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Getting back the 10% deposit

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  • 22-03-2008 6:08pm
    #1
    Mearfhada
    Closed Accounts Posts: 7 ✭


    Hello ,
    Obviously I'll have to ask my solicitor's advice after the weekend but just to seek a bit of light on the subject for now .This is the problem. I paid a deposit of 10% on a new house in August '06. The house is only at snag list time now. Have I any hope of getting my money back as I don't want it now as my plans have changed?
    Thanks


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    #2
    latenia
    Closed Accounts Posts: 1,997 ✭✭✭latenia


    I would say you have zero chance. On the other hand, giving up the house and foregoing the deposit may actually save you money in the long term.


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    #3
    Mr. Presentable
    Closed Accounts Posts: 9,496 ✭✭✭Mr. Presentable


    No chance. Prices have probably fallen by the value of you deposit since then, and the builder will find it so much more difficult to sell now.


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    #4
    SimpleSam06
    Closed Accounts Posts: 4,048 ✭✭✭SimpleSam06


    nipplenuts wrote: »
    the builder will find it so much more difficult to sell now.
    Really though, thats not the OP's problem.

    Did you sign any contracts or other legally binding documents which contained clauses to the effect that the deposit was non refundable? If not you should have a small chance, and we're probably talking about a significant amount of money.

    In any case, definetely do consult your solicitor, because no matter what, the builder won't give it up willingly in this market.


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    #5
    Mearfhada
    Closed Accounts Posts: 7 ✭Mearfhada


    Yea that was the answer I thought I'd get. I have a contract signed unfortunately.
    Thanks to all


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    #6
    Victor
    Registered Users Posts: 78,400 ✭✭✭✭Victor


    SimpleSam06 wrote: »
    Really though, thats not the OP's problem.
    Actually, it could very much be the OP's problem - the builder could force the OP to complete the contract and hand over the other 90%.

    OP: solicitor's office ASAP.


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    #7
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    There might be a way out of it. It will cost you to find out.
    Has the builder signed the contract? It is not binding until both parties sign.
    Does the building accord exactly with the planning permission? What did the contract stipulate with regard to the closing date? Your solicitor will probably have to get counsel's advice regarding tactics which might enable you to repudiate the contract.


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    #8
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,505 Mod ✭✭✭✭johnnyskeleton


    Victor wrote: »
    Actually, it could very much be the OP's problem - the builder could force the OP to complete the contract and hand over the other 90%.

    OP: solicitor's office ASAP.

    Which begs the question, was there a valid (i.e. signed & written) contract, or was the deposit a "booking deposit"?


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    #9
    Victor
    Registered Users Posts: 78,400 ✭✭✭✭Victor


    Jo King wrote: »
    Has the builder signed the contract? It is not binding until both parties sign.
    I don't think so. Statute of Frauds 1695 says all the seller needs is for the OP to have signed, not the seller.


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    #10
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,505 Mod ✭✭✭✭johnnyskeleton


    Victor wrote: »
    I don't think so. Statute of Frauds 1695 says all the seller needs is for the OP to have signed, not the seller.

    This is a thorny subject and is likely to cause a lot of problems into the future. In England it is only when the contract is signed by both parties and delivered by the vendor to the purchasor that there is a valid contract (hence signed, sealed and delivered). But in Ireland, once the purchasor has signed, the vendor can hold onto this contract and decide to sign it at his leisure. So there can be a situation where the contract is binding on the purchasor but not binding on the vendor which is very unfair and needs to be sorted out.

    Had i any say in this, I think the Irish courts should adopt the English system whereby the contract is only valid once the signed copy is delivered on the purchasor, but in reality I don't think they can do so without legislative intervention. In any case, this question is almost certainly going to be answered in the next year or two as a slew of these contract disputes (not to mention all the shoddy conveyancing, faulty building, no planning permission etc disputes) come before the courts.


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    #11
    SimpleSam06
    Closed Accounts Posts: 4,048 ✭✭✭SimpleSam06


    Victor wrote: »
    Actually, it could very much be the OP's problem - the builder could force the OP to complete the contract and hand over the other 90%
    Which he could and would do regardless of market conditions, if there is a contract signed, which makes the difficulty of reselling the property irrelevant. Unless you think builders are in the habit of letting money walk out the door.
    Victor wrote: »
    I don't think so. Statute of Frauds 1695 says all the seller needs is for the OP to have signed, not the seller.
    So eh, lets see. I make up a contract, saying Jimmy the car dealer will sell me a new volvo for €50 plus other considerations, sign it, and thats legally binding on poor old Jimmy? Thats great.


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    #12
    johnnyskeleton
    Moderators, Entertainment Moderators, Politics Moderators Posts: 14,505 Mod ✭✭✭✭johnnyskeleton


    SimpleSam06 wrote: »
    So eh, lets see. I make up a contract, saying Jimmy the car dealer will sell me a new volvo for €50 plus other considerations, sign it, and thats legally binding on poor old Jimmy? Thats great.

    A contract for sale of land is different to another contract. For one thing, if there is an oral agreement between you and Jimmy to sell the car, that oral contract can be enforceable.

    In terms of a conveyance, if the purchasor signs the contract, it is binding on the purchasor not the vendor.

    So to apply your example, if you make up that contract with Jimmy and sign it, it is binding on you, so Jimmy can enforce it against you. But it is not binding on Jimmy, so he can reject the contract and refuse to sign if he likes. In England the contract only comes into existence when the contracts are exchanged, but in Ireland the vendor can hold the purchasor in a bind (potentially for several months) without committing themselves.


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    #13
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    Victor wrote: »
    I don't think so. Statute of Frauds 1695 says all the seller needs is for the OP to have signed, not the seller.

    The invariable practice is that the deposit is paid subject to contract and no contract shall be deemed to be in existence until executed by both parties. The Statute of Frauds is concerned with the evidentiary requirements in a contract for the sale of land. In theory the o/p can withdraw before the builder signs. In reality the builder can sign the contract (and backdate it if needs be) at any time before handing it over. The o/p is trying to get out of the contract. What he would be relying on is the failure of the builder to be able to complete in accordance with the terms of the contract.
    I know of someone who paid €5000 to a barrister who got them out of a contract.


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    #14
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    johnnyskeleton wrote: »
    Which begs the question, was there a valid (i.e. signed & written) contract, or was the deposit a "booking deposit"?

    Generally the "booking deposit" is much less than 10%. It is usually around 3-4%. This is usually sufficient to cover the agents fees. The balance of 10% is paid on signing the contracts.


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