Anyone here in the legal game?

AndrewT · Post by **AndrewT** » Thu Feb 03, 2011 3:05 pm

Looks like I need a threatening letter written, don't mind paying if it's a cheap price

We recently purchased a 6.5acre block of land. The advertisement said "Includes fencing to all boundaries".
We noticed while inspecting the block before purchase that quite a large section of fencing at the rear boundary is completely missing.
When putting an offer down on the block we mentioned this to the real estate agent and they said "yeah no problem, that should be done as per the advertisement. Put a note on the contract here." So we did. The contract has a note at the bottom saying "rear fencing to be erected as per advertisement upon settlement". This was signed by us and also by the vendor the real estate agent is acting on behalf of.

Anyways, settlement was fast approaching. The real estate agent asked us to let them know if the fencing still isn't done, we told them it hadn't (after inspecting the block again).
Settlement went through - on the same day I went to have a look at the block, still no fencing. I immediately let the real estate agent know.

Anyways - we've been chasing this for months now. The real estate agent told us that the vendor really has no sense of urgency for getting it done now seeing as the contract says "upon settlement" and settlement has now passed, so they have no incentive to do it. They also said we need to just deal with our settlement agent for it, who will deal with the vendor's settlement agent.

So our settlement agent has just spent the last month or so inquiring with the vendor's settlement agent as to when the fencing will be done. They have had absolutely zero response. No response to any of the emails, and no return phonecalls from multiple messages left with their office.
Our settlement agent then contacted the real estate agent to ask them if they could try contacting the Vendor about it.
The real estate agent told us "sorry but we're having the same problem, they won't respond".

I call bull-sh_t here. Surely the multiple blocks still forsale on behalf of this vendor, and probably several other settlements in progress they would have an on-going line of dialog with the vendor and could simple ask them about this. Also if there wasn't any response to emails, how about phone calls? How about visiting their office?

Our settlement agent has told us that basically our only option now is to get a solicitor to write a threatening letter. We aren't too keen on spending money to resolve this problem but I suppose if it's the only way then we'll have to.

I've phoned a few fencing places for estimates just out of interest, and the job is worth about 2 grand.

So, is anyone here in the legal game? Want to write me a very strongly worded letter?

I can provide a timeline and copies of all the emails etc.

cheers!

H-top · Post by **H-top** » Thu Feb 03, 2011 3:17 pm

Hope all goes well mate, sounds like a crappy situation.

And I hope you are putting a circuit
on that land

niterida · Post by **niterida** » Thu Feb 03, 2011 5:52 pm

I hate to say this but you have agreed to take the land as is by settling. You should have with held settlement until the fence was completed or final payment amount adjusted to reflect the $2k.
The old owners are now under no obligation to erect that fencing.
Now I am not a lawyer but have been through lots of settlements and I am fairly sure that is where you stand.
And even if you could get it out of them it would cost you more than the $2k.

AndrewT · Post by **AndrewT** » Thu Feb 03, 2011 7:01 pm

Yeah that's true enough I guess.
But I thought I'd have at least something to stand on given these facts;

- The advert clearly says "includes fencing to all boundaries". Normally when you buy something and it is not as advertised, you have reasonable recourse.
- The real estate agent advised us the fencing will be done if we specify it in the contract. We did that.
- The note in the contract says "rear fencing to be erected as per advertisement upon settlement" and was signed by the vendor. Seeing as part of the contract was never done, surely they have a case to answer!

It is a bugger of a situation.
I'm sure I can erect some basic rural fencing myself for probably just a few hundred bucks in materials, but my time these days is what is valuable and I can't afford it.

Post by **TOONGA** » Thu Feb 03, 2011 7:29 pm

take it to the fair trade tribunal (if it still exists) or to the ombudsman

I really hope it wasn't down this way as there is a big stink at one of the developments, due to the vendors not meeting deadlines and contracted fencing agreements.

TOONGA

vincentvega · Post by **vincentvega** » Thu Feb 03, 2011 10:02 pm

Mate you really should be having words with your lawyer about this. They should never have let you sign a contract worded like this. As I read it you probably dont have a foot to stand on.

The contract should have read that fencing is to be erected prior to settlement, else the contract price will be reduced by $2000 or whatever you think it will cost.

Don't trust real estate agents. EVER. And dont take legal advice from anyone but your lawyer. The sellers lawyer has probably advised the seller to forget about it. They would have seen this one coming a mile away

niterida · Post by **niterida** » Thu Feb 03, 2011 10:07 pm

At least you didn't get stung like I did with that stupid 3 month clause for new developments that is in every REIWA contract.

I bought a block from a guy doing a private subdivision. 3 yrs later - yes 3 years - he decides it is all too hard to keep jumping the hurdles to get the subdivision approved so he sells the whole lot to another developer. So now my contract is null and void because he didn't complete the subdivision within 3 months. The new developer doesn't honour the contracts and doesn't even give us first choice of new blocks our discounted price or anything - and get this - the new developer gets it all approved within months of buying it.

Now my argument was that the 3 month clause was waived by him continuing to proceeed with the development and keep us stringing along for another 3 years but apparently not.

Now I got my deposit back so I didn't actually lose any money - but in the 4 yrs since I 'bought' it until the dust settled (I tried to take him to court - cost me $10,000 in lawyers fees and we never even got close to going to court or anything) the price of land where this block was had skyrocketed (partly because there was no land available) so I could no longer afford to buy there. Lost about $200,000 in 'equity' if you like.

And on top of all this I found out that the original guy I bought from bought the whole plot for $400,000 a year before and sold it for $4,500,000 - so he made $4 MILLION dollars in 4 years and didn't give one stuff about the 2 or 3 people who he screwed over.

Subyroo · Post by **Subyroo** » Fri Feb 04, 2011 9:41 am

AndrewT wrote:Looks like I need a threatening letter written, don't mind paying if it's a cheap price

We recently purchased a 6.5acre block of land. The advertisement said "Includes fencing to all boundaries".
We noticed while inspecting the block before purchase that quite a large section of fencing at the rear boundary is completely missing.
When putting an offer down on the block we mentioned this to the real estate agent and they said "yeah no problem, that should be done as per the advertisement. Put a note on the contract here." So we did. The contract has a note at the bottom saying "rear fencing to be erected as per advertisement upon settlement". This was signed by us and also by the vendor the real estate agent is acting on behalf of.

Anyways, settlement was fast approaching. The real estate agent asked us to let them know if the fencing still isn't done, we told them it hadn't (after inspecting the block again).
Settlement went through - on the same day I went to have a look at the block, still no fencing. I immediately let the real estate agent know.

Anyways - we've been chasing this for months now. The real estate agent told us that the vendor really has no sense of urgency for getting it done now seeing as the contract says "upon settlement" and settlement has now passed, so they have no incentive to do it. They also said we need to just deal with our settlement agent for it, who will deal with the vendor's settlement agent.

So our settlement agent has just spent the last month or so inquiring with the vendor's settlement agent as to when the fencing will be done. They have had absolutely zero response. No response to any of the emails, and no return phonecalls from multiple messages left with their office.
Our settlement agent then contacted the real estate agent to ask them if they could try contacting the Vendor about it.
The real estate agent told us "sorry but we're having the same problem, they won't respond".

I call bull-sh_t here. Surely the multiple blocks still forsale on behalf of this vendor, and probably several other settlements in progress they would have an on-going line of dialog with the vendor and could simple ask them about this. Also if there wasn't any response to emails, how about phone calls? How about visiting their office?

Our settlement agent has told us that basically our only option now is to get a solicitor to write a threatening letter. We aren't too keen on spending money to resolve this problem but I suppose if it's the only way then we'll have to.

I've phoned a few fencing places for estimates just out of interest, and the job is worth about 2 grand.

So, is anyone here in the legal game? Want to write me a very strongly worded letter?
I can provide a timeline and copies of all the emails etc.

cheers!

I'm no legal eagle but IMO your Contract should have read something like:

"Sale is subject to fencing at the rear of Property (insert property title) being completed prior to settlement date, should said fencing not be erected by settlement date the following amount (insert quoted price) is to be deducted from the purchase price to cover said erection".

Just don't waste good money chasing the bad, cut your losses and get it done yourself, legal eagles will easily chew up $2000.00 and not bat an eyelid.

AndrewT · Post by **AndrewT** » Fri Feb 04, 2011 10:27 am

Yeah, my mistake for letting the damn realestate agent word it!

I'm not planning on spending anything on legal costs, maybe a carton if somebody wants to write me an official looking letter, but yeah, I'm prepared to cut our losses and take a day or two off work to do it myself I guess. Just want to make sure I try all avenues I can to get it out of them first.

Yesterday I sent a strongly worded email to the realestate agent and basically made two points;
1 - I find it very hard to believe that they cannot contact the vendor about this as they would no doubt have a very frequent dialog with them regarding other settlements (still lots of blocks for sale etc).
2 - I said to them "Our only option now seems to be to bring in a solicitor - surely this isn't necessary!".

So I've threatened them with possibly sending a threatening letter

At the very least I would like some kind of response out of them. After months and many many followups from myself and our settlement agent, we have had NO response - absolutely nothing. Even if they come back and just say it isn't happening, that's better than nothing!

Maybe I should call Dennis Denuto because the damn vibe is on our side that's for sure.

At any rate I'm looking forward to my shiny new 6x9 wacky workshop in about a year's time when the house is built. Might have to get myself a Brumby too - a ute will come in handy for carting firewood around, stuff like that.

d_generate · Post by **d_generate** » Fri Feb 04, 2011 6:12 pm

I think the biggest problem you have is you must have done the equivalent of a final inspection & signed off, imagine you are selling your house and during the initial inspection they find the bore pump is buggered so it's marked on the papers like you did.

Before hand over there is always a final inspection and it's up to the buyer to make sure you've fixed the pump, if you've been a bit slack and haven't repaired it & they didn't check to see if it was working and signed off then as the old saying goes...tough titties for them.

Had they found it wasn't working then the settlement agent would have been notified by the agent and enough funds would have been witheld to cover repairs. I think you might be in the tough titties bracket but I hope you can resolve it in your favour.

dibs · Post by **dibs** » Fri Feb 04, 2011 7:57 pm

somewere in there i think its called false advertising .imo go see an ombudsman or even your local court house . get legal advise

dibs