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Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14359
Experience:  I did my law degree at the University of Queensland
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Hello Australian Law 1. Offer was made on my property.

Customer Question

Hello

Australian Law

1. Offer was made on my property. Purchaser had until 5/3 to get finance. Finance was not obtained. Agent was aware if not approved by 5/3 - sale was no longer to proceed.
2. Real Estate Agent sent me Termination-he dated it 6/3, but did not send it to me until 11/3. It was returned to him on 11/3.
3. Agent told me on 12/3 purchaser now had finance.

Question is - do I have to continue with this sale? - Why do I ask - because as the agent told me sale no longer proceeding, I got another real estate agent involved on 10/3. 11/3 the property was sold again for 40K more.

Please keep in mind, this is Australian Law, not U.S

I
Submitted: 1 year ago.
Category: Australia Law
Expert:  Brisbane-Lawyer replied 1 year ago.
I would like to see a copy of the Termination you were sent.

Also, did your Real Estate Agent send the Termination to the purchasers as well?

Did you give him instructions to?
Customer: replied 1 year ago.

The Termination is dated 6/3, (dated by the agent), he did not send it to me until 11/3-(have kept his email), I sent it straight back to him on the 11/3. He had a lot of difficulty finding the purchaser - the son, who lives in Australia, was overseas. He was not responding to text messages all week, nor was he responding to emails.


 


If you would like to see the Termination-I dont know how to send it unless I send it you via an email.


 


One other comment from me is that on the 2011 General Conditions 'Joint Form of General Conditions for the sale of Land - written by REIWA and given to people buying or selling, there is no comment that a termination needs to take 3 days to reach a client - which is what the Real Estate agent is now saying.

Customer: replied 1 year ago.

Sorry, and to answer did he send it to the purchasers - it was ME who told them to send it to every address they had on file. The purchasers lived overseas, the purchasers son who made the offer to start with, lives in WA, but he was overseas as well.


I am aware he did send the Termination to the finance Broker and he asked the finance Broker to send it to the purchasers. I dont know if this was done.

Expert:  Brisbane-Lawyer replied 1 year ago.
Please email it to:
XXX@XXXXXX.XXX

And ask them to forward it to Alex in the Australia law group. This can take up to 24 hours.

Also, do you know if the purchaser ever received the Termination? A copy of the contract would be helpful as well.
Customer: replied 1 year ago.

Hello


 


I have emailed you a copy of the Termination.


 


I do not know if the purchaser received the Termination - nor does the Real Estate Agent-as I said, it was sent to the Finance Broker, and he was asked to onforward to the purchaser. The son was out of Australia, but my Agent did have his address - it was me who said, send it there.


 


I do not know if the son is back in Australia, nor if it got to his Perth Address.


 


The property I had the offer on has expired- and I have received the Termination - all because as far as I was aware this property had not been sold.


 


Are you able to give me your thoughts for now.


 


Thanks


 


Treena

Customer: replied 1 year ago.

Alex,


 


I have just read, and reread the 2011 General Conditions. It states nothing about having to give mail to purchasers 3 days to get to them.


 


If I cant get out of this sale, how would I go suing the Real Estate Agent for NOT sending me the Termination when he was supposed to?


 


Treena

Expert:  Brisbane-Lawyer replied 1 year ago.
Unfortunately I will have to opt out of this question as it is better suited to a lawyer who specialises in property law.
Customer: replied 1 year ago.

Okay - thanks for trying though.....


 


Will I hear from them by tomorrow night??


 


Thanks again for everything.

Expert:  Brisbane-Lawyer replied 1 year ago.
I am willing to continue with your question if you like, as it seems no other lawyers have stepped in.

Let me know if you'd like to continue with me or not.
Customer: replied 1 year ago.

Yes please, I would love to know what I am supposed to do. The below was sent to someone who MAY assist, but your opinion is valuable..2nd opinions always are. Sorry for taking so long to respond-I went to work after sitting up trying to get answers last night.


 


Treena


 


 


 


Hello

More,,When I was told verbally the purchase of Hubert Street was over and done with by Paul from Harcourts, I got another Agent involved in the sale of Hubert Street. Please refer to Joe and Jay who I understand work close to you. Joe has spoken to you about this issue. I dont have a copy of that offer, I ask please that you get the dates from Joe. The 2nd purchaser was here on Sunday the 10th.

At no time did Paul write in his emails, nor tell me verbally that three days had to lapse for the Termination. I assumed Paul knew what he was doing sending it to me on the 11th, instead of the 6th, me signing and returning it to him. He is/was my Real Estate Agent. He would have had training of some description.

Paul had a lot of trouble getting in touch with Aaron, who is the son of the purchasers - he text him he emailed him but couldnt get in touch with him - he was trying to find out if the finance has been approved on the 5th.

When I got the Termination he told me he didnt know the purchasers address it was me who suggested he send the Termination to any address he held....everybody he had on his records.

I checked The General Conditions given to me at the sale does not state 3 days has to lapse so I assumed the Real Estate Agent must be correct, so again, I thought Paul knew what he was doing getting the Termination to me on the 11th. He had dated it the 6th, so I copied his date. I confirm I did SIGN it on the 11th.

To add something else about this timing, I sent an email to the settlement agent (below). One dated the 8th, one dated the 10th. As I have said, I thought the deal was over at 4p.m. on the 5/3.

Me then thinking the deal was over and done with I contacted another agent who thought he might have a buyer. He bought the people through on the 10th. I ask please that you speak to Joe about this offer and its dates.

I contacted REIWA today and they asked me if the Real Estate Agent had delayed sending me the Termination to extend the time as a just in case the purchaser got his finance. I cant answer that question.

I sent the below email to my settlement agent on 8/3, again believing what the Real Estate agent had told me was correct - the sale had fallen.

Hello Cathryn

My agent didnt hear from the buyer on Monday (like he was supposed to), then the buyer ceased responding to emails and text messages from both the broker and the agent-we do know he left Australia for Malaysia on Saturday and was still there Monday.

So,,,the sale has fallen through, and thus my buy has fallen through. I have told the agent selling Hope Ave all about this.


If I thought the sale was proceeding I wouldnt have written that to the settlement agent - copy held. The below email was sent to the Settlement agent on the 10th, again, as I was lead to believe by the Real Estate Agent that the deal was over I wouldnt have written that -copy held.


Hello Cathryn

As the purchasers of Hubert St are uncontactable, and their time ran out on Tuesday Hubert Street has not been sold.

My loan with the Bank was subject to me selling Hubert Street and that has not been done, the purchase of Hope Avenue will not be proceeding.

I apologise for any inconvenience I have caused you.

When/if Hubert Street is sold, I will definately be using you as a settlement agent - the best to deal with as far as I am concerned.

Regards

Treena Lewis


I contacted REIWA today and they asked me if the Real Estate Agent had delayed sending me the Termination to extend the time as a just in case he got his sale. I cant answer that question. They suggested legal assistance.

I had a phone call today from my settlement agent, which was responding to an email I sent questioning if Paul was correct with what he had told me. Cathryn's superior has told me they cannot advise, but they will leave any settlement on hold, until they get my instructions following advice from you.

I have spoken to the Department of Commerce- they are unable to assist.

I have continued to check who's right in this matter, and

Paul wrote to the buyers lawyer on the 12/3 (email copy sent to you) thanking him for the fax - but saying unfortunately this was due on Tuesday of last week and the contract was terminated in writing to the buyers and the buyers mortgage broker. From the sellers perspective the contract is at an end and such will not be proceeding to settlement. Again, this led me to believe the sale was over - why should I worry, he knew what he was saying - didnt he? He wouldnt write that if it wasnt correct. Consequently I was very comfortable that the deal was over and done with - I could go and resell, which is what I did.

If you need any further information to assist you, please contact me on my home number 9361 8133 or work 6258 5333. Whilst at work I dont have all the emails with me, but I should still be able to answer something.

Regards

Treena

Expert:  Brisbane-Lawyer replied 1 year ago.

Hi Treena

</ br>

Okay I will continue to assist if I can. If I am not mistaken, this is basically what happened so I can get it clear in my mind:

</ br>

(a) You engaged a real estate agent to sell your property;

(b) An offer to buy came in, subject to finance;

(c) Finance had not been approved by the time required in the contract;

(d) Your agent sent out a Termination to every address you had for the purchaser;

(e) You then engaged a new agent who obtained a new offer;

(f) The first buyer's finance then became approved;

(g) As a result you turned down the better second offer.

</ br>

Hopefully, that in a nutshell is what happened. Please confirm. I also find (d) to be very unusual. What sort of real estate agent doesn't have the address and contact details of a party who submits an offer?

Customer: replied 1 year ago.

Couple of things.


d, The agent failed to get me to sign the Termination on the 6th. He sent it to me on the 11th, it was emailed straight back to him. The agent wanted to release the deposit to the purchasers-I said no, I was not signing release until I got the deposit back on the property I had put the offer on.


The Finance was approved on the 12h.


 


g. The 2nd better offer was counter offered on. Those people have counter offered again. I am yet to sign that due to what has happened.


 


Please advise my direction.

Expert:  Brisbane-Lawyer replied 1 year ago.
I am going to need to see clause 21 of the General Conditions because we need to know if the Termination was properly served on the Buyer or not. If you can scan and attach that clause, or even the whole contract, it would be helpful.

Customer: replied 1 year ago.

Didnt I send that to you yesterday???

 

Yes I did - I have resent it to you.

 

Please treat this matter URGENTLY.

Expert:  Brisbane-Lawyer replied 1 year ago.
The only thing that came through was the Termination. But you can scan and attach it to your post to speed things up, it doesn't have to go through email.
Customer: replied 1 year ago.

The offer and Acceptance??

Expert:  Brisbane-Lawyer replied 1 year ago.
No, the General Conditions.
Customer: replied 1 year ago.


These are the General Conditions which is given in a foulder at sale/purchase.

Expert:  Brisbane-Lawyer replied 1 year ago.
Okay. I need to see clause 21 of the General Conditions in particular. Perhaps you could type it out for me, word for word?
Customer: replied 1 year ago.

Apologies - have been at work.


 


2011 General Conditions


JOINT FORM OF GENERAL CONDITIONS FOR THE SALE OF LAND


 


21. NOTICE


21.1 Requirement for Notice


A notice to be given under the Contract must be:


a. In writing and


b. in the English language and


c. signed by the Party giving it or that Party's Representative


 


The Termination was emailed to the Representative. It was then mailed...

Expert:  Brisbane-Lawyer replied 1 year ago.
Usually it dictates how the notice is to be given. But you have already confirmed that your representative gave notice once you signed it.

Basically the contract was terminated at that stage. So you don't have to proceed with this buyer even though they still want to and have now obtained finance.
Customer: replied 1 year ago.

 


I have been told constantly that I have to give 3 days notice to the buyer, though, in any legal documents I have found it does not state this.


 


I was advised at 4.55p.m. on the 11/3 that the Termination was emailed to the buyers representative (his son).


 


Please confirm that I do NOT have to give 3 days notice.


 


Thanks

Expert:  Brisbane-Lawyer replied 1 year ago.
So long as the General Conditions in the contract do not say that you have to given three days notice, then you don't.

If you're satisfied with the results of your question, then I'll ask you to please provide positive feedback so that I will get credit for the time spent on your question.

Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14359
Experience: I did my law degree at the University of Queensland
Brisbane-Lawyer and other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.

You have put in a great effort, but, on the General conditions it states:-


21.5 SERVICE WHEN NOTICE POSTED


A Notice which has been posted will be treated as served on the third Business day after the date on which the notice is posted.


 


The section of the NOTICE was only section21.1 that you were given, it did not include 21.2, 21.3, 21.4, 21.5, or 21.6.


 


Confirm that as 3 business days did not pass, I lose this house.


 


Thank you for everything.

Expert:  Brisbane-Lawyer replied 1 year ago.
I can't confirm that anymore. I thought you had reproduced the entire clause 21, but if 21.5 says that, then the Termination was only served on the third business day after your agent sent it.

This changes things quite considerably. I would still like to read the 2011 General Conditions if you can scan and attach them for me.
Customer: replied 1 year ago.

Expert:  Brisbane-Lawyer replied 1 year ago.
It didn't work unfortunately.

Please email it to:
XXX@XXXXXX.XXX

And ask them to forward it to Alex in the Australia law group. This can take up to 24 hours, but I will respond once I have received it.
Customer: replied 1 year ago.

I have emailed it and asked them to forward to your urgently.

Expert:  Brisbane-Lawyer replied 1 year ago.
Okay, I will let you know when it arrives.
Customer: replied 1 year ago.

I am hoping when you read this you have received the full agreement. The agent emailed the Termination to the buyer on the 11th. Surely if it was emailed that should be the end of it? Nobody posts things now-a-days.

Expert:  Brisbane-Lawyer replied 1 year ago.
Yes, I have. I need a couple hours or so to look it over though.
Expert:  Brisbane-Lawyer replied 1 year ago.

I am looking at it now.

Expert:  Brisbane-Lawyer replied 1 year ago.
After having looked at the General Conditions, I am still of the view that the contract was repudiated when your agent mailed the Termination to the Buyer, it isn't when the Buyer received the Termination or when the Termination was deemed to have been served (2 days later).



Customer: replied 1 year ago.

I was pleased to receive your opinion.


 


So despite what clause 21.5 says, Once it is signed, its Terminated.


 


Does this apply in Western Australia?

Expert:  Brisbane-Lawyer replied 1 year ago.
Once it is given to the Buyer it is terminated. And yes, my answer applies to WA. Contract law is for the most part the same across Australia.

I suspect your agent who delayed on this is upset as he wanted the sale to go through, but if the Buyers would try to sue you over this I think you would have a decent case to defend against their claim.

Customer: replied 1 year ago.

Refer to the below:-


1. it isn't when the Buyer received the Termination or when the Termination was deemed to have been served (2 days later).


2. Once it is given to the Buyer it is terminated


 


Your 1st comment from one message contradicts the 2nd.


 


The Agent had the Termination, what he did with it after that I dont know. He could have taken days to send it. On the 11th he did verbally tell me he has send it to the son Aaron via email, and also send it to the finance broker to onfoward to the sons parents.


 


 

Expert:  Brisbane-Lawyer replied 1 year ago.
If he didn't post or fax the Termination (which is what you would expect a competent real estate agent to do), then that changes things yet again.

What has been the real estate agent's position on this since he sent the Termination by email? Did he come back to you saying the Buyers still want to proceed and they now have finance?

I strongly recommend if you have the contact details for the seller that you try contacting them directly to see what their feelings on this are.

Customer: replied 1 year ago.

The agent had one email address, for the son, who was on the original offer. I am assuming he sent it there. He also emailed it to the purchasers (which ended up being the sons parents) address for him to onforward. I dont know what else he did.


 


I have been asking the Real Estate questions such as how and where he sent it but he is not responding to my emails.


 


The Real Estate agent told me the buyers on the 12th got their finance and now want to proceed.


 


I am not comfortable contacting the buyers as the agent has told me they want to proceed.


 

Expert:  Brisbane-Lawyer replied 1 year ago.
Well, if he emailed it, and the only contact detail of theirs he had was email (which sounds ridiculous), then the Termination would be considered served the next business day.

I recommend you terminate the services of this agent as he just doesn't seem on the ball here.

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