Take the front page of the contract down to your mortgage broker and formally apply for the loan (if your solicitor advises that you are now exchanged unconditionally) and write a cheque for the 10% deposit
URGENT Cooling Off period advice
- Thread starter jodes92
- Start date
Take the front page of the contract down to your mortgage broker and formally apply for the loan (if your solicitor advises that you are now exchanged unconditionally) and write a cheque for the 10% deposit
Yes, I'm with alexlee.
I think if they sense that you have no money and can't get finance, the vendor's solicitor will advise their client to drop it and get looking for a genuine purchaser, but I wouldn't count on it.
Ouch.
Tell us specifically what concerned you about the building report. They make nearly every house sound like it's about to fall down, so it could have sounded overly scary just because you haven't read many of them.
If this the property you made another thread about regarding the building report?
From what I remember about the thread it seems that the comments regarding the building report wasn't as bad as it may have appread to be.
From what I remember about the thread it seems that the comments regarding the building report wasn't as bad as it may have appread to be.
I don't think anybody's disputing that, I think the angle is "well, if you're stuck with buying, and the only reason you wanted to crash was due to building report, and the building report's not actually that bad, then it may not be a bad thing that you have to proceed".
Take the advice of your solicitor (hope you are not using a conveyancer!). All the others are not qualified to give legal advice.
Propertunity- do you say that, in the effect to go ahead with the purchase, or rather that I should pay the 10% and lose it and just leave it at that and walk away happy with the fact I only lose 10%? (Incidentally I only agreed to a 5% deposit).
I found the below, which I think is what my solicitor is trying to argue:
Basically it seems to me that
- The notice was served by an appropriate person (3a- me the purchaser)
- I served it to the correct person (4c- the real estate agent)
- But not in the correct form.
Myself and my solicitor have scanned the contract for guidance on what is a notice of recission in the "correct form" but to no avail.
When rescinding, I wrote to my real estate agent and stated (amongst general chitchat "I have decided to not go ahead with the purchase". My work email signature was at the bottom of the email.
Anyone have any thoughts on whether this is adequate?
The building report- it was scary, yes, and contributed to my decision not to go ahead. There were a few other personal factors that also did... but these can be overcome, should I be forced to buy.
My concern is, if they are trying this hard to force me to buy, how shonky must this property be?!
CONVEYANCING ACT 1919 - SECT 66U
Cooling off rights
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.
I found the below, which I think is what my solicitor is trying to argue:
Basically it seems to me that
- The notice was served by an appropriate person (3a- me the purchaser)
- I served it to the correct person (4c- the real estate agent)
- But not in the correct form.
Myself and my solicitor have scanned the contract for guidance on what is a notice of recission in the "correct form" but to no avail.
When rescinding, I wrote to my real estate agent and stated (amongst general chitchat "I have decided to not go ahead with the purchase". My work email signature was at the bottom of the email.
Anyone have any thoughts on whether this is adequate?
The building report- it was scary, yes, and contributed to my decision not to go ahead. There were a few other personal factors that also did... but these can be overcome, should I be forced to buy.
My concern is, if they are trying this hard to force me to buy, how shonky must this property be?!
CONVEYANCING ACT 1919 - SECT 66U
Cooling off rights
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.
see s170 conveyancing act re notices
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s170.html
170 Regulations respecting notices
You will notice that email is not mentioned as a method. Unless this was written into the contract of sale then it may be defective service.
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s170.html
170 Regulations respecting notices
You will notice that email is not mentioned as a method. Unless this was written into the contract of sale then it may be defective service.
As Terryw rightly points out, your solicitor is best positioned to provide you advice on this matter. If I were the vendor, I'd be arguing that it wasn't adequate, sorry
, but you're unlikely to get a black and white answer without testing it in Court, and you want to avoid that like the plague.It may not have anything to do with the condition of the property. It's most likely that the vendor just wants the transaction over and done with (ie doesn't want the stress of going back to market), and/or wants the transaction completed within a certain timeframe (for their own reasons).jodes92 said:
No jodes92, I say that, to proceed with the purchase. Even if you do not proceed, you still have to pay up the 10% (if indeed you are unconditional at this point) and on top of that you are still open to be sued for any price reduction that they may have to accept on sale to someone else + selling costs.
The fact that you agreed to a 5% deposit is not relevant, the contract will still call for a 10% if you bail out.
The correct for is in writing and delivered by hand or fax. The law in this area, as I understand it, does not recognize email as a valid 'correct form'. That is, unless the contract of sale has a special condition agreeing to the serving of an email as a correct form. Your solicitor should know this.
This is a NSW contract. The deposit (in your case 5%) is just the next step in what is now an unconditional contract. Really, the deposit is for the benefit of the vendor in case you fail to settle and they decide not to pursue you legally.
Not necessarily. Maybe the vendor has already bought elsewhere and needs to settle this sale by a certain time. Regardless, even if it is shonky, that’s what you were supposed to assess with the building report and reply during cooling off.
Hi Perp- thanks for your very honest response
I'm interested to hear why you would try and go ahead with the contract when you can see it clearly wasn't my intent to go ahead- its merely a stupid error on my behalf for not providing a correct notice? Realise I didn't strictly abide by the legislation but still.....
On another note, you are right, I want to avoid going to court at all costs. At this point in time, can they sue me, or can I just choose to go ahead with the purchase (and not be subject to any penalties etc?).
Further (and I am in no way trying to shift the blame, merely curious), should have my agent advised me that this was not the correct notice? Should have my solicitor tried to call me prior to 5pm? (Once again: disclaimer- not trying to shift the blame- realise we should be held accountable for our actions... to a certain extent anyway!!
I'm interested to hear why you would try and go ahead with the contract when you can see it clearly wasn't my intent to go ahead- its merely a stupid error on my behalf for not providing a correct notice? Realise I didn't strictly abide by the legislation but still.....
On another note, you are right, I want to avoid going to court at all costs. At this point in time, can they sue me, or can I just choose to go ahead with the purchase (and not be subject to any penalties etc?).
Further (and I am in no way trying to shift the blame, merely curious), should have my agent advised me that this was not the correct notice? Should have my solicitor tried to call me prior to 5pm? (Once again: disclaimer- not trying to shift the blame- realise we should be held accountable for our actions... to a certain extent anyway!!
Possibly. Again, what does the contract say about failure to pay the deposit by the specified date? It doesn't matter what I think. What matters is what the contract which you signed says.
The bottom line is, that when your solicitor was unable to contact you for your instructions as the cooling off deadline was fast approaching, he/she should have:
1. Immediately, applied by fax to the vendor's solicitor for an extension of the cooling off period (it may not have been granted but it very likely most times is)
2. In the event that it was not granted, faxed a recission notice so that you did not go unconditional
The last point is a hard call to make (especially if you wanted to buy the property and there were other parties waiting to buy if you did not proceed), but really the only cost to you at that point was your 0.25% - you could have forfeited that and collapsed the contract. Then, if the vedor was willing, proceeded to purchase the property again, but this time with a signed 66W waiving your cooling off rights, the very next day.
Your solicitor does not sound to clued up - especially if he/she is not even aware of where to find the area of law concerned with "correct service" that Terryw has pointed you to.
1. Immediately, applied by fax to the vendor's solicitor for an extension of the cooling off period (it may not have been granted but it very likely most times is)
2. In the event that it was not granted, faxed a recission notice so that you did not go unconditional
The last point is a hard call to make (especially if you wanted to buy the property and there were other parties waiting to buy if you did not proceed), but really the only cost to you at that point was your 0.25% - you could have forfeited that and collapsed the contract. Then, if the vedor was willing, proceeded to purchase the property again, but this time with a signed 66W waiving your cooling off rights, the very next day.
Your solicitor does not sound to clued up - especially if he/she is not even aware of where to find the area of law concerned with "correct service" that Terryw has pointed you to.
They will only be sueing you for the payment of the 10% as you are (it seems), unconditional. As soon as you pay that, the action should cease, as long as you proceed to settlement.
Ah, he/she is not YOUR agent at all. They are the vendor's agent. They are required to answer you truthfully, but only if you ask the right Q.
Thanks Propertunity.
Could the solicitor have assumed that I provided a notice of recission myself or should have they contacted me regardless?
I received a recommendation for this solicitor- don't think i'll use them again (but won't name and shame until this whole thing is over- maybe I won't need to!
My issue is- solicitor isn't too clued in, but what on earth can I do about that? Try and countersue them? Not pay fees? Not much I can really do there...?
Could the solicitor have assumed that I provided a notice of recission myself or should have they contacted me regardless?
I received a recommendation for this solicitor- don't think i'll use them again (but won't name and shame until this whole thing is over- maybe I won't need to!
My issue is- solicitor isn't too clued in, but what on earth can I do about that? Try and countersue them? Not pay fees? Not much I can really do there...?
Because I want my property sold, and I have an unconditional contract, and thus I'm legally entitled to have my property sold by the date specified in the contract. If you can't or simply won't settle, at the very least I want to reserve my right to sue you for the 10% plus any extra damages. If I release you from the contract, ie don't hold you to it, I can't recover anything.
I'm pretty sure jodes92 was referring to the solicitor - who is her agent - not the real estate agent.
It would have been good practise to contact you, but I suspect it's not an obligation.
Having had a solicitor cost me much more than this in the past via their screw-upjodes92 said:
- and with me having much less of a role in the screw-up than you do - I'd say your chances of getting any remedy from the solicitor are zero. You'll find that all the responsibility is with you. If you'd clearly instructed the solicitor to issue a rescission notice and they'd failed to do so, you might be in business, but the solicitor received no instructions from you and had no reason to think that you didn't want the contract to go unconditional. Again, yes, it would be good practise to have contacted you, and they usually would, but I doubt they're obligated.Unlikely, clients can't have assumed legal knowledge, otherwise why do you need a soli?
They tried - didn't they? If after 5:00pm is when they tried, then they are at fault on this issue IMO.
Change soli's next time around. Tell them you are not happy as they failed in their 'duty of care' to you. Threaten to make a complaint to the Law Society.
see above...they might waive fees.
