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  • Clauses and jargon.

    Hi all. Have finally got my clauses and investing glossary available on my site. All free to download etc.
    Find it all HERE when you can drag yourself away from PT for 5 minutes.

  • #2
    Hi Dean,

    The updated site looks super.
    Thank you for supplying clauses, S&P agreements and other educational info for your visitors and I to use.

    Great to see!

    Comment


    • #3
      Thanks Adam. The beauty of the net, it's so easy to get good info into peoples hands.

      Comment


      • #4
        Nice work Dean
        Love the clauses. Thank you

        Mike
        [email protected]

        Comment


        • #5
          Great resource for future reference, thanks!

          Can you explain what is the difference between a Cashout clause, and an Escape clause? Or in what situation you might use one instead of the other?

          Cashout
          If before the vendor has been notified that the condition(s) herein have been satisfied the vendor obtains an offer for the within property on terms acceptable to the vendor then the vendor may give the purchaser three working days' notice in writing advising the purchaser of such offer and may, at any time after the expiry of such notice and before receiving advice of the fulfillment of the said condition(s) or of the waiver thereof by the purchaser, by further notice in writing to the purchaser cancel this contract.

          Escape Clause:
          Sometimes required by Vendor before accepting conditional offer
          If before this agreement becomes unconditional the Vendor enters into another agreement which is either conditional, or is (delete reference to conditional agreement on instruction from Vendor) unconditional in all respects except for it being subject to non confirmation of this prior agreement, and which the Vendor in the Vendor’s judgment considers to be no less favourable, the Vendor may deliver the Purchaser or the Purchaser’s solicitor notice in writing requiring the Purchaser to confirm this agreement as being unconditional. The Purchaser shall have until 4.00 pm on the third working day after delivery of such notice to advise the Vendor by delivery of notice in writing to the Vendor or the Vendor’s solicitor that this agreement in unconditional, otherwise this agreement shall terminate. This condition is for the sole benefit on the Vendor.

          Comment


          • #6
            You should know me by now: I can’t resist a clause.

            Solicitors approval:
            This agreement is conditional on the Purchaser’s Solicitors’ approval in all respects.

            I thought these had now been discredited because they were unsafe for both purchaser and possibly for the purchaser’s lawyer.


            Tenants Notice:
            This agreement is conditional on the Tenants being given notice to leave prior to settlement date.

            What if settlement date was 42 days after the stated settlement date?
            Notice given as per clause to vacate in 42 days because the house is about to be sold. Vendor happy and goes unconditional. Tenant’s complain and take vendor/landlord to the TT saying they don’t want to go in 42 days. TT says notice was unlawful because at the time of issue the property had not sold unconditionally. TT overturns notice.

            Vendor thinks: I cannot give vacant possession on settlement, now only 10 days off, and so I am in a pickle.

            Vendor says: ahh! Notice was given so I did my part, There was nothing about the tenants’ having to go. Yippee, I am safe.

            Purchaser says: ahh, but you did not give notice because the TT says there was no notice so you did not fulfil the clause, hah!

            Purchaser says: but you still have to give vacant possession, it says it in 3.1 and you can’t so you will be in default.

            Vendor says: But that special clause does detail an existing tenancy, however scant, and as such under 3.1 I do not need to give vacant possession. Also as a special clause, it over-rides 3.1 which then became unenforceable.

            Purchaser says: Alright, so that clause cannot legally be fulfilled. That is fine. I will waive it and quickly confirm again before you change your mind and cancel the contract because I have not confirmed by the stated confirmation date. I do have that right. And also, I do believe you may be about to change your mind about selling and be about to indeed cancel the agreement, so I better be quick.

            Vendor says: You re right, I no longer wish to sell, but you cannot waive that clause without my consent because it is not for your sole benefit, and my consent I do not give.

            Vendor says: So, I never was able to give notice prior to confirmation unless it was at least 90 days after confirmation. Settlement was 42 days after confirmation. You never did confirm unconditional because that clause was not fulfilled and you could not then, or now, waive it. I have changed my mind about selling and am now cancelling the contract because of you non-confirmation of it.


            Vendor says: My lawyer says tamper with the ADLS’s standard document at your peril.

            Purchaser says: Where’s that lawyer of mine?

            Purchaser’s lawyer says: Where’s that Dean Leftus?

            Dean says: You’re the lawyer, don’t blame me.

            Purchaser’s lawyer sobs uncontrollably.

            Maybe I am wrong, but I enjoyed thinking it through. Maybe other’s will draw a different conclusion. The next clause below looks ripe for the picking too, but that one can wait for a rainy day.

            Tenants Notice to continue tenancy:
            This agreement is conditional on the existing tenants giving written notice that they will continue to tenant the property and sign the enclosed New Tenancy agreement and inspection report prior to ……………………………..(insert date).

            xris
            Last edited by xris; 18-08-2006, 11:01 PM.

            Comment


            • #7
              Hi Spurner. Effectively the same thing. Just trying to accommodate different jargon. Xris I don't have the energy to comment. Happy that you find my site worth visiting at least for entertainment :-)

              Comment


              • #8
                Thanks Dean, that's what I suspected, but didn't want to assume.

                Xris(resident PT scriptwriter?), I'm waiting with eager anticipation for your second installment. Please consider injecting some new characters to add drama into your Tenants Notice episode...

                Comment


                • #9
                  Perhaps the method used was not the best, although I do not think it is that bad.

                  Perhaps also my reasoning is flawed. I can even now see a couple of points I have overlooked. For example, if the purchaser's lawyer had confirmed that clause for the purchaser, then he or she may be in the firing line.

                  But, my main point definitely does stand, namely that we should all be very wary of making up out own clauses without reference to an experienced lawyer. There is little wrong with the standard agreement so why go out of your way to alter it willy-nilly.

                  Dean, I appreciate your implication that this is an irrelavence, but I do not think it is.

                  xris

                  PS/ A point I notice is that most of these clauses are fine and appear to be tried and tested and commonly used all over the place, whereas a few seem to have been made up to fit the new vogue of buying property so prevalent in some circles.

                  PPS/ I was not intending to knock what is possibly a useful and helpful site. I was trying to suggest that sometimes things may not be all that they appear and that on closer inspection superficially helpful and well meant comments can hide hidden dangers. Again, I may be wrong in my interpretation of these clauses but until someone shows me otherwise I prefer sticking with those interpretation.
                  Last edited by xris; 18-08-2006, 11:31 PM.

                  Comment


                  • #10
                    Hi Everyone,

                    Maybe I've missed something, but why would one employ the following condition:

                    Tenants Notice:
                    This agreement is conditional on the Tenants being given notice to leave prior to settlement date.


                    when one could rather leave the "vacant possession" portion of the "TENANCIES" section on page 1 of the ADLS form as it is? If things are done the "normal" way (i.e., by specifying vacant possession with settlement 42 or 43 days after unconditional date), then the agreement can go unco, notice is issued, and no story-a-la-xris.

                    So again, what's the point of the 'tenants notice" condition? (Am I missing something subtle?)

                    Paul.

                    P.S. I'm being inquisitive, not negative.

                    Comment


                    • #11
                      No Paul, you have not missed anything and you are perfectly correct.

                      You are in fact saying exactly the same as I said, namely that we should not tamper with the standard form unless we know what we are doing and unless there is very good reason to.

                      This clause provides a perfect example of this.

                      By trying to be smart and add in an extra clause to 'ram the point home' the purchaser may have unknowingly given up his rights regarding vacant possession, as given to him in the standard document.

                      xris

                      Comment


                      • #12
                        Absolutely no offence taken Xris. I'm just giving people tools to help. And my site says to check any clause with a solicitor if in any doubt.

                        Comment


                        • #13
                          Originally posted by pooomba View Post
                          Absolutely no offence taken Xris. I'm just giving people tools to help. And my site says to check any clause with a solicitor if in any doubt.
                          No offence taken. This is a bit of a hobby-horse of mine as you know anyway.

                          I said I might be wrong in my interpretation in the earlier post, and now in the clear morning light it looks as though I may have erred in detail, but not in the general point.

                          For what it is worth…


                          Vendor gives notice to vacate prior to confirmation.
                          Vendor then confirms that clause is fulfilled and the contract is unconditional.
                          Notice overturned.
                          Vendor cannot give vacant possession.
                          Vendor points finger at vendor’s lawyer for not realising the clause was faulty and unenforceable.
                          Vendor’s solicitor is liable, not the purchaser or the purchaser’s lawyer.

                          xris

                          Comment


                          • #14
                            Thank you Dean. A Valuable resource and generous of you to post.

                            Barry

                            Comment


                            • #15
                              Hi,

                              The phrase of the act, Sec 51.1.c is

                              Where the landlord has agreed to sell the premises and is required by that agreement to yield the premises to the purchaser with vacant possession, 42 days
                              So, the first ambiguity is the definition of 'has agreed' - is a signed contract an agreement, or is an unconditional contract an agreement.

                              The issue with Dean's clause is that, if you DON'T remember to request vacant possession on the front page, all bets are off. If you do, then you don't need to clause, as you are already covered (once you decide what an agreement is).

                              On a related point, remember that, as a landlord, you are obliged by the act to inform the tenants if the property is on the market.

                              cube
                              DFTBA

                              Comment

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