Solicitor recommendation - vendor delaying settlement

[Undervalued]

Hi all,

I bought at auction 6 weeks ago and last week was informed via my conveyancer that vendor can't settle to plan because of "issues with their Bank". In discussing options with my conveyancer I lost confidence that they know what they're doing so am now seeking recommendations for solicitors experienced in this area, also I welcome feedback from the members of this forum, particularly if you've been through this yourself.

Further, I did a bit of exploration today, finding out that the vendor is undertaking significant renos in their future home - builder reckons at least a couple more months of work. Given the vendor is a licensee of a big brand real estate agency, this whole thing is **** poor... I am looking at plan B - enforce notice on the vendor and get my deposit back to buy elsewhere.

I want to talk through options with a solicitor experienced in this area - key qns:
(a) how do I actually make the agent / vendor return my deposit?
(b) after I serve notice, on expiry of the deadline, does the contract itself automatically lapse, or do I get the right to rescind? I would prefer the latter so I can keep looking for property elsewhere with the threat to the vendor that I can pull out anytime.
(c) what other options / considerations are there?

I do get that answers will depend on the contract itself, but it is pretty standard and would still appreciate views / recommendations on this matter.

Appreciate your help!

 

[Terry_w]

You would have to read the contract to see what you have agreed on. You would normally give them notice to complete and then terminate the contract if they don't settle in the required time. You woukd then get the deposit back.

 

[Undervalued]

Thanks Terry.

I heard it is also possible to enforce the contract through the courts - is that a viable option?

What happens if the deposit is not paid back? What mechanism / recourse do I have?

Have you dealt with serving notices before? I understand it's fairly technical and I don't want to do anything that might give the vendor a right to pull out (particularly while keeping my deposit).

I was expecting a broader response here but I guess this type of situation is uncommon!!

 

[DaveM]

Per Terry, have your conveyancer issue a notice to complete and after 14 days terminate the contract. I hope your conveyancer was smart enough to not agree to release of deposit.

There is no real way to force a vendor to settle - its one sided in their favour since its almost always the purchaser who cant settle after going unconditional. Notice to complete is about all you get unless specifically worded in as a special condition.

You will be entitled to your deposit back plus any interest if it was invested. If your legal costs were significant then you can pursue the vendor for costs, but for a standard $850-$1500 conveyance its not normally worth it.

 

[depreciator]

Do you still want the house? Do you want to go through all the hassle of finding something else?
Maybe they are stalling on settlement because they aren't in a position to move out. Could you suggest settlement proceeds as arranged and the vendor rents the house from you till they are ready to leave?

 

[Home by CIX]

Hi,
I use Williams Roncolato Lawyers, they specialise in property. I like them, they are quick and professional. They will look through the contract for free so you really have nothing to loose.

http://www.wrlegal.com.au/

Cheers
Cecilia

 

[Terry_w]

Thanks Terry.

I heard it is also possible to enforce the contract through the courts - is that a viable option?

What happens if the deposit is not paid back? What mechanism / recourse do I have?

Have you dealt with serving notices before? I understand it's fairly technical and I don't want to do anything that might give the vendor a right to pull out (particularly while keeping my deposit).

I was expecting a broader response here but I guess this type of situation is uncommon!!

You could attempt litigation if you are game. Could be expensive.
If deposit is not paid back you could take legal action. It is usually held on trust for you until completion.

Serving notices is not too technical. It may be done in accordance with what is agreed in the contract.