WA What does full force and effect mean

[John Rabbit]

Hello I'm new to the forum and going through anguish watching my Son getting done over by Lawyers and real estate agents.

He is 23 and put an offer on a property, he ticked and took the standard subject to finance and inspection clauses.

What we find out now the protection the clauses were intended to provide have been nullified by other clauses in the T & C's.
He got finance approved and submitted the notice.

He got an inspection by a builder, this identified defects, this is when the problems started, The sellers agents disagreed. my son sent the report to the lender, they cancelled the finance. he notified the seller, that he no longer has finance.

Sellers lawyer disagrees, as clause says "if an Approval notice is given then this Clause 1 is satisfied and this contract is in full force and effect"

However an earlier clause says
The Buyer must immediately give notice to the Seller or the Seller Agent:
1) An Approval notice if the buyer obtains Finance Approval; or
2) A Non Approval Notice if the Finance Application is rejected,
At any time while the Contract is in force and effect.

Sorry its long winded, but I read that despite the it being in full force and effect is still in force and effect.
Reading it at face value I believe we are entitled to serve the at any time as the contract is still in force and effect. They are saying because the clause is satisfied "We no longer have that right".

Any relevant information would be greatly appreciated, Im desperate and confused.

 

[Tripe]

Was the contract for purchase, conditional on your 2 individual items:
1 finance
2 a satisfactory building report
during the conditional stage ?

Or was the contract conditional only on finance ?

My simple reading of your post suggest it may only be conditional on finance and your bank advised the seller (lawyer etc) (in the contract time frame) that finance had been approved, which would make the sale unconditional.

Who ever is doing your conveying, should be able to clarify your situation.

 

[John Rabbit]

it was subject to both finance and building clauses.
problem is we find later under the terms of the contract the building condition clause cannot introduced until 3 days AFTER the last approval for finance. eg. the trap has been shut, to add salt to the wound, terms terms excluded everything as a Structural defect. Buy a house in WA.....Buyer has no rights


yep that's sounds about right, Unconditional, my problem is the word unconditional are not used anywhere in the contract or T&C, just vagaries such as "Satisfied", "force and effect" and "Full force and effect".

I read these words on face value..... "satisfies" merely meets the condition it doesn't remove it, and the contract is still "force and effect" despite it being in "full force and effect".

anyway thanks for your imput.

 

[John Rabbit]

been approved, which would make the sale unconditional.

Hello Tripe, I cant help wondering but, based on the information I gave you why would you say the make sale unconditional ?

 

[Tripe]

Normally when a house purchase sale is entered into, There house purchase is subject to conditions such as finance being approved, or the sale of an existing residence or satisfactory building inspection. For example, During this period a purchasers bank will need to formally advise the vendors agent if the Finance is approved or not approved.

Normally on a 28 day contract, 14 days are allowed for these sale conditions to be meet, i.e. the bank to advise if finance is approved.

When These clauses or conditions have been meet, the contract is said to go “unconditional”

Then a further 14 days is allowed for formal settlement.

I suggest your talk to the bank and work out your rights.

And most states offer community legal, that allows a free lawyer visit.

 

[Tripe]

been approved, which would make the sale unconditional.

Hello Tripe, I cant help wondering but, based on the information I gave you why would you say the make sale unconditional ?

I am not clear if your contract for purchase was conditional on a building inspection.

As the way I read it, you showed the bank the building inspection and then they bank changed their mind and declined finance.

 

[Tripe]

+

As opposed to your lawyer, sending this unsatisfactory property inspection to the vendors agent, and advising them, that the sale will not be able to proceed due to the unsatisfactory building inspection

In the prescribed time frame.

 

[John Rabbit]

Hi Tripe, thanks for your responses.

We had building inspection as a clause in the contract to purchase, did not have it as a condition with the lender. we have an obligation of disclosure so made the report available to the lender.

I am beginning to understand that the words and phrases in the contract have a different meaning to what you would expect them to, which is extremely unfair if no definition's to the extended meaning I provided. Looking at getting some legal advice now

 

[Rob Legat - SBPL]

The conveyancing process in each state is different, so it can be difficult to be definitive unless you talk to a WA property lawyer.

Was the contract conditional on the buyer obtaining a property inspection report on terms satisfactory to the buyer (or similar)? If so, was there any communication that that condition had been satisfied?

With the finance clause, assuming WA is similar to Queensland (and it usually is), once you have communicated acceptance of finance then that whole finance clause falls away and you can’t go back to it. This is because it is not up to the seller to be satisfied with the terms of the finance, it is the buyer; and the clause is for the buyer’s benefit. The buyer could waive the finance clause without obtaining approval, although this would rarely happen in practice.

 

[John Rabbit]

Hi Rob,
thanks for your reply.
I went to see a lawyer on Friday, nice guy.

Basically we are screwed. The contract was written to negate the value of the property inspection and the defects notice can on be introduced after the contract has gone into "Full force and effect".
Its obvious the WA industry is across how the process works, they set T & C's accordingly to catch unsuspecting buyers.

If you live in WA and are planning to buy real-estate, get a lawyer to look over the contract before signing it.
Iam not in the legal business, just a parent of some who has been trapped and hoping to see some good come of it.