Hello Helen
Can I check some facts here:
You put an offer on a house – submitted a written and signed contract
The offer was accepted by the vendor – signed by the vendor and the contracts exchanged
The building report showed that the concrete slab had shifted 10cms and you negotiated a reduction in the price as per a quote you had obtained for remedial work
The reduction in price was agreed to by the vendor in writing – was the contract amended to the new price?
The vendor has now withdrawn from the contract
You also consider that the vendor should not have required or allowed further inspections of the property during the period between exchange of contract ‘subject to’ the building inspection
You consider that the Agent should have stopped advertising or marked the advertising as ‘under contract’ during the ‘subject to’ period
Apart from questions such as why would you want to buy the property with such material problems, it would seem to be that the problem lies with the vendor withdrawing from the contract when it was not their prerogative to do so.
It would also seem that your conveyancer’s comment
‘we advise the agent could be in breach of his duty and professional code of conduct if he marketed the property while the contract is still in force’ is gratuitous and irrelevant. The Agent is acting under a professional duty to the vendor and on their instructions. Not to continue marketing the property until there is an unconditional contract of sale would be in breach of that duty unless specifically instructed to cease by the vendor. The agent is the agent of the vendor and must act according the authority from the vendor. The agent does not owe you a duty of care in this regard.
It would seem to me that your concern should be with the vendor and that you should instruct your conveyancer or more specifically, your solicitor, to seek redress from the vendor, either feasance of the contract or reimbursement for the building inspection costs
However, to want to ‘get back’ at the agent is neither accurate nor productive, as the agent is not a principal in the contract.
The vendor is, so if (a) the contract has been signed and exchanged, and (b) the reduction in price was agreed to in writing, and (c) the contract is then unconditional, the vendor may not withdraw from the contract and can be required to proceed.
You may care to contact Consumer Affairs Victoria
http://www.consumer.vic.gov.au/CA25...ling+Property~&2=60-When+Things+Go+Wrong~&3=~ where you can clarify with someone who is impartial as to the law regarding the promoting of property for sale.
Provided that an exchanged contract of sale does not yet exist, ie, a written offer by the purchaser accepted and signed by the vendor and a copy of the signed contract returned to the purchaser, then an agent is required to continue to promote the property and to elicit offers from prospective purchasers.
At a recent Auction in Melbourne, a higher offer was accepted after the fall of the hammer, and the subsequent sale proceeded. The buyer was gazumped. This may be unpleasant but it is not illegal.
Sorry to hear that you have been disappointed. You may care to consider that attempting to wreak vengeance on the agent may be an inappropriate action and not one founded in law, nor in common sense.
Far better to find another property where the concrete slab is where it is meant to be and where the vendor keeps to their side of the bargain
Cheers
Kristine
Have you paid a deposit yet?
