Seller pulled out

logic

This has probably been asked a few times before

Went through the routine of getting the mortgage, anyway everything went ready, 10% deposit paid and contracts signed on my part and I was just waiting on him to sign. He then pulled out of the deal.

I am now out of pocket due to expensive surveyor fee and now solicitor fees etc. Is there anything I can do as I am out of pocket now by a few thousand and nothing to show for it?

sgarvan

logic wrote:

This has probably been asked a few times before

Went through the routine of getting the mortgage, anyway everything went ready, 10% deposit paid and contracts signed on my part and I was just waiting on him to sign. He then pulled out of the deal.

I am now out of pocket due to expensive surveyor fee and now solicitor fees etc. Is there anything I can do as I am out of pocket now by a few thousand and nothing to show for it?

as far as I know, no you cant. you can get your deposits back and thats about it.

The law is that any document or documents that contain the price, identify the property and the parties and any other particulars of the sale form a binding contract. How the Auctioneer and Solicitors then ensure that Contracts do not bind in error is by heading all correspondence 'subject to contract/contract denied' or similar wording before exchange - often there is a more comprehensive wording included. If this is contained in the sale agreement and all subsequent correspondence then the Vendor is not tied in. There is another area of law called 'part performance' which is where a contract can be enforced because there have been acts on both sides consistent with the performance of a contract. Tbh I don't think it arises in the facts you mention and I am sure your Solicitor has examined this possibility.

Out of curiosity, what are you being charged by the Solicitor? Can you not do a deal whereby you will give him the next purchase for a reduction now?

MorningStar

That's the risk. The should change the law so the seller at least provides an independent survey for all interested bidders

Sponge Bob

I think the survey costs can be sought (in full) if there was no haggling about the price after the survey , say the survey found a bit of damp .

If there was a haggle after the survey then no.

If the buyer was still prepared to pay the full price (before and after survey) the evidence is effectively that the seller never intended to sell and misrepresented themselves. Small claims court.

Sponge Bob

Sponge Bob wrote:

If the buyer was still prepared to pay the full price (before and after survey) the evidence is effectively that the seller never intended to sell and misrepresented themselves. Small claims court.

Or he got a better offer. Or the spouse said 'I like it here, let's not sell' and refused to give the consent necessary under the FHPA 1976. Or the child got sick etc. etc. Furthermore, the Vendor is under no obligation to pay for the Purchaser's survey - he has no contract or agreement with either the Purchaser or the Surveyor.

I can't see any such case working. The basic rule that contracts do not bind until they are exchanged pretty much underpins the law of contracts for property, if a case were successful afaik it would set a legal precedent in this country and throw the whole system in the air. A claim may have some 'nuisance value' but on the other hand if it affects the Vendors abaility to sell he may counterclaim for a significant amount, and if the Purchaser is unsuccessful the Vendor may get costs - though tbh dunno how that goes in the SCC.

Sponge Bob

Deleted User wrote:

the spouse said 'I like it here, let's not sell' and refused to give the consent necessary under the FHPA 1976.

In that case the case is against the spouse who did not consult t'other

As I said, the survey was conducted BECAUSE the seller SAID he/she was selling , and AFTER they had accepted an OFFER . They had no intention to sell or no clearance from their spouse to sell . Therefore they misrepresented and thats the case , not breach of contract . I cannot sell Mrs Sponges car , it s not my car innit !!!!

Your 'sick sprog scenario' may also be correct but that would require disclosure of sprogs medical history for the defence ...if any exists. If the condition were 'prior' such as asthma, the house was put on the market with an asthmatic sporg there already .

Either way I would have the fecker in the small claims court were I the jilted purchaser AND had I not tried to leverage a discount post survey ....thereby tarnishing my bona fides.

Misrepresentation is Misrepresentation.

logic

No one has even lived in the house yet. Its second hand though. I think he just pulled out as the value has seemed to have jumped. I reckon it will be back on the market now with a higher price tag. One thats out of my budget.

MorningStar

I think you forget that at any point they can pull out for what evr reason. If they give you a reason it doesn't really matter just assume they want more money. If it is out of your league so be it.

You can't except any money returned or paid by them.

I am suggesting to at least limit the amount of surveyors fees being paid their should be only one survey needed and it be paid by the seller. THis is how it is done in other countries.

Sponge Bob

Sponge Bob wrote:

Misrepresentation is Misrepresentation.

True, but only when it induces someone into an agreement - misrepresentation in the absence of agreement or a contract is of no relevance. And unfortunately for the purchaser here the Statute of Frauds 1796 is very clear that contracts for the sale of land need to be evidenced in writing. A more clearcut example would be if if I said to you 'my land is worth a million, but I'll sell it to you for a grand' and you say no, then you cannot sue me for misrepresentation if the land was only worth a grand because there is no contract. Here, in the absence of acts of part performance as noted above or documentation not covered by the 'subject to contract/contract denied' mantra, and though the Purchaser certainly wants an agreement, unfortunately for the OP there is none because of the operation of the Statute of Frauds...

Sponge Bob

Deleted User wrote:

True, but only when it induces someone into an agreement - misrepresentation in the absence of agreement or a contract is of no relevance.

But it did induce him into an agreement , with a surveyor no less

Small Claims Court costs €8 , I would see him there.

Sponge Bob

Sponge Bob wrote:

But it did induce him into an agreement , with a surveyor no less

Ah, but there is no privity between the Vendor and that agreement...

Anyway, I sound like an advocate for gazumping. For the hell of it logic, maybe try the SCC, but clarify the position regarding costs first.

MorningStar

Sponge Bob wrote:

But it did induce him into an agreement , with a surveyor no less

Small Claims Court costs €8 , I would see him there.

I think this is the problem with the ability of Irish people to be succesful when complaining. First off if there is no legitimate reason to complain don't complain secondly if there is, complain correctly. Small claims court for something that is understandable as part of process is a waste of everybodies time. To complain and get achievements you need to start from a point of knowledge and be reasonable.

Sponge Bob

MorningStar wrote:

I think this is the problem with the ability of Irish people to be succesful when complaining. First off if there is no legitimate reason to complain don't complain secondly if there is, complain correctly.

Misrepresentation at Common Law is

"Words or conduct of one party that misrepresent facts (e.g. "this car has never been in an accident" ) or conceal facts, or the failure of one party to disclose facts known to him/her, may induce the other to enter a contract based on incorrect assumptions. "

In this case the mispresentation of the sellers ability or willingness to sell at a given price caused logic to enter into a contract with a suryeyor after he met the asking price . Had the seller not represented a willingness to sell logic would not have contracted the surveyor to survey that which he would not have bought because it was not for sale.

Its a simple common law case for his surveyors fees and time spent thereupon to be paid back. My earlier caveats still apply of course. It costs €8 in the small claims court to take the case if the ****er will not pay up.

Its different of course in an auction where 10 people may conduct 10 separate surveys but only one can win at auction. They would not normally be entitled to their money back .

MorningStar

Sponge Bob wrote:

Its a simple common law case for his surveyors fees and time spent thereupon to be paid back. My earlier caveats still apply of course. It costs €8 in the small claims court to take the case if the ****er will not pay up.

No it is not. This is not a matter of opinion. It will be thrown out and it is a waste of time. If you don't know that it is understood the surveyors fee is a cost and risk when buying a house not my problem. Do you actually know anybody or case where somebody got their money this way or is it actual just opinion?

The same way a deposit on a house doesn't actually gaurentee the house. Common knowledge may tell you something else but it simply doesn't. If a product has a price label on it and you get to the check out and they sy it costs another price you are not entitled to the goods at the price on the label. People will say you are and they may have been sold at displayed price but there is no legal recourse if they decide not to in this country.

OP don't waste your time move on and don't stop looking and bidding untill you sign.

Sponge Bob

Sponge Bob wrote:

Misrepresentation at Common Law

But common law (and one might say common sense) does not apply per se as the area is covered by legislation. No signed contract, no deal, nothing binds the Vendor.

Sponge Bob

Deleted User wrote:

But common law (and one might say common sense) does not apply per se as the area is covered by legislation. No signed contract, no deal, nothing binds the Vendor.

What deal ? There is no contract exchanged on the house ?

This is only about surveyors fees incurred because a deal appeared possible . What precise bit Section ?? bit of legislation exempts the seller from common law misrepresentation again ??????

squire1

It is the buyers choice to have a survey done as it is not complsory. The seller has no input into this decision so why should seller pay for the surveyor if the deal falls through for whatever reason.

No case to be answered. Move on.

So I say let's both join the gym and you go out and buy runners and I then decide not to bother. Am I supposed to pay the sports shop?

So I say let's golf and you buy clubs and I then say I hate the people one finds on the golf course. Do I have to pay for your set?

Etc. etc.

There is no common law rule, merely the general rule of tough luck.

Or put another way, I put my house on the market and 10 people get 10 very expensive architects to do surveys for 2k a go. And the 11th person comes along and makes an offer I can't refuse. You honestly think I am liable to pay 20k to the frustrated bidders?

Sponge Bob, I appreciate your position, I appreciate the sense of it, and I feel sorry for the OP. But your argument has been tried again and again in case after case in Ireland and recently each time it has failed as long as there is no part performance and the golden rule of 'subject to contract' is obeyed. There was a bit of a wobble in the mid 80s and there are a few excellent articles tracing the emergence of the law, but at this time the principle is established enough to say that it is set in stone. If you are interested enough, the cases are:-

Lowis v Wilson
O'Flaherty v Arran Property
Kelly v Park Hall Schools (1979) 113 ILTR 9
Casey v Irish Intercontinental Bank (1979) IR 364
Mulhall v Haren (1981) IR 364
Carthy v O'Neill (1981) ILRM 443
Cunninghan v Maher 9 ILT & SJ
and Boyle & Boyle v Lee & Goyns (1992)

Sponge Bob

Deleted User wrote:

Or put another way, I put my house on the market and 10 people get 10 very expensive architects to do surveys for 2k a go. And the 11th person comes along and makes an offer I can't refuse. You honestly think I am liable to pay 20k to the frustrated bidders?

Crap analogy. One person makes offer at asking price "subject to survey" , in writing usually. That offer accepted by vendor as is the undertanding that the offer is subject to survey .

One specific offer, one acceptance, one survey . If someone gets a survey done before they offer anything there is no misrepresentation is there, they chose to so do.

Survey made acceptance confirmed fully, offer cancelled. Offer may indeed be legally cancelled in itself as no contract issued or signed but the survey would have been carried out after the offer was made and accepted at the asking price.

Were the house not actually for sale the survey was not needed . The seller misrepresented the position after the offer was accepted and let me carry out the survey. He should have answered, nah dont survey it I have cancelled the sale , bye .

Thats simple bog standard common law misrepresentation to me and that prick can hire expensive underlings to explain his side to the judge once I pay my €8 in court or else give me my money back as far as I am concerned .

MorningStar

Sponge Bob wrote:

Were the house not actually for sale the survey was not needed . The seller misrepresented the position after the offer was accepted and let me carry out the survey. He should have answered, nah dont survey it I have cancelled the sale , bye .

How is anybody going to know the person misrepresented? You are assuming intent and it is accepted that people can just change their minds. There is no leagle presedent infact there is the opposite. When it happens to you you can sue but it doesn't make it good advise.

OP Just move on, I know the pain as I spent more than just a survey on a property and I didn't buy the property.

lomb

no harm in wasting their time if theyve wasted urs;) , however think how an auction buyer feels. more than 1 person usually forks out on contract checks/ detailed surveys and alot of time is put in. and only one person if that at all will get it on the day. property is a grubby business but a necessary one, roll ur sleeves up and get in there take good with the bad, treat this as a learning experiance, and remember a loss of asurvey isnt alot when u are buying a house worth several hundred k..

Sponge Bob

Sponge Bob wrote:

Crap analogy. One person makes offer at asking price "subject to survey" , in writing usually. That offer accepted by vendor as is the undertanding that the offer is subject to survey .

I'm afraid that is where your understanding of the whole procedure is wrong and your argument collapses.

Pre-Contract correspondence between Solicitors, and as issued from the Auctioneers, is NEVER merely 'subject to survey'. It is incorrect to suggest that it is. 'Subject to survey' may be a layman's phrase, but it has no relevance whatsoever in the world of conveyancing. Pre-Contract communications are ALWAYS 'subject to contract/contract denied'. The Purchaser may understand that the transaction is only subject to survey, but his understanding is wrong, the transaction is always subject to a binding contract being exchanged. That is a fundamental rule of conveyancing practice and there is not a Solicitor in the country who deviates from that, and the Solicitor for the Vendor to the OP would not be unaware of this.

Again, I invite you to read the cases to which I refer. Unfortunately, the position is pretty clear cut and in the absence of part performance a case must fail.