solicitor didnt take deposit for house sale

daheff

So, found out recently that the solicitor did not request 10% deposit for the sale of the house we are currently going through (said as its a charitable organisation they shouldnt need to). He never mentioned it to us...I only happened to check with them offhand as we were paying up our 10% for property we were buying.

Fine if it all goes swimmingly,but things are starting to fall apart.


where do we stand? Should I be finding another solicitor to rectify this monumental fck up?

NewCorkLad

Not really a major fck up. The booking deposits are fully refundable anyway so if everything does go belly up you will be entitled to your deposit back and they would have been entitled to theirs.

?Cee?view

NewCorkLad wrote: »

Not really a major fck up. The booking deposits are fully refundable anyway so if everything does go belly up you will be entitled to your deposit back and they would have been entitled to theirs.

This isn't correct. OP is talking about the contract deposit (which isn't usually refundable) and not the booking deposit (which usually is).

listermint

Did they take it off the market.

That's more important at this point

daheff

?Cee?view wrote: »

This isn't correct. OP is talking about the contract deposit (which isn't usually refundable) and not the booking deposit (which usually is).

Yep -sorry talking about contract deposit.

listermint wrote: »

Did they take it off the market.

That's more important at this point

Its the buyer of my property who hasnt paid up. I'm the one looking like out of pocket (As I'll lose the deposit i've paid coz I can't complete).

?Cee?view

daheff wrote: »

Its the buyer of my property who hasnt paid up. I'm the one looking like out of pocket (As I'll lose the deposit i've paid coz I can't complete).

But how would you be in a better position if you had the 10%?

Your solicitor can still sue to make the purchaser complete the purchase.

Even if you had the 10%, you couldn't use it towards the purchase of the house you're buying as it's not your money until the purchase from you either completes, or falls through completely. In the interim, it has to be held by the solicitor.

What you have really lost is the possibility if the purchase from you falls through, of retaining 10% and telling them to f**k off. Now your likely only option is to sue to make them complete.

daheff

?Cee?view wrote: »

But how would you be in a better position if you had the 10%?

Your solicitor can still sue to make the purchaser complete the purchase.

Even if you had the 10%, you couldn't use it towards the purchase of the house you're buying as it's not your money until the purchase from you either completes, or falls through completely. In the interim, it has to be held by the solicitor.

What you have really lost is the possibility if the purchase from you falls through, of retaining 10% and telling them to f**k off. Now your likely only option is to sue to make them complete.

yeah but you know the adage that you cant get money from a stone, right? Better to have the 10% in my solicitors client account than not.


also anybody know when the title deeds should be passed to the buyers solicitor? Seems this is another sticking point

?Cee?view

daheff wrote: »

yeah but you know the adage that you cant get money from a stone, right? Better to have the 10% in my solicitors client account than not.


also anybody know when the title deeds should be passed to the buyers solicitor? Seems this is another sticking point

Usually the buyer's solicitor gets copies beforehand and when the deal closes (i.e. all money passes), the originals are given over.

daheff

?Cee?view wrote: »

Usually the buyer's solicitor gets copies beforehand and when the deal closes (i.e. all money passes), the originals are given over.

hmm...buyers want it before money is passing.


seems like a lot of shenanigans going on in this deal. Ready to swing for people out of frustration.:mad:

sullivk

Our solicitor had a clause inserted in our contracts that our new house purchase was dependant on our property sale. In the event the sale went belly up then we would be entitled to our purchase deposit back.
Have you got this in your contracts? Why didn't they take a 10% contract deposit when signing?

ballyharpat

when does the seller get to keep 10%? I never heard of this?

daheff

sullivk wrote: »

Our solicitor had a clause inserted in our contracts that our new house purchase was dependant on our property sale. In the event the sale went belly up then we would be entitled to our purchase deposit back.
Have you got this in your contracts? Why didn't they take a 10% contract deposit when signing?

Ours had a clause that our onwards purchase is dependant on having funds to purchase (which we have/ mortgage/sales proceeds).

ballyharpat wrote: »

when does the seller get to keep 10%? I never heard of this?

Its always been thus. The people buying transfer deposit of 10% for binding contracts -gives people incentive to complete (ie you dont return the money if they dont complete).

ballyharpat

Ive always had the clause that until contracts are signed the deposit is refundable........

sullivk

ballyharpat wrote:

Ive always had the clause that until contracts are signed the deposit is refundable........

10% deposit is usually paid upon signing of contacts. Then balance of property sale price when closing

ballyharpat

sullivk wrote: »

10% deposit is usually paid upon signing of contacts. Then balance of property sale price when closing

I beg to differ, a deposit is normally paid when a sale/purchase is agreed, the rest when contracts are signed......Here it is as per the law-

There are no consequences if you put down a "holding deposit".

Nothing is "contractual" until a contract is signed. The putting down of a deposit expresses an interest in buying the property, sale agreed acknowledges this - from a vendors point they can at any point accept a higher offer and return your deposit and from a buyers point he can withdraw from the sale and get the deposit back.

Deposits are normally in two stages, one a holding deposit and the second a contractual deposit.

Only when contracts are exchanged are both parties legally bound by the transaction.


"Is the deal done when we agree a sale ?"


Unfortunately not. Under the laws of conveyance, the sale of the property is not firm until both the purchaser and the vendor have signed and exchanged contracts of sale. Your solicitor will explain the legal significance of this. Up to this point, both purchaser or vendor can withdraw from the sale. It doesn’t happen often, but you should be aware that it can happen. Up to the exchange of contracts, your holding deposit is fully refundable if the sale does not proceed for any reason. "


http://www.ennisgough.ie/buyers.html

This is THE LAW. Do not pay any heed to anyone who tries to tell you otherwise.

wench

You're arguing against something that hasn't been said.

The holding deposit of a few thousand paid on going sale agreed is fully refundable.

The balance of the 10%, paid when signing contracts is not refundable.

ballyharpat

Apologies on my part-I jumped to conclusions without reading the full thread-thank you.

wench wrote: »

You're arguing against something that hasn't been said.

The holding deposit of a few thousand paid on going sale agreed is fully refundable.

The balance of the 10%, paid when signing contracts is not refundable.

?Cee?view

ballyharpat wrote: »

Ive always had the clause that until contracts are signed the deposit is refundable........

That's the booking deposit

?Cee?view

ballyharpat wrote: »

I beg to differ, a deposit is normally paid when a sale/purchase is agreed, the rest when contracts are signed......Here it is as per the law-

There are no consequences if you put down a "holding deposit".

Nothing is "contractual" until a contract is signed. The putting down of a deposit expresses an interest in buying the property, sale agreed acknowledges this - from a vendors point they can at any point accept a higher offer and return your deposit and from a buyers point he can withdraw from the sale and get the deposit back.

Deposits are normally in two stages, one a holding deposit and the second a contractual deposit.

Only when contracts are exchanged are both parties legally bound by the transaction.


"Is the deal done when we agree a sale ?"


Unfortunately not. Under the laws of conveyance, the sale of the property is not firm until both the purchaser and the vendor have signed and exchanged contracts of sale. Your solicitor will explain the legal significance of this. Up to this point, both purchaser or vendor can withdraw from the sale. It doesn’t happen often, but you should be aware that it can happen. Up to the exchange of contracts, your holding deposit is fully refundable if the sale does not proceed for any reason. "


http://www.ennisgough.ie/buyers.html

This is THE LAW. Do not pay any heed to anyone who tries to tell you otherwise.

You're so confused. What's sad is it becomes laughable when you state it's THE LAW.

cherrypie

Draft Contracts for Sale together with copy title to prove the sellers ownership are sent to a proposed purchasers Solicitors for review. If they're satisfied with the sellers title and the conditions of sale then contracts are signed and exchanged and 10% of the total purchase price (less the deposit already paid to auctioneer) is paid by the purchaser. The balance is payable on closing.

If the sale falls through, the 10% deposit is not refundable.

Your solicitor can't sue the purchaser to force them to complete the sale. The most you could sue for is the balance of the 10% they should have paid on signing the contact.

You have signed contracts and paid 10% deposit on the new house that you are buying. If you cannot complete then you will lose your own 10% deposit, unless as others have pointed out a condition has been inserted that you first complete your own sale - another quite normal condition to see in conveyancing contracts.

Even if you did lose the 10% deposit paid by you on your own purchase, it wouldn't have been a total catastrophe if you had of received the non-refundable 10% deposit from the sale, which of course hasn't happened. Maybe the purchaser thinks they can pull out now and don't have much to lose if they do.

Sounds like your solicitor might have dropped the ball. You need to organise a meeting and have a discussion to clarify what happened here and what protections, if any, he's put in place for you. Only your Solicitor can answer exactly what has been agreed in the contracts or in correspondence.

ballyharpat

What's sad is, it's copied and pasted from Daft.ie,-which is correct in everything that is stated- word for word-and what's sadder, is you didn't read my previous post :pac:

?Cee?view wrote: »

You're so confused. What's sad is it becomes laughable when you state it's THE LAW.

?Cee?view

ballyharpat wrote: »

What's sad is, it's copied and pasted from Daft.ie,-which is correct in everything that is stated- word for word-and what's sadder, is you didn't read my previous post :pac:

And you take daft.ie as being some sort of legal oracle?

Elements of what you have pasted are correct but your interpretation interspersing them is incorrect, but, hey, you know better I'm sure :rolleyes:

I did read your previous post.

?Cee?view

cherrypie wrote: »

Your solicitor can't sue the purchaser to force them to complete the sale. The most you could sue for is the balance of the 10% they should have paid on signing the contact.

Two things.

You're presuming they should have paid on signing, but maybe the solicitor changed that clause?

What about specific performance? Damages?

daheff

cherrypie wrote: »

Sounds like your solicitor might have dropped the ball. You need to organise a meeting and have a discussion to clarify what happened here and what protections, if any, he's put in place for you. Only your Solicitor can answer exactly what has been agreed in the contracts or in correspondence.

and hes not answering questions. Got fairly snotty with me earlier when i told him he was wrong on something. Told me he does this all the time and i have no idea what i'm talking about.

If only there were time to get another solicitor to sort all this out

Grawns

Email and ask for a copy of the contract immediately.

?Cee?view

daheff wrote: »

If only there were time to get another solicitor to sort all this out

To be honest, that might just make matters worse. I suggest you go to see the guy and ask him to explain the position. Keep your questions to yourself, bite your lip and see if he can make sense before you start asking questions.

If you launch into question, he'll be defensive.

Ayuntamiento

What happens if the purchaser pays the 10% deposit but then the sale falls through due to factors which the vendor is responsible for? I assume you get your 10% refunded then?

Yourself isit

My solicitor made the contract deposit refundable if the mortgage application failed. Some other provisions too.

Grawns

?Cee?view wrote: »

To be honest, that might just make matters worse. I suggest you go to see the guy and ask him to explain the position. Keep your questions to yourself, bite your lip and see if he can make sense before you start asking questions.

If you launch into question, he'll be defensive.

To avoid this. I would keep everything in writing and if you find he has not looked after your interests you can report him after the fact to the law society. Changing solicitors is a last resort. Read the contract. Has he deleted standard clauses relating to deposits.

If I was to start on about how much I've been let down by crooked criminal and incompetent solicitors I'd be here all day. 1 was criminal and has been struck off. One was crooked and the case is in the high court, and and currently dealing with incompetent. She couldn't distinguish between nppr and property tax dates as well as a multitude. End of rant



Saying all that I have 5 good friends who are solicitors and another's a barrister. I will be listening to them rather than following family tradition in future��

Ayuntamiento

Yourself isit wrote: »

My solicitor made the contract deposit refundable if the mortgage application failed. Some other provisions too.

How on earth would you get to the point of signing contracts without knowing if your mortgage application was successful or not? We had to have our loan offer formally issued by the bank prior to going down the route of contracts.

cherrypie

The seller countersigns after the purchaser so should have seen any amendments made to the Contract and should also have been given copies of the contract they signed. However, they may not have been or may not have read it well. Buying and selling is super stressful at the best of times. Most people find this whole process overwhelming and hard to follow. They're really depending on their solicitor to guide them and keep them informed about what's going on. That doesn't seem to be happening.

I still suggest trying to keep the cool and have a meeting to try and iron out the issues, clarify what's happened and what the plan is now. Don't accuse him of anything yet, don't get his back up, listen to what he has to say and access if it stacks up.

Yourself isit

Ayuntamiento wrote: »

How on earth would you get to the point of signing contracts without knowing if your mortgage application was successful or not? We had to have our loan offer formally issued by the bank prior to going down the route of contracts.

Because they sent us the contracts before the mortgage was drawndown. It was agreed. We sent it back with these amendments and others. A bank agreement can fall through, even in the week or day before drawdown.

Parchment

sullivk wrote: »

Our solicitor had a clause inserted in our contracts that our new house purchase was dependant on our property sale. In the event the sale went belly up then we would be entitled to our purchase deposit back.
Have you got this in your contracts? Why didn't they take a 10% contract deposit when signing?

Ours did the same - if we couldnt get life insurance or anything like that happened. She said she always protects her clients in this way, i would assume its the norm.

daheff

Yourself isit wrote: »

Because they sent us the contracts before the mortgage was drawndown. It was agreed. We sent it back with these amendments and others. A bank agreement can fall through, even in the week or day before drawdown.

the other side is that the mortgage approval could run out before the deal closes.

fret_wimp2

Ayuntamiento wrote: »

How on earth would you get to the point of signing contracts without knowing if your mortgage application was successful or not? We had to have our loan offer formally issued by the bank prior to going down the route of contracts.

Buying a house off plans, or currently in construction.

To make the purchase (get to contract signing) you need a letter of offer, which needs a valuation on the property. In this case it will be done off the plans or a show house.

The property can be under development for some time, during which the mortgage offer lapses and you need to reapply, which needs a re-valuation.

Bank may decide not to give you a mortgage the 2nd time around for a number of reasons. rare but it happens apparently.

Marcusm

Ayuntamiento wrote: »

How on earth would you get to the point of signing contracts without knowing if your mortgage application was successful or not? We had to have our loan offer formally issued by the bank prior to going down the route of contracts.

The fact that you have a formal mortgage offer doesn't mean that it will still be valid or available when you want to drawdown. It might have expired (perhaps a delay in closing) or you may no longer meet the conditions for drawdown (material adverse change in circumstances such as loss of job). A buyers solicitor acting sensibly will seek these clauses, a vendors solicitor will resist them. Simply having a formal mortgage offer does not mean that the money will always be there.

daheff

So we were with the solicitor the other day to try to get this back on track & close.


Solicitor wanted us to sign 'family home declaration' & title deeds (& another document which I cant remember what it was).

Now no problem signing both, but would assume family home declaration wouldnt be something to be left to the day or two before closing? Surely this should have been done when we signed contracts -not day before close/day of close?

Seems to me solicitor forgot to get us to sign some documents?

?Cee?view

daheff wrote: »

So we were with the solicitor the other day to try to get this back on track & close.


Solicitor wanted us to sign 'family home declaration' & title deeds (& another document which I cant remember what it was).

Now no problem signing both, but would assume family home declaration wouldnt be something to be left to the day or two before closing? Surely this should have been done when we signed contracts -not day before close/day of close?

Seems to me solicitor forgot to get us to sign some documents?

Did s/he deal with all your other concerns?

What does it matter when the FHD is signed from your point of view, as long as it's signed? Would you have preferred to sign one some time ago and another just before (and for) closing and been charged for both?

It sounds now a bit like you're just searching for fault.

Mr. Incognito

Family home declaration and section 72 i suspect.

Its not up to your solicitor to teach you conveyancing.

You are selling and buying.

You cant buy without the proceeds of selling.

Where is that at according to your solicitor.

daheff

?Cee?view wrote: »

What does it matter when the FHD is signed from your point of view, as long as it's signed

It sounds now a bit like you're just searching for fault.

My point is that i thought it unusual that this be left right to the end. I get the feeling solicitor forgot this needed signing.

We were called in to sign documents at the last minute (i got an email telling us to come sign stuff).
Deal was supposed to close friday but didnt in the end due to my solicitor not having sent some docs to buyers.

daheff

Mr. Incognito wrote: »

Family home declaration and section 72 i suspect.

Its not up to your solicitor to teach you conveyancing.

You are selling and buying.

You cant buy without the proceeds of selling.

Where is that at according to your solicitor.

Im not expecting my solicitor to teach me conveyancing...Im paying the solicitor to know it & do it in an organised and professional manner. This isnt happening and I have serious doubts the solicitor is on top of things.

Grawns

daheff wrote: »

Im not expecting my solicitor to teach me conveyancing...Im paying the solicitor to know it & do it in an organised and professional manner. This isnt happening and I have serious doubts the solicitor is on top of things.

You are most probably right but luckily things seem to be coming to the end. Wait until the dust settles, you get the bill and then complain away. The law society is there if that non deposit thing was neglectful or unethical. Best of luck!

daheff

Grawns wrote: »

You are most probably right but luckily things seem to be coming to the end. Wait until the dust settles, you get the bill and then complain away. The law society is there if that non deposit thing was neglectful or unethical. Best of luck!

at this stage we just want it completed so we can move on with our lives.