Last year we bought a house in WA. During the final inspection the agent and owner were not able to show that the airconditioning was working and we agreed on paper to keep funds in trust for repairs or replacement. We had the unit professionally inspected and were told that repair of the unit would cost more than replacement. We had the unit replaced and lodged the receipt with our agent. Later we received a letter from the seller’s agent telling us that they did not agree to paying the funds held in trust because: the funds were for repair only, they did not have access to the property after settlement to fix the unit, they should have been contacted before replacing the unit. We do not agree with this because: it was never specified that the funds were for repair only, the seller never asked for access to the property, although we did not contact the seller prior to replacement the seller was aware of the defect and had already agreed to hold funds in trust. Thanks.
this is the first stop...
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You didn't actually ask a question. What is the status of the dispute? Are the monies still in trust? What was the cost of the new airconditioner? (I assume you're talking about a whole-house air conditioner)..
I'll look forward to hearing from you,
Jane Doe Deer
Thank you for replying. At the moment the monies are still in trust as the seller refuses to release them. Our settlement agent, who forwarded us the seller's refusal letter, advised us to seek independent legal advice. Unsure about how to approach this I thought this website could be a good starting point.
The airconditioning unit is actually a wall mounted split system invertor and as such not a "whole house system". However, the unit is fairly powerful (~8kW) and capable of cooling / heating most of the house. It is also the only airconditioning unit in the house.
The monies in trust amount to $1500. Replacement of the orginal and defective unit with a similar model (same brand and similar specification) would have cost approximately $2600 (excluding labour). As first home buyers we chose a cheaper replacement system which cost us a total of $2200 ($1600 for the unit + $500 for the installation + $100 to get the original unit inspected).
In the end we are still out-of-pocket but think it is only fair for the seller to release the $1500, especially as they agreed to keep it in trust to start with.
Thank you for your help
Welcome to Washington! I hope you enjoy it as much as I do! When I had my house built, I installed a whole-house air conditioning system. It's great!
I don't understand why the seller even has to get involved with releasing the money. It seems that the purpose of having an agreement and putting the money into trust should bypass the seller's participation.
But if that's how your agreement is written, that's how it's written.
I would start by writing a letter providing a deadline for releasing the money, such as 5:00 pm on October X, 2008, and threatening court action should the funds not be released to you by that date. If you're in the US, send the letter by certified mail, return receipt requested, and keep copies of everything, of course. If you're still in Australia, please use whatever type of mail that will give you proof that the recipient received the letter. It costs about $5.25 in the US to mail a letter like this. If it's ridiculously expensive from Australia, perhaps you can mail the letter in an addressed envelope to a friend here, and ask him or her to mail it for you.
If you do not receive the money by the date you demand, your next step is court. It'd be chancey hiring an attorney. Your hourly costs would be $150 - $300 per hour, depending on the county. Although attorneys often win attorney fees and costs and interest, there's no guarantee. In other words, the attorney fees are going to probably cost as much as what you are owed, with no guarantee that you'll also win back what you paid the attorney.
This leaves you with the option of Small Claims Court. http://www.courts.wa.gov/newsinfo/resources/?altMenu=smal&fa=newsinfo_jury.scc
If you file in Small Claims Court, be sure to ask for interest on the money, the cost of filing the case, and the cost of service of process (serving the defendant with the summons and complaint).
The good news is that there's a six year statute of limitations on contracts cases, so you need not feel rushed if you're currently in Australia.
I know attorneys who practice in this area in three counties: Clark, King (where Seattle is located), and Pierce (where Tacoma is located). If you decide to use an attorney, please write back and I can send you names.
I'd be happy to answer follow-up questions.
Before giving me poor feedback, write to me. "Bonus" = "tip"
Next time, ask for "Jane Doe Deer."
I wish you the best. You'll be ok. Be prepared for the worst, and you're always prepared for the best.
Atty. 24+ years; Plain English explanations of Landlord/Tenant & Purchase/Sale
Thanks for your reply. We are not in Washington, I guess the WA (in this case Western Australia) confuses things a bit. We'll take your advice and will write a 'nice' letter. After that I guess it will be the small claims court...
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