Can I Cancel Property Purchase Because Of Settlement Being Delayed ?

dodgybrothers on 15/01/2016 - 10:32
Last edited 15/01/2016 - 10:56 by 1 other user

hi all

so i have bought a property (in Victoria) in Oct 15 and settlement date was 07/01/16; but for some reason settlement was delayed from vendor side - later i learned it was due to bank was not releasing some documents.

My conveyance has sent so many emails and phone calls regarding settlement date, and update whats happening but they did not reply any of them until yesterday - mentioned bank has issue documents and they will call on Monday,18th to discuss about new settlement date.

i'm living in rental property and due to delay in i had to stay there one more month, and had pay $330 for property adverting cost to my rental agency as i had already given a notice to vacate and supposed to move out yesterday but apparently that didn't happen; and they did advertise property on internet.

and during our final inspection we had noticed number of issues , ie house was not clean properly, especially kitchen where previous tenant left whole kitchen really oily and sticky, and they left lots of rubbish in backyard which includes 3 mattresses and other stuff, water tap was competently broken in one room, and there was a big hole in a wall in garage, when we inspected property first time, before signing contract these things were ok, but after final inspection when we raised these issues they said its not their fault as they already done their final inspection and property was cleaned and not damaged and they are not ready to pay any cost to fix those issue.

The tenant already moved out and they have already got their bond back - learned from my conveyance.

now we are seriously considering to cancel the contract due to all these issue. my conveyance has already issued rescission notice on 13/01/16 ;now they have 14 days to settle property, it looks like they have got their paper ready now but still not sure when settlement happen,

is there any way i can back off from the contract. ?

any suggestion ?

thank you

Poll Options expired

  • 2
    Yes, i can cancel the contract.
  • 22
    No, i cannot.
Financial

Comments

  • superbird on 15/01/2016 - 10:34

    which state are you in?

  • JimB on 15/01/2016 - 10:44
    +1

    Are you claiming compensation for delayed settlement?

    Tell your solicitor to tell the agent and vendor to clean up the mattresses.

    You will still have to settle.

    You need to prove that there was no hole in the garage when you signed the contract.

    Don't get too emotional, just call up or wait for council hard waste collection to get rid of the mattresses. You'll forget about it in a few years time.

    Finally, have you spoken to your conveyancer about this?

    Conveyancers are exactly like solicitors except when you have issues! ;)

    • dodgybrothers on 15/01/2016 - 10:53

      thanks JB1
      yes my conveyance has already sent an email regarding compensation but they are not responding; in last week they only replied once - yesterday.

      both side conveyance aware of all the issues we have raised so far.

      • JimB on 15/01/2016 - 11:11
        +2

        Your conveyancer needs to call them up and chase up the vendors and their solicitor.

        That's what you pay them for.

        An email isn't sufficient.

        • dodgybrothers on 15/01/2016 - 11:54

          i have spoken to vendor's conveyance but they said they keep trying to contact vendor but he was not responding.

    • HeWhoKnows on 16/01/2016 - 08:45
      -3

      JB1 "Are you claiming compensation for delayed settlement?"
      Sorry but this is the WRONG question and is totally inappropriate. You don't know the terms of the contract. You don't know if there are any clauses that state such a claim can be made my the purchaser for delayed settlement and its very rare that a vendor would agree to such a clause anyway.
      Rest of your response is correct.

      • Ayanami on 16/01/2016 - 10:55
        +3

        Settle down. In WA it's a standard term that settlement delayed by more than 3 dsys entitles non defaulting party to liquidated damages by way of daily interest. It'd be very rare for this to be excluded. I'd anticipate that it'd be similar in other states.

  • chetsme on 15/01/2016 - 10:48

    I had very similar issues and ended up going with settlement.

  • cintamami on 15/01/2016 - 11:33
    +3

    in WA, unless approved by both sides, late settlements by 3 days will result in the party whose at fault to start paying penalties. Could you look whether this apply in VIC?

    • [Deactivated] on 15/01/2016 - 11:39

      I believe penalties apply in Victoria but I don't know the details.

      • dodgybrothers on 15/01/2016 - 11:53
        +1

        i have read somewhere on gov site that vendor can delay settlement upto 14 days, and buyer cannot charge any penalty , contrary if its buyer's fault than vendor can charge penalty from the day one

  • wanga1983 on 15/01/2016 - 12:18
    +1

    It should be covered in your purchase contract - what does that say?

    • dodgybrothers on 15/01/2016 - 13:19

      there is no special condition in contract unfortunately.

  • oscargamer on 15/01/2016 - 13:03
    +1

    ask your conveyancer, not us

    • dodgybrothers on 15/01/2016 - 13:24

      thanks for comment, but if you read the post again, i'm already in contact with both side conveyancer; just exploring more ideas/suggestions with wider community, where there is a slight chance someone may have gone through similar situation like this and have something to say… but again 'if you have nothing nice to say, say nothing at all'

      • abh_gup on 16/01/2016 - 00:26
        +3

        ozbargain ain't the finest place for things that need professional assistance about something more grave in $$$ terms. But well, it sometimes helps!

      • HeWhoKnows on 16/01/2016 - 08:50

        oscargamer is totally correct. they posted a short,direct to the point response. It is the correct response. There is nothing else that can be said here. Especially nothing "nice". OMG you have absolutely no idea. Do you???? Now would you like me to send you some flowers?

  • CLoSeR on 15/01/2016 - 13:40
    +1

    Penalty interest for delayed settlement usually only applies if the purchaser is not able to settle on agreed date, unfortunately if the vendor is delaying settlement penalty interest may be out of the question.

    https://www.lawyersconveyancing.com.au/encyclopaedia/penalty…

    Speak to a solictor, but really you probably want to work through the issues with the vendor so you can settle on the property asap.

  • mattow on 15/01/2016 - 14:23

    You can only terminate the contract once the 14-day period specified in the notice to complete (rescission notice) has passed - 27th January. If you do end the contract before this date, you are unlawfully breaking the contract - so wait until that period has ended first.

    You are also entitled to any damages you incurred as a result of this delay - that means the additional rent you paid and the cost of cleaning up the house to the extent that it was different from then you inspected BEFORE signing the contract.

    TL:DR
    - Don't terminate the contract until the 14 days is over, or you will be unlawfully breaking the contract
    - Claim compensation for the additional expenses you incurred

    Hope this helps!

    • dodgybrothers on 15/01/2016 - 15:29

      thanks mattow…. i believe this is the only option i have !

    • HeWhoKnows on 16/01/2016 - 08:56

      Dangerous advice given you have not read the contract!!!! Both the purchaser and the vendor are bound by the terms of the contract. Correct answer is to refer to the contract and speak to your solicitor. Any terms on which the purchaser may rescind the contract or claim damages will be spelled out in the contract. You are not in a position to make that call.

  • abh_gup on 16/01/2016 - 00:25

    Property lawyer! asap.

  • RojoMojo on 16/01/2016 - 08:37
    +1

    It will be in your documentation
    Late settlement is nothing new, in fact it seems to happen every time in my experience.
    Once i was hit for fees because the Bank stuffed around
    Another time i hit the buyer with fees because he was late.

    • HeWhoKnows on 16/01/2016 - 08:59

      "It will be in your documentation" is Absolutely correct!
      The fact you were hit with fees or hit the buyer with fess was down to what was written and signed for in the the contract.

  • HeWhoKnows on 16/01/2016 - 08:40

    Well firstly your agent has no right to charge you an advertising fee unless you are ending a fixed term lease early. You can change your mind and not move out of your rented premises at any time. Even on the last day. That is your right as a tenant…at least in NSW. Secondly what you can and cant do about your property purchase including what damages you can claim are set out in the contract. So all depends on what clauses your conveyancing solicitor asked to be included in the contract before you signed it. The vendor is within wholly their right to delay settlement. So you need to be speaking to your solicitor. This forum is not the appropriate place to ask for such advice and nobody here is qualified to respond accordingly.

  • dodgybrothers on 21/01/2016 - 09:06
    +2

    thanks all for your comments/suggestions !

    end up settling contract, vendor has reimbursed 2k for delayed settlement

    • ykwon10 on 21/01/2016 - 09:07
      +1

      congrats! good outcome.

      now enjoy your newly bought house!

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