Buyer didn't pay deposit so I terminated contract now threatening to sue me

[Renoir]

implied auth to agent, who poss gave implied promises of the world to the buyer, who cashed a cheque for a deposit on a cancelled contract.............



Can I ask why the deposit was so large ?

While we are looking at implied things ................


is the agent and the buyer "local" or is there some Nigerian Style interstate scam going on here ?


ta

rolf

Hi Rolf, I didn't realise that that was considered a large deposit as this is the very first time that I have sold a property. That was just amount written on the contract already when the agent got me to sign it, so I didn't question the amount.

And yes the buyer is local and coincidentally lives very close to the agent and they are both nice italian boys......I suspect that they are actually in cohoots with each other

 

[Ausprop]

5. Join agent as a party to the proceedings.

only if you have a good case, else if you lose it's another bunch of fees you have to cough up for

 

[Ausprop]

And the rest.

with a reasonable lawyer it shouldn't go over the $100k mark, however if it goes to appeal then you have another run at it

 

[Renoir]

**UPDATE**

My friend who is an accountant and very experienced in property (much more than me) looked at the contract last night and said that is was never valid to begin with since the buyer listed on the contract is "Smith Family Trust" (not the real name of course) and it should have said "Joe Blow as Trustee of the Smith Family Trust"

He said that a trust is not a separate legal entity and as such cannot hold property or purchase property or any other assets so he believes that the contract was never even legally valid to begin with as only the actual trustees can enter into a contract to purchase property.

So if this is in fact the case, surely it doesn’t even matter that he won’t accept the termination of the contract or what he is claiming about being told it was okay that he didn’t pay the deposit if the contract was never actually valid to begin with?

Also for those saying if he chooses to pursue it as he is threatening to do so then I am facing huge legal bills ahead, I can't understand how he can even get anywhere, he breached all the rules, the rules are in place for a reason, why do we have any rules/laws regarding these contracts if no one has to abide by them.

 

[kathryn d]

They are bluffing.
Do nothing.
If your contract states deposit needed to be within xx days of signing the contact..obviously it wasn't. The receipt would state this, and the REA is most likely required to deposit within so many days of acceptance (3 days in Canada)

Take it off the market for awhile.

How many people on SS state about not being able to make buyers complete the sale, and it would cost too much to persue thru the courts.
Works both ways...unless you were selling the property at a serious discount.

 

[Terry_w]

It is true that a trust cannot enter a contract as it is not a legal person, it is the trustee's name that should be on the contract. But if the trustee has signed the contract then it could still be a binding contract - from that angle.

If you think the laws are simple, just have a look at the volume of legal cases each year. Take the supreme court for example (NSW) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/
Too many cases for me to count in Feb or March this year.

Although you may have done everything by the book, the purchaser may still have a case against you.

 

[Ausprop]

**UPDATE**

Also for those saying if he chooses to pursue it as he is threatening to do so then I am facing huge legal bills ahead, I can't understand how he can even get anywhere, he breached all the rules, the rules are in place for a reason, why do we have any rules/laws regarding these contracts if no one has to abide by them.

clearly you are about to experience the reality of the justice system in this country. for those outside of the court system there is a perception of law and order and a fair go. then there is the lawyer world where cheque books, dirty tactics and random judgements rule.

as for your accountant mate's free legal advice, I would take paid legal advice and get to the bottom of it. If someone proceeds against you they can be the biggest clowns in the world without a case but no one will know until a year or 2's time when the case is heard, by which time your credit history will be mud as you will be noted as a defendant in a law suit.

 

[Aaron_C]

This is a case of another unethical, lying agent going about his BS business and everyone involved left with the fallout. The guy sounds like a complete and utter tosser....I would also send a letter to the loser agent to pressure him to get the guy to back off as he can be partly (mostly) held responsible for the sorry saga.

Good advice evand. A not-so-nice letter from a solicitor is all it takes sometimes.

 

[Renoir]

Can anyone recommend a good property lawyer in Brisbane that has a real bite! If so can you please private message me. I'm just using my local Solicitor and I think I need to get someone else who is much more experienced in these sort of matters.

 

[sunshine]

PM sent Renoir

Good luck.

Sunshine

 

[evand]

Additional to what i stated above you should contact the agent and pressure him to get the guy to back off.

Say to the agent that because his lying created the situation he will be involved legally and it's in his interest (and his agency, principal etc) for that not to happen. As it could get a bit messy....yada yada.....put some heat on the agent. Use your imagination.

Contact the REI in QLD, contact the agency principal, contact the franchise head office (if it is a franchise). Contact everyone involved and put some heat on.

What most people don't realise is they have as much clout as any solicitor, RE agency, policeman etc....just use it. Get angry.

You can fix this if you approach it correctly. Talk softly but carry a big stick. And you can do it without big legal fees.

 

[Renoir]

Ok so here is today's latest. My solicitor sent a strongly worded letter to the agent threatening to sue him personally and the real estate company if this guy did put a caveat on the property.

He sent another letter to the buyer's solicitor basically stating that I was within my rights to terminate and that I would be suing him if he dared put a caveat on the property. Which I don't think he can do anyway because there is still 40 days before the contract even became unconditional.

I received a text last night from the agent saying the buyer still wanted the property and asking if I would do a new contract with him. My solicitor said to just tell him that it is not possible to do any new contract until the buyer gets his solicitor to send a letter confirming that they accept the termination and that they will not be putting a caveat over the property.

Reply from the real estate agent was the the buyer will instruct his solicitor to send that letter only once I have accepted and signed a new contract from him. I'm waiting to hear back from my Solicitor but that sounds very much like blackmail to me.

 

[Terry_w]

What price is the buyer now willing to pay? ie how much more.

 

[Renoir]

No mention of any price yet Terry. Only demands on timeframes, he wants yet another 90 days to get his finance etc together. I wouldn't be surprised if he actually came back with a lower price!

 

[Terry_w]

Factor is a few grand for the hassle and extra legal costs.

 

[Ed Barton]

Ok so here is today's latest. My solicitor sent a strongly worded letter to the agent threatening to sue him personally and the real estate company if this guy did put a caveat on the property.

He sent another letter to the buyer's solicitor basically stating that I was within my rights to terminate and that I would be suing him if he dared put a caveat on the property. Which I don't think he can do anyway because there is still 40 days before the contract even became unconditional.

I received a text last night from the agent saying the buyer still wanted the property and asking if I would do a new contract with him. My solicitor said to just tell him that it is not possible to do any new contract until the buyer gets his solicitor to send a letter confirming that they accept the termination and that they will not be putting a caveat over the property.

Reply from the real estate agent was the the buyer will instruct his solicitor to send that letter only once I have accepted and signed a new contract from him. I'm waiting to hear back from my Solicitor but that sounds very much like blackmail to me.

you are winning the bluff so far. if the vendor believed that there had been no breach why the new contract?

 

[Renoir]

you are winning the bluff so far. if the vendor believed that there had been no breach why the new contract?

Yes Ed my thoughts exactly, I thought when I got that text that it proves that he knows that he breached the terms and conditions by not paying the deposit.

Funny enough the agent has just today emailed me saying that he still has the guys $25000 deposit in his trust account so if we do a new contract there will not be any issues with the deposit this time around. As I mentioned earlier he didn't pay the deposit until the day after I terminated the contract and my solicitors have told him twice to refund any deposit......but he still hasn't because the buyer's solicitor has instructed him to keep the deposit in trust.

My solicitor is certain these guys are working in cahoots with each other, usually my agent can't string 2 words together and can't spell to save his life but now he is sending emails full of legal terms that are so obviously worded by a lawyer....no doubt the buyers lawyer!

 

[evand]

I was reading and i thought 'great' until i read the last a paragraph. I'd say no to any conditions put on the cancellation of the contract as my first priority.
You need to clear the original rubbish before anything can start again. And why is the agent still involved? If you havn't signed an agreement with him, i wouldn't even communicate to him.

But it sounds like you have the upper hand now, keep the pressure up. Don't give in.

Ok so here is today's latest. My solicitor sent a strongly worded letter to the agent threatening to sue him personally and the real estate company if this guy did put a caveat on the property.

He sent another letter to the buyer's solicitor basically stating that I was within my rights to terminate and that I would be suing him if he dared put a caveat on the property. Which I don't think he can do anyway because there is still 40 days before the contract even became unconditional.

I received a text last night from the agent saying the buyer still wanted the property and asking if I would do a new contract with him. My solicitor said to just tell him that it is not possible to do any new contract until the buyer gets his solicitor to send a letter confirming that they accept the termination and that they will not be putting a caveat over the property.

Reply from the real estate agent was the the buyer will instruct his solicitor to send that letter only once I have accepted and signed a new contract from him. I'm waiting to hear back from my Solicitor but that sounds very much like blackmail to me.

 

[NedKelly]

You could just sign a new contract that has the condition. "This contract superceeds all and any prior contracts between the vendor and buyer, whether written, oral and implied"

 

[cu@thetop]

My solicitor is certain these guys are working in cohoots with each other, usually my agent can't string 2 words together and can't spell to save his life but now he is sending emails full of legal terms that are so obviously worded by a lawyer....no doubt the buyers lawyer!

If the lawyer's firm name (from the CBD) starts with a C please PM me with details of the agent - I may have encountered these two before with a property at Hendra.
Usual tactic- caveat property (when seller realizes he's been undersold and cancels) start proceedings and let litigation fester. 5 years later seller chooses to sell again only to find he has to negotiate to remove caveat.