I had an offer for an OTP apartment which the vendor was on selling. He accepted the offer which included them paying for any stamp duty costs. They are now trying to get me to pay some bits in "cash" so they won't have to pay double SD. I told them no and that they would need to honour our agreement. Should the vendor pull out of this transaction, what can I do? I have already paid my deposit to the agent.
Seller wants to change offer!!!
- Thread starter lowie
- Start date
Vendor breach for a reason not covered in the contract, sue its little a_s off
Often the threat of legal action is enough
from personal experience, Very Often, the threat of legal action is enough,
(vendors think I'm the nice one, and ladylove is the mean one, but they're usually wrong)
Often the threat of legal action is enough
from personal experience, Very Often, the threat of legal action is enough,
(vendors think I'm the nice one, and ladylove is the mean one, but they're usually wrong)
If contracts are yet to be exchanged, then you might not have much to go on. In some states that I've bought in, the only thing that has any weight is the contract - any previous offers in writing etc are worthless. But without knowing your state, and the exact details, I dont know...
Talk to your solicitor - it is these sort of moments that you pay them for
Talk to your solicitor - it is these sort of moments that you pay them for
What i meant is did you have an agreement in writing that he was to pay all stamp duties etc?
If you didnt, you shouldn't have paid the deposit. You've probably lost if you didnt have that part specifically in writing.
If you didnt, you shouldn't have paid the deposit. You've probably lost if you didnt have that part specifically in writing.
then you have no contract or agreement. an offer or invitation to treat only.
I wonder, would you in a normal sale be able to do similar to what you might for phone bidding at auction? Place the deposit in trust in the RE agents trust account so that only when you form contract (win the auction in the case of an auction) the vendor gets the deposit?
I actually don't think that the OP has lost the money in a lawfull way, i.e. if they wanted to I think the OP could turn this into a lawfull debt from the vendor as they got nothing for their deposit at all and there was no contract formed to be breached and even if there was a contract formed they have not breached that contract the vendor has.
To the OP; Have you asked the selling agent what the hell is going on? Surely they would help you get your money back feeling somewhat guilty at being a party to such behavior? I would be hitting them up saying you said they accepted my offer, what the **** happened and how do I get my own money back? Probably have no responsibility but an ethical agent would at the least apply pressure to the vendor to get it back I would have thought? It might give you some comfort even if its only words to say, yes you should get this money back etc.
You also mentioned it was paid to the agent if they have not given it to the seller than you should get it back anyway, they are not honouring the offer accepted.
Edit: Just realised it is only a 0.25% deposit anyway not 10%...
The 0.25% deposit is only forfeited to the vendor if a contract is formed and the purchaser decides to exercise their 'cooling off' rights.
ATM, no contract exists (as vendor has not signed). Therefore the agent is holding the deposit in Trust for the purchaser and must return it to the purchaser when asked to do so.
If both parties do not sign the contract, as others have said, no contract in RE law exists. As the saying goes: "A verbal contract is not worth the paper it is written on".
ATM, no contract exists (as vendor has not signed). Therefore the agent is holding the deposit in Trust for the purchaser and must return it to the purchaser when asked to do so.
If both parties do not sign the contract, as others have said, no contract in RE law exists. As the saying goes: "A verbal contract is not worth the paper it is written on".
The why has he paid a.25% deposit before anything is signed? Is that to atke it off the market? A holding deposit?
I bet he was pressured/lied to by the RE agent if that's the case. Nothing new there.
I bet he was pressured/lied to by the RE agent if that's the case. Nothing new there.
There are no "holding deposits" that hold any legal obligation for the purchase of real estate in NSW.
I am not in this area of law (nor am I a lawyer so rely on this at your own peril!) and perhaps you are and so can set me straight;
Dealing with this around normal commercial contracts where there is far more freedom to form contracts any way you like, I agree with your statement around rights under equity or even an easier path than this, under the common law around contract formation to form a binding arangement verbally if the parties choose this route.
A contract is formed if one agrees with another even if it is verbally as long as the other ingredients are in place and where such verbal agreement has just the same binding effect on both parties if the words were clear and can be proven later. A signature is just irrefutable proof of acceptance which of course helps as to evidence but is not a requirement in normal contract formation.
Around real estate though it appears similar to other areas of law dealing with consumers (ones I am more familiar with like domestic building) where written contracts and further in many states written contracts in a particular form are required to form a binding contract. Of course in these particular areas not having the written contract does not mean the builder does not get paid only that he does not get paid under the contract, which is worse as in the past he often then got paid on a quantum meruit basis or more than if the contract was signed and hence binding under the state regulations. I believe most states have attempted to amend this regulation to prevent this in recent times but have no reason to keep up to date in this area of the law myself.
All this is not to say he cannot get back his holding deposit, as I said above I am certain lawfully it is his, only that he is unlikely to be able to enforce the sale without the formal contract exchange under that states law.
Thanks for your contribution Propertunity and reminding me.
You really didn't answer my question. But no worries, here's another one. Why do agents continue to ask for one? A deposit that is. Before the contracts are signed.
There are a few answers I could give:
1. Don't ask me, ask a selling agent. As a buyers agent, I am on the other side of the transaction.
2. For matters of practicality. If the purchaser signs a contract and pays a deposit, then when the selling agent presents the offer to the vendor, he can say "mr vendor if you sign here, your property is sold ( exchanged subject to a cooling off period ). He does not need to go back to the purchaser for anything more, except to say 'Congratulations'
3. To test how genuine the offer actually is. i.e. Is this purchaser prepared to stump up some cash? (anybody can sign a form).
4. What business does not ask for a deposit before they commence a serious job?
With every written contract (prepared by REIA/REIV/REIQ etc) there should be "Notes" which accompany the contracts. In Victoria we have on the first page of these REIV prepared contracts the Cooling Off conditions.
In a nutshell it states that the purchaser has 3 clear business days in which they can cool off (for whatever reason). However if both parties have signed the contract and the purchasers cool off because of a change of heart, or their reason for cooling off is not to do with any failed 'special conditions' in the contract, then they have to cough up either 0.2% of the full purchase price in the agreement or $100 (whichever is greater, which is usually the former). This money goes to the vendor.
This is why holding deposits are required, so that purchasers show that they are serious, and are willing to risk losing 0.2% of the sale price if they "cool off". Otherwise any Tom, Dick or Harry can make offers without a deposit and withdraw their offers willy nilly... which is as pointless as a verbal offer.
If this is the case and you are on a cooling off period anyone can change the rules but the vendor cant pull out during cool off but they can say no to your changes.... you can then pull out but you will lose your 0.25% - good luck
I remember you saying on here once you were an RE agent. Thanks for your reply. Makes sense.
