Hains Solicitors

Article, 27 September 2004 

 

  

Current Market Information

 

Signing time ...

 

We had an excellent question recently as follows:.

 

"There is, I believe, some confusion in the industry about when the seller should sign the contract when it is being negotiated and is being hand-amended".

 

"Say the buyer makes his offer and signs, but the seller changes either the conditions or the price.  Does the seller sign at the same time, or wait until the buyer has intialled those changes."

 

"This arises all the time and different agencies seem to do it different ways, each believing their way is correct."

 

We believe the answer is as follows:

  1. There is no law requiring that the signatures to a real estate contract must be placed on the contract in any particular order.

  2. In practical terms, having the seller counter-sign will mean one less meeting to get a binding contract .. if the buyer signs then you don't have to go and see the seller again !

 

Initials on contracts ...

 

There is no law requiring an amended contract to have initials alongside each and every amendment.  So why go to the trouble ?

 

When a contract is amended there is a very real risk of a dispute arising about exactly what was agreed.

 

Just this week, we had a meeting with a client where the contract was amended after it was signed, and the client had not seen changes made - and said that they had not agreed to those changes.

 

Insisting on each of the parties initialling all changes to the contract, goes a long way to preventing problems with the contract at a later time - and is "good form".

 

 

Accidental instalment contracts ?

 

There is a real trap for agents, contained in section 71 of the Property Law Act 1974 .

 

A contract where the deposit is greater than 10% of the purchase price, is deemed an 'instalment contract'.

 

Usually, it would seem easy to calculate whether the deposit is greater than 10% of the price.  However, it is not always so easy.  The Supreme Court earlier this year was asked to decide how the amount of the deposit applies to a discounted purchase price.

 

In Moor v BHW Projects Pty Ltd [2004] QSC 60 (25 March 2004) there was a deposit of $24,750, a contract price of $247,500, and the following special condition:

 

"Immediately upon payment of the deposit under this contract the buyer will receive a discount of $10,000 from the purchase price payable at settlement"

 

The Supreme Court decided this clause meant the deposit was more than 10% of the purchase price (ie the "real" purchase price was $237,500.00).

 

 

 

Kindest regards,        

 

Hains Solicitors
Ph 3210 0914
Fax 3210 0521
mjh@hainslaw.com.au
www.hainslaw.com.au

"No problem can stand the assault of sustained thinking."   Voltaire
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