Backup contract - unilateral change by real estate agent

[kqt]

Howdy Anyone have an experience of this situation? I have a backup contract in place (as purchaser), signed by the vendor, with the unconditional date for the 1st purchaser to have met his conditions by today (15 Jan). The real estate agent rings me 6pm today and says she made a mistake with the dates and the 1st purchaser has in fact until 26 Jan. I have said my position is that I am now entitled to proceed with the contract. If I'd been told the correct date I wouldn't have bothered with the backup contract in the first place. Thoughts??

[Keys]

My thoughts are that you are entitled to proceed with the contract from midnight tonight.

Having thought a bit, maybe the contractual mistakes act may come into play........................

[kqt]

Thanks for response. I've just looked at Contractual Mistakes Act and it seems "Relief may be granted where mistake by one party is known to opposing party or is common or mutual" so wouldn't apply unless say I was aware of the mistake....

[Boostin]

What does the backup clause in your agreement say? I suspect that at this stage it will simply be an unfulfilled condition which has passed the date for satisfaction.

[kqt]

Thanks Boostin. I've not done a backup contract before but I suspect its fairly standard. It says my agreement is conditional upon the 1st purchaser not fulfilling his conditions by 15th Jan. Therefore, that condition has been met and my contract kicks in.

[Damap]

Don't waste your time here go talk to your lawyer.

[motivated]

And get your lawyer to put a caveat on the property FAST to protect your contractural rights

[Boostin]

If that is exactly what the condition says then yes it would appear to be satisfied.

A standard backup clause would usually provide that the vendor is required to end the first agreement as soon as they are able to which avoids the potential situation of two unconditional agreements.

[Wayne]

What is the outcome you are looking for?
They can't sell to you yet as they still have a conditional contract with the other purchaser.
You maybe able to argue for some compensation for the mucking around but they can't sell to you yet!

[motivated]

Yes they can sell to you--you have a contract with them--clearly they could have a big problem if the other party also confirms their contract to purchase

What is the outcome you are looking for?
They can't sell to you yet as they still have a conditional contract with the other purchaser.
You maybe able to argue for some compensation for the mucking around but they can't sell to you yet!

[Ivan McIntosh]

Thanks Boostin. I've not done a backup contract before but I suspect its fairly standard. It says my agreement is conditional upon the 1st purchaser not fulfilling his conditions by 15th Jan. Therefore, that condition has been met and my contract kicks in.

That's very dangerous wording. More normal would be for the owner to undertake not to grant extensions of time and cancel the first agreement as soon as they are able, with your contract conditional on a valid cancellation.

I wouldn't be so sure that the Contractual Mistakes Act wouldn't apply, but it's a court action to get a ruling and any sensible person wants to avoid court action if they can, so you have leverage here. If the first purchaser goes unconditional, the vendor is pretty screwed...my thoughts are that a court would uphold a transfer to the first purchaser and award you damages for loss - assuming you can show there is any, which can be difficult. So....better to work out a settlement with the owner, and caveating the title (if the first purchaser goes unconditional) is the way to put settlement pressure on, as the owner needs to settle with the first guys.

I presume you will be talking to your lawyer. There is no point going overboard - other than to say the unilateral change is not accepted - until you know whether the first purchaser has gone unconditional. You may have your own conditions to fulfill however....you might have to go through the motions of satisfying your own conditions to maintain your position.

[kqt]

Just in case anyone is interested in the legal advice on this and outcome. My lawyer said I had an enforceable contract and was entitled to proceed with it. I could have lodged a caveat if I'd wanted to incur the costs but the lawyer also said you wouldn't normally unless the agreement was unconditional.

In the meantime I had found another property so decided to roll over on this one in the interests of avoiding stress and legal costs. I will lay a complaint with the REAA, although I believe they are pretty toothless. Especially with the real estate firm advising me to waive my legal right and vary the contract.