
 
One option is to demand early possession. I have done this before - taken possession before the sale went through because the sale was held up by the vendor's bank. The seller has to agree to it. If they dont agree you can threaten to call the deal off.
 
Getting a new title while one vendor is overseas is not difficult. Have their solicitor email the form to them and a statutory declaration for signing, they then express international post to Australia where the second vendor signs. It is then a matter of lodgement with the titles office and waiting for them to get into gear and reissue the title. It is a genuine problem which, despite the importance of a title document, is surprisingly common.

If you think they are just delaying because they don't want to settle, they might be scared into settling if you point out you can take him to court, get specific performance, and then seek an order for reimbursement of your legal fees. He would be significantly out of pocket having paid both his legal fees and yours once it got to that point.

First step, regardless of whether or not you intend to get specific performance, is to get your solicitor to place a caveat on the property. They won't be able to sell, re-finance or have any other dealings with the property until they settle the sale. If they have lost the title it is unmortgaged (if mortgaged the bank holds the title, though they loose them just as often as the owners do), and you are tying up a significant asset of theirs. Make it clear that the only dealing they will have with the property is with you.
 
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