What are Disclaimers for if they don't protect us!

[Mamaof3]

We recently sold a new house, internet, newspaper ads and every other place the house was advertised was done so with NO A/C except the brochures that were printed and handed out to people that came to the opens.

People that attended the open who asked about A/C were told that the house didn't have A/C (pretty obvious given there are no ducts/vents etc).

Buyers signed contract, cooling off passed and then some weeks later called up our agent to ask about A/C. Agent told them there was no a/c..they weren't happy about it but appeared to have accepted it.

We're 12 days away from Settlement and now they're threatning legal action. They claim that the brochure advertised the house with A/C. These brochures get typed up by a Human so human error/typos can occur which is why there are disclaimers on all the Agents brochures to tell people that the information may not be 100% accurate.

Their Conveyancer is pretty well saying they have a case and we need to install a/c in the house prior to settlement OR reimburse them for doing it.

Apparently one of the top Conveyancers in Adelaide (our agent called them for advice) said that those Disclaimers aren't worth the paper they're written on don't mean anything and that to not delay settlement we should put in the a/c

Anyone reckon they've got a case here?

 

[wylie]

I don't know the legal answer but if it turns out you are forced to have to install air con, could you put a small, cheap split system in? Tiny, cheap but you can then say it has air con. What does your solicitor say? I reckon they might be trying one on.

 

[The Fence]

Nice try from the buyer...lol...the audacity...!

Why don't you tell them to check the contract for sale to see what is included and what is not...! end of story....

Buyer beware on this one IMO.....

 

[Mamaof3]

we've priced one from cunninghams warehouse yesterday so if need be we'll chuck that in but then the conveyancer was saying if we put one in now, it'll be pretty well saying we accept liability and that yes house should've had a/c...then if we do that the buyers have more of a case and may try and fight for a fully ducted reverse cycle unit.....

we didn't sell the house at a very good price so to throw in fully ducted reverse cycle would just be painful

arghhh, so annoying.

 

[Mamaof3]

i'm sure floorplans aren't exactly accurate to the millimetre either...and its not like people are pulling out of contracts or demanding the rooms be rebuilt according to the drawn up floorplan!

Its a little annoying actually because its our agents who are telling us we should just chuck in a cheapie split system because the brochure just said 'a/c' and wasn't any more specific about it...but they're expecting us to pay for this? That typo wasn't any of our doing so why do we have to pay for the unit? I reckon Agents should at least offer to go halves....oh hang on, we're talking about real estate agents here....no chance of that happening then

 

[battler]

Its a little annoying actually because its our agents who are telling us we should just chuck in a cheapie split system because the brochure just said 'a/c'

Of course they're saying this, it's their responsibility, don't forget you paid them for the advertising and if its not in the contract it doesn't exist.

 

[rugrat]

IMHO this is the buyers problem not yours. If airconditioning was not included in the contract, then they have no reason to have an expectation that it is part of the deal. It is their own stupid fault for not doing their DD. furthermore, it is not as if your did have aircon and then just uninstalled it, you didn't have it in the first place.

 

[Collector]

IMO the buyer is trying there luck.

A second thought - who made the mistake on adding A/C to the brochure (agent?), did you sign off on the brochure?, if it is not your fault and the mistake of the agent tell them to install it and deduct the cost from their commission as it was their error.

A third thought - what did the brochure actually say - did it simply say A/C, or did it say combined lounge and dining with A/C or ducted air throughout. If push comes to shove do the least - place a window unit - cooling only in the laundry.

 

[Dazz]

The little asterisk.....

Ah, the joys of the little asterisk in "1 font".

I would not install anything. The brochure should have the usual RE gumpf plastered over it where it says that everything contained within the brochure cannot be relied upon, and any potential Purchaser is to satisfy themselves that all details "presented" are to be checked to their satisfaction before executing the Sales Contract......which typically has none of the fluffy details of the brochure material.

As usual, most people do bugger all DD, and instead rely solely on what the Seller's paid agent spoon feeds them. It's definitely a grey area when you get lawyers and magistrates involved - but then what isn't grey with those clowns !!!!!

As a Purchaser, I never rely on a single word REA's say or a single written word.....as they all, without fail, specifically exclude both themselves and their boss (the Seller) from warranting anything at all. That's why I never ask REA's any questions. They legally cannot speak or write anything to you as a Purchaser, so why bother ??

The suggestion to "tell the REA" to pay for their error is a hopeless cause. Firstly the REA won't pay for something they haven't admitted yet that they are at fault with.

I can only presume, cos the REA's principal has sat down with their solicitor years ago and thrashed out their specific Vendor engagement contract that you would have signed to engage them. If they allowed themselves to be left wide open for you to recover funds from them for something as common as this, then both the principal and his advising solicitor need to get another job.

 

[Perp]

Well, IMHO as an "interested legal amateur", there are two competing principles suggesting what the outcome will be:

1) Contracts are agreed to be a memorialisation of the entire agreement between the parties. So if it doesn't mention air-conditioning, the purchaser hasn't a leg to stand on.

2) Disclaimers aren't usually worth the paper they're written on; courts have demonstrated many times that waivers and disclaimers have little to no practical effect. (eg Those signs saying "management accepts no responsibility..." etc, nearly always are just to try and scare you into thinking you can't sue them, not because they actually have legal effect.) And the agent's brochure is certainly something that it seems a "reasonable person" would be entitled to rely upon.

So it comes down to this: which of these legal principles is likely to predominate, given that the former sounds good for you, and the latter seems bad for you.

I think the balance is tipped slightly in your favour, and I'd be inclined to bluff them. Don't install air-con, and sue for specific performance if they fail to settle. And sue the RE agent for negligence, because that's pretty appalling that they handed out a brochure with the wrong information.

A very sticky situation indeed. Have you sought legal advice?

 

[wylie]

Whilst I think you should call their bluff, and as I said previously, if forced to install, do the cheapest way possible, I am wondering now whether a contract for sale of a house with air-con actually mentions the air-con in the contract?

I mean, isn't it a bit like lights and power? Unless it is just a window mount which is easily removed, would anybody really think they could remove the ducted, or even split system, and take it with them?

Tell 'em they're dreaming.

 

[jaycee]

Must be a difficult situation if the best advice is to sue everyone,

 

[The Fence]

Got nothing to do with advertising at all....let alone the fact that one advert said A/C and the other said none.....buyer beware.....ssheeesh...!

This is ridiculous...what's in the contract...?
That's what counts after they exchange contracts....for goodness sake...they are trying to get one up on you...

NSW contracts have a clause called "inclusions" which also details "exclusions" I think.....check it out.... there should not be this to'ing and fro'ing between conveyancers/solicitors...they are just milking it....time to get on with the sale/settlement....

Sorry but this smells of scullduggery to me.....
You need to check the contract with your legal aid and proceed with settlement.

 

[Mamaof3]

i don't think it specifies in the actual sales contract whether a/c is included/excluded....but i'll have a look at it tonight.

no we didn't have any involvement in the making of the brochures...all Agent's doing there.

 

[The Fence]

Well then A/C could mean anything...All's/Cool.....Ay/Cat.....At/Call.....Anything/Contract......any others...?

Storm in a teacup, they're having a lend IMHO....

Stay stong kim.....

 

[Peter_Tersteeg]

If you pointed out to the agent that there was no aircon when they published the inaccurate brochure, then perhaps they are responsible for it?

 

[Perp]

I am wondering now whether a contract for sale of a house with air-con actually mentions the air-con in the contract?

Unless it's portable, I agree, it's usually not mentioned; it's just treated as a fixture that stays with the property. So if the contract is to purchase property at 123 Smith St, and the house at that address doesn't have air-conditioning, then they're on shaky ground. (Unless of course the contract does specifically mention air-conditioning as being an inclusion or feature, but that's unlikely.)

The more I think about it, the more I think that this has nothing to do with you, kimanand. They have an unconditional contract to purchase a clearly identified property.

I do think they have a right to be p***ed off about the mention of a/c in the advertisement; they may have gone to 20 opens that day and used the brochures as a record of what was in each house, and used that as a basis for their decision to make an offer on your property. But I think the solution here is for them to settle with you - the more I think about it, the more I think they have no grounds for either voiding the contract or delaying settlement - and seek redress from the RE agent for the cost of installing air-conditioning.

I agree with PT_Bear; it's up to the agent to "make good", and if they're suggesting you install air-con at your expense due to their stuff-up, then they've got a hide. Has the agent seemed at all apologetic/embarrassed about this monumental ****-up they've created?

 

[Dazz]

they have a right to be p***ed off about the mention of a/c in the advertisement

Who knows, we may see a thread pop up on the forum in the next few days from the Purchaser titled - "Help, we are being stiffed", with recommendations to stick to yer guns and fight the nasty and deceiving Vendors all the way to the High Court.....over the principle of the matter of course.

they may have gone to 20 opens that day and used the brochures as a record of what was in each house, and used that as a basis for their decision to make an offer on your property.

Well, with that woefully low level of DD, they shouldn't expect a jot, IMHO.

 

[JoannaK]

to me, this seems to be a case of buyers remorse, and they're just using the aircon issue to get out of the contract.