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LEgal issue deposit vendor won’t give us back deposit

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  • LEgal issue deposit vendor won’t give us back deposit

    Im needing inputs again please

    basically we have been past a sunset clause of 31-1-18 and now we have cancelled our contract.

    we have been advised by the solicitor that the vendors solicitor said part of the deposit was released to the agent as commission.

    we confirmed with the agent and he said no and they only get commission upon settlement, which never happened.

    our solicitor kept on insisting that we have not cancelled the contract since there is a dispute. But 3 days ago we were given a go ahead to offer in a new property which we are in the process of going unconditional.

    our solicitor is urging we dont go uncondiional because we are still in the contract which even a monkey can deduce that it has been cancelled. No house by sunset clause- cancelled contract.

    he gave us two options to get our deposit back- wait again for the house to complete (vendor suggested extension of sunset clause to 9 march 2018 but no assurance of completion and we have fallen in love with another property) and look for a barrister (i guess to sue the vendor?) i mean there is nothing to sue because its clear its a breach of contract and we only want or deposit back.

    this solicitor of oura sounds dodgy. It seems like he is getting aomething out of if we settle. It is not what we were hoping for and thought he would fight for our deposit.

    what are your 2c? Change solicitor? All our kiwisaver funds are with them and they might hold it from us. Excuses after excuses. We just want to move on.

  • #2
    Oh and the deposit is with ray white trust account

    Comment


    • #3
      Once you go unconditional the agent gets the commission. You might need a second opinion from another lawyer. Not all lawyers are created equal I am afraid. Some are very average, that's why they are stuck doing conveyancing.

      Comment


      • #4
        We have spoken with the agents and said they never gor the money. Since the sale and purchase agreement has a sunset clause, it remained conditional hence the depaoit money shouldn’t have been released. The previous solicitor is a total nutjob and said for us just to settle so there will be no problem. Settle in what? A house that’s half way built? Wait another month with no guarnatee of settlement? We have a 5 week old baby that is why we wanted to move in as quickly as possible given that this house should have been completed on august. We opt to cancel and found another house and now that is on the rocks as well because someone at the agency screwd up and we have to pay the price.

        why is it that hard working honest people always have to pay yhe heavy burden when someone screws up? Tjis has to change.

        Comment


        • #5
          Get yourself a good new lawyer. There is one who seems very good and sometimes posts on this forum called Ivan.

          In life surround yourself with advisers, lawyer, accountant and trades people who you admire and respect and you will find that your problems are sorted a lot easier.

          Be prepared to pay well for their services.

          Comment


          • #6
            It is highly possible/likely deposit could have been released. Although that should only have happened if you agreed in writing. I would go to REAA and your lawyer ASAP. You need to get to the facts.

            Comment


            • #7
              Make sure everything is in writing.

              If your lawyer says deposit was released, ask for written proof.
              If they can't produce proof and vendor's lawyer (not the agent) says it wasn't received, you've got a seriously dodgy lawyer on your hands.
              DFTBA

              Comment


              • #8
                Thank you for your inputs.

                we have changed lawyers and will disclose here who first lawyer was after all these have been sorted.
                See the agent said there was no commission released to him, and yet the agency insists that they have released our money.

                the new lawyers is in the ball with our case.

                Funny enough i asked the old lawyer to give me proof that they have released funds and he said “you can’t do that’

                my thought is that the idiotic lawyer was in cahoots with the vendor to get us to settle. Since day 1 (after the sunset clause) he wants us to keep waitkng and settle. I will complain to the law society since he acted not on our best interests.

                i am really nervous that our 20 years worth of savings and hard work might get lost somewhere....

                Comment


                • #9
                  Ask the agent that acted for you (salesperson) if they got paid..they will tell you surely. Then you know where the money is. I would be surprised if the depossit was released because the contract was not unconditional as it still had a condition to satisfy ie the sunset clause....

                  Comment


                  • #10
                    Originally posted by Clever Kiwi View Post
                    Ask the agent that acted for you (salesperson) if they got paid..they will tell you surely. Then you know where the money is. I would be surprised if the depossit was released because the contract was not unconditional as it still had a condition to satisfy ie the sunset clause....
                    Seith has already said
                    "We have spoken with the agents and said they never gor the money." (post #4)

                    Comment


                    • #11
                      What does the clause say verbatim. Then we an advise where you stand.

                      Comment


                      • #12
                        Caveat on the title. Now.
                        www.3888444.co.nz
                        Facebook Page

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                        • #13
                          The Sunset Clause at clause 30.0 of the Agreement appears to be clear in that if the Vendor is unable to settle the sale by 31 January 2018, you are entitled to cancel the Agreement and have the Deposit returned to you in full.

                          the thing is there is no title yet on the property...

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                          • #14
                            From our previous lawyer:

                            Upon receiving our notice of cancellation the vendor's solicitor requested for refund of deposit from Raywhite. Raywhite advises that as the agreement has been declared unconditional and that the vendor's solicitor signed the authority to release funds, the commission has been deducted therefore is unable to refund the same. For the record, we have never signed Deposit Release Authority to Raywhite to authorise release of deposit, we are not aware of the deposit released until 1 February 2018. We would not have authorised the release of deposit because this agreement remains subject to the issue of CCC.

                            Comment


                            • #15
                              It would seem that the contract was unconditional but still subject to the sunset clause.
                              The vendor has to refund the deposit - even if Raywhite no longer holds it.
                              After all - it is the vendors job to pay the agent not yours. It is generally just handy that the deposit can pay this.

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