UNFORSEEN CIRCUMSTANCE: The property contracts are signed but a death before settlement hinders the smooth process.
UNFORSEEN CIRCUMSTANCE: The property contracts are signed but a death before settlement hinders the smooth process. Ridofranz

Conveyancing comes to the crunch

GARY and Jill wish to sell their home and relocate closer to the children.

They own their property as joint tenants.

Paul wishes to purchase the property and after paying a 10 per cent deposit to the real estate agent, contracts are signed and exchanged with settlement to occur 28 days later.

Unfortunately, Gary dies before settlement and when Paul is advised of the death he reconsiders the purchase.

Rather , Paul decides he probably cannot afford the mortgage repayments and is not convinced the house is right for him.

Examining the contract, Paul discovers it contains a clause stating if either party dies, the other party can rescind the contract and in Paul's case have his deposit refunded.

He instructs his solicitor to serve a notice of rescission.

Since Gary's death, Jill has become increasingly eager to move closer to her children, making arrangements to move in with her son and has booked a removalist.

Jill is upset Paul has changed his mind and does not wish to place the property back on the market and suffer further delays so when settlement date passes she instructs her solicitor to serve a notice requiring Paul to proceed to settlement and pay the balance of the purchase price within 14 days.

Paul commences court action seeking the return of his deposit.

The court reviews the wording of the specific clause he relies upon and rules because the property was owned jointly there was no impediment to Jill as surviving owner, honouring the contract.

The court orders Jill is entitled to the deposit and Paul is to pay her legal costs.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.