Cash Out Clause

[Hari]

I recently found a property that I liked but it already had an offer on it. The Real Estate agent advised me that the current offer had a 3 working day cash out clause, but that they would not activate it until after I'd done my due diligence and was prepared to go unconditional. However once this was completed, from the time that the vendors solicitor was advised that I wanted to go unconditional, more than 3 working days passed before the holders of the first offer went unconditional. Is there anything that I can do about it?

Here is the time line of events:

1550 on 8th Sept. My solicitor advised the vendors solicitor that we would like to go unconditional and to activate clause 19.0 of the contract.
1800 on 8th Sept. The Real Estate agent called me advising that she had heard that I had accepted the terms of my contract and that I wanted clause 19.0 activated.
Sometime on the 8th or the morning of the 9th of September. The existing (first) agreement holders were served notice under the three day cash clause.
1040 on 9th September. My solicitor recieved a fax from the vendors solicitor, advising that the previous contract had been placed on notice in accordance with clause 19.0
1100 on 14th Setember. My solicitor was advised that the other purchasers have confirmed and that my agreement is now null and void.
According to clause 19.0, 'Upon the purchaser confirming conditions 17, 18, 19 the Vendor agrees to take all necessary steps to cancel or terminate the said Agreement and shall serve notice under the three (3) day cash clause provision of that agreement and the Vendor also agree not to grant any extension of the conditional date .....'
According to the above clause, I see no reason why the existing agreement holders were not notified either on the 8th of September or first thing on the 9th of September, that they had 3 working days to fulfil their agreement. Or perhaps they were?! If they had been notified as soon as possible, as according to Clause 19.0, then their contract would have had to have been completed on the 13th of September. It is my understanding that this was not the case.
I'd really appreciate any thoughts anyone else may have on this and what I should do next. Even though the contract was made through a Real Estate agent, she of course says it's out of here control, and that I need my solicitor to talk to the vendors solicitor, which of course means more expense. Surely the Real Estate agent should have some responsibility to ensure that the contract is adhered to?!


Looking forward to your comments.

Cheers,
Harry

[spaceman]

Those are some pretty fine hairs you're splitting if you ask me.

They had until the end of the 13th to confirm ..... since your lawyer was notified by 11:00 on 14th it is quite likely that they had confirmed by the end of the 13th.

It doesn't matter much what "your understanding" is are you able to prove they hadn't confirmed by COB on the 13th????....... even if you can prove that the paperwork hadn't been signed until 11:00 on the 14th I doubt that it would do you any good.......as it would easy to claim that a verbal agreement had been entered into and the delay (at most 2 business hours) was caused be some outside factors and shouldn't be a reason to void the contract

IMHO let it go and move on.

Cheers
Spaceman

[Hari]

Thanks Spaceman. Appreciate your feedback. So a deposit into the Real Estates trust account within 3 working days isn't necessary to confirm the other parties contract? All a good learning experience.

Cheers,
Harry

[Ivan McIntosh]

Whether a contract is unconditional is not dependent on whether a deposit has been paid (unless the contract says it is...that would however be unusual).

As an aside, if the deposit isn't paid, the standard contract allows the vendor to give an ultimatum to the purchaser that unless it is paid within 3 working days the vendor will cancel.

As with Spaceman, it seems likely that nothing untoward has occurred. I can feel how badly you wanted it.....but sometimes that's the way the cookie crumbles.

[TomW]

I would speak to your lawyer/s too see if you can file to have the contract become void and issue a caveat over the title to block any sale etc.