by Ted Skuse Solicitor*
Logan lawyer and columnist Tim O’ Dwyer has, for years, been voicing the shortfalls of the standard conveyancing contract and the lack of disclosure sellers are obliged to make, compared to other jurisdictions in our nation.
The preparation of contracts and other documents by Real Estate agencies continues to be lamentable. Some of the larger agencies ought to be employing qualified legal drafts-people to settle contractual documents so that minimum standards are met.
In MNM Developments P/L v. Gerrard (2005) QCA 230, the Court of Appeal – (De Jersey CJ, William J.A. and McMurdo J.) recently looked at the custom of faxing contracts and warning notices. The Property Agents and Motor Dealers Act 2000 provides that the warning notice must be attached as the first or top sheet.
As Tim O’Dwyer pointed out, the days of receiving a faxed contract (the sale price scrawled out and over-written many times) and faxed and re-faxed so often that the operative parts look like Hitler’s mustache, are gone.
The wave of indignation and panic generated in the Real Estate Industry by this decision was swift.
OTHER CONCERNS INCLUDE:
* Late posting of contract, often after the cooling off and time limits for inspections have expired.
* The failure to physically deliver contracts where the solicitor’s office is within 100 metres of the real estate agent.
* Failure to acknowledge any correspondence endeavouring to improve the service to the public.
* Total ignorance (claimed) as to the impact of GST on commercial real estate and wrongly informing sellers that transactions would not be subject to GST based on alleged legal advice.
* Persistent failure to collect a reasonable deposit (contrary to their own interest and that of their vendor client) of at least 5% of the purchase price. How many of you practising in this area have seen contracts with $100 deposits securing properties of $500,000 or so, effectively granting a free option for months while the agent tries to cobble together finance?
* Shock, surprise, indignation and refusal when it is suggested that the contract document (including disclosure statement) ought to be completed fully and accurately. We are thinking of a very large Surfers Paradise agency here and a contract for a $750,000 high rise unit. We were told that they “never complete that stuff” and didn’t understand why it was there — thus providing an instant escape hatch for a purchaser so inclined.
LET US ASK OURSELVES THESE QUESTIONS:.
* How many of us are prepared to take instructions against a real estate agency?
* How many of us have acted against real estate agents?
* How many of us have ever rendered an account to a real estate agent for giving advice?
* How many of us can say that we have a relationship with real estate agents wherein our position as ethical practitioners and officers of the Court is acknowledged and respected.
* Ted Skuse (President, Gold Coast District Law Association) Skuse & Co. Solicitors PO Box 331, Mudgeeraba Qld. 4213 Ph. 5530 4622 Fax 5530 4602 Email: firstname.lastname@example.org
by Ted Skuse Solicitor*