URGENT Cooling Off period advice

jodes92

jodes92

Hi Everyone,

My solicitor has gone home for the day and I don't think I will sleep a wink if I can't get some advice on my conundrum!!

I had a 10 day cooling off period which ended today at 5pm.
Based on the building report, I decided to pull out of the sale.
I alerted my real estate agent to this fact this morning via email and received acknowledgement.
I emailed my solicitor however due to my inbox being oversized, this email never sent.

I then went into a work meeting at 4 which didn't finish until 515. I came back to a mass of missed calls and emails from my real estate agent and solicitor stating that as I didn't let my solicitor know, and the cooling off period had expired, I was now bound to purchase!

I am hoping that:
- the fact I emailed my real estate agent
- the fact the I TRIED to email my solicitor
- the fact I didn't provide a 10% deposit

Would mean that I am not bound to go ahead with the purchase (NB: I realise, and am happy to lose my 0.25% deposit).

What is my position?

Few things also (and I'm not trying to shift the blame).
Should my solicitor not be contacting me before 5.15 to notify me of the fact?

Thanks,
Jodie
 
If the property is located in NSW s6u of the Coneyancing Act covers rescinding a contract during the cooling off period:

http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s66u.html

66U Cooling off rights

(1) The purchaser under a contract for the sale of residential property may serve a written notice to the effect that the purchaser rescinds the contract.

(2) The notice may only be served during the cooling off period, but is ineffective if served after completion.

(3) The notice of rescission must be signed by:

(a) the purchaser or the purchaser’s solicitor, or

(b) if there is more than one purchaser, each of the purchasers or their respective solicitors.

(4) The notice of rescission must be served on:

(a) the vendor or the vendor’s solicitor, or

(b) if there is more than one vendor, any one of the vendors or the solicitor of any of them, or

(c) the agent of the vendor or vendors.

(5) Service of a notice under this section may be effected in accordance with section 170 or at the address of the vendor shown in the contract or (without affecting the foregoing) by facsimile transmission or in accordance with the service provisions in the contract.
 
You possibly could be in some trouble if you didn't sign the notice of rescission as it may be a defective notice.

But emailing it to the agent should be proper service.
 
One of those things I reckon. From what Terry is saying may come down to interpritation / legal stoush between what is and what isn't fair service. Having it not signed is a worry but that said I believe an email is considered a legal document these days. It may come down to the vendors attitude and how they want to proceed. Hopefully they are reasonable people and you have been reasonable with them. Good luck.
 
Marty McDonald said:
One of those things I reckon. From what Terry is saying may come down to interpritation / legal stoush between what is and what isn't fair service. Having it not signed is a worry but that said I believe an email is considered a legal document these days. It may come down to the vendors attitude and how they want to proceed. Hopefully they are reasonable people and you have been reasonable with them. Good luck.
Click to expand...

Hi Marty

That is what I was thinking, but then I read the act further and service is actually defined at s170:

170 Regulations respecting notices

(1) Any notice required or authorised by this Act to be served shall be in writing, and shall be sufficiently served:

(a) if delivered personally,

(b) if left at or sent by post to the last known residential or business address in or out of New South Wales of the person to be served,

(b1) in the case of a mortgagor in possession or a lessee, if left at or sent by post to any occupied house or building comprised in the mortgage or lease,

(b2) in the case of a mining lease, if left at or sent by post to the office of the mine,

(c) if delivered to the facilities of a document exchange of which the person on whom it is to be served is a member, or

(d) in such manner as the Court may direct.
.
.
.
.
.
(4) This section applies only if and so far as a contrary intention is not expressed in any instrument, and shall have effect subject to the provisions of such instrument.
 
Hi

Any conveyancer or soli worthy of their piece of paper that allows them to practice would have fired off a request to extend cooling off thus covering such( common) eventualities

Hence why I suspect this is a storm in a tea cup.

ta
rolf
 
jodes92 said:
I am hoping that:
Click to expand...
I've said it before, 'hope' is not a strategy.

jodes92 said:
- the fact I emailed my real estate agent
Click to expand...
That may work but only where the contract says that email is an acceptable service provision in the contract (which it may not).
jodes92 said:
- the fact the I TRIED to email my solicitor
Click to expand...
Nope, that won't fly.
jodes92 said:
- the fact I didn't provide a 10% deposit.
Click to expand...
Nope, that won't fly either. It just means that you are in breach and must pay before settlement.

It will be interesting to see how this pans out.
 
The worst that could happen in this case is that you will lose your 0.25%. Which you are prepaered anyways.

If there is a Finance clause, then you could use that to your defense saying that the Monies are not arranged, hence you are hedged.

Don't lose sleep over this. Its very common for REAs too forfeit your 0.25% as you backed out.

I have lost a few this way..... and whats worse you cant even claim it as tax deduction as it is not cost of purchase yet ;)
 
Gentle_Chief said:
The worst that could happen in this case is that you will lose your 0.25%. Which you are prepaered anyways.
Click to expand...

I would have thought the worst case is that the buyer is forced to settle.

Gentle_Chief said:
If there is a Finance clause, then you could use that to your defense saying that the Monies are not arranged, hence you are hedged.
Click to expand...

The finance clause isn't standard for NSW contracts, that I know of. The cooling off period is it.
 
Hi GC

Alex is correct here. Once the cooling off period expires, as it has done in this case, the buyer is then legally bound by the contract as it becomes unconditional. This means that any rescission now means the purchaser loses their 10% deposit. You only forfeit the 0.25% if you withdraw from the sale DURING the cool off period, for any reason.

If the agent received the email confirming rescission prior to 5pm and acknowledged receipt here, then all should be well. However, I, too, would like to know the outcome here given it's not been strictly carried out by usual means.
 
Hi everyone,
Thanks for everyones response- really appreciated.

I still haven't received a final conclusion. My solicitor believes that because the vendor is covered by three parties, the vendor himself, vendors solicitor and agent, and I let the agent know, and this was accepted that I should have a case. However, no guarantees. I am anxiously awaiting a response.

Will keep everyone posted.

In answer to the question about the building report- pretty bad, at least for a novice investor/ renovator such as myself! :)

Thanks again!
 
jodes92 said:
I then went into a work meeting at 4 which didn't finish until 515. I came back to a mass of missed calls and emails from my real estate agent and solicitor .........

Should my solicitor not be contacting me before 5.15 to notify me of the fact?
Click to expand...

They did, didn't they?

The Y-man
 
Hi Bradsdad- When I say acknowledged, the real estate agent replied to me saying she understood i had pulled out (and offered me several other properties)

Update: I am getting mixed stories from each of the parties but apparently the vendor's solicitor is talking about suuing (sp) me?

I might be better off going ahead with this purchase... any advice?
 
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