Real estate contract disputes are an ever-present feature of Queensland’s property market. Some disputes arise from genuine grievances as to what the contract intended but many occur because of a change of mind or change in market conditions after contract signing.
Buyers or sellers wishing to enforce transactions must be prepared to face sustained and novel contentions. Those that seek an escape route must be armed with all available arguments of which there are usually many.
Disputes can arise from settlement delays, compliance issues, outgoings adjustments, interest calculations and due diligence determination.
Selling and buying off-the-plan always carries the risk that the property will not live up to value expectations come settlement time.
The management of the inevitable small proportion of contract terminations at the time contracts are made, they are intended to be in forcible in any project requires experience and knowledge. Understanding contract sensitivity demands technical excellence.
Marketing of Real Estate is a “service” to which the Australian Consumer Law applies. Allegations of this type must be strictly proved, preferably from statements in writing. A vague recollection of conversations will usually be insufficient to make out this type of claim. Such claims will be carefully scrutinised and fail if they lack consistency or are poorly prepared.
On the other hand, a well prepared claim bases on sound facts supported by consistent accounts of what was said and done with all available emails and other communication will have good prospects of success.
At the time contracts are made, they are intended to be completed according to their terms.
Buyers who wish to terminate a real estate contract for a house, unit or vacant land – for example by reason of a downturn in the market for the lack of finance available to allow a buyer to complete the purchase – need to be sure of their grounds. enlist an experienced real estate lawyer to investigate termination opportunities.
Seller’s damages for Buyer’s default
A Seller has several options in the event of a buyer default including compelling the buyer to settle by way of an action for “specific performance” or to sue for the resale loss.
A buyer default may occur if it fails to settle when required or wrongly attempts to terminate the contract.
The sellers damages include the differential between the contract price and the value of the property as at the date of contract termination, interest, marketing fees, legal expenses, agency commission and any other losses.
Unless sale contracts are prepared by competent real estate lawyers – and even on many occasions when they are – there can be differences of opinion as to exactly what a particular contract provision is intended to provide. The buyer contends that a contract was has a particular meaning while the seller asserts the opposite.
If this situation arises, the parties need the best advice as to their positions to be able to make an informed decision about how to resolve the dispute, hopefully well before the matter comes before a court.
Delay in payment of deposit
Buyers are required to perform their obligations according to the time specified in the contract. This includes the date for payment of a deposit and any other monies including the purchase price.
Failure to pay the deposit on the due date will usually afford the seller an opportunity to terminate the contract.
In some cases, the buyer will be able to continue with the contract notwithstanding the late payment, if the seller has not notified that it terminates the contract as a result of the late payment.
A buyer or a seller may see the need to terminate a house or unit contract because of unforeseen events that cause substantial damage occurring after the contract is signed and before settlement for example by storms or flood prior to the settlement date.
Can you terminate an off-the-plan disputes contract?
Legal avenues can always be explored to support valid contract termination. These include issues relating to misleading and deceptive conduct or “unfair terms” that might arise from nondisclosure or the relationship between a marketer or financial planner and the developer.
A valid termination might also arise from the poor quality of the developer’s contract documentation, changes occurring to the project and the unit layout etc since signing up for the buy and an event that adversely affects the developer’s title.
Failure to communicate
If a seller does not provide an adequate disclosure statement in a specified manner, a buyer has the right to terminate an off-plan contract within certain parameters and certain prescribed time periods.
Call our off-the-plan disputes team to answer your contract queries on 1300 590 613 or simply fill in the request form and we will respond promptly to you.