NSW Selling a property when I have a right to reside

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everlast

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15 November 2018
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I am one of two Executors. The property that I reside in is a Deceased Estate. Last Friday, a buyer signed the contract from the real estate agent last week, putting down ten percent deposit last Friday, 9 November 2018 agreeing to a 12 week settlement and a no cooling off period. The property had been passed in at Auction end of August this year and went to Private Treaty. The buyer then left for overseas and is still there. He instructed his solicitor to have withdrawn from our conveyancing contract, the clause that can permit the seller, (vendors), access to the buyer's deposit money if there was a need for the vendor to require a deposit for their own property. Our conveyancer never advised us of this, and I was only informed of this yesterday when I phoned our conveyancer to advise him that I had agreed to the buyer's offer. The settlement is 12 weeks. The buyer then sought through his solicitor who instructed our conveyancer, who contacted me for permission for a DA and Surveyor, to which I said, yes. My concern here is, with the buyer overseas communicating through his solicitor to our conveyancer, is there any possibility that we as vendors may have been swindled. Is the fact that the buyer has requested DA and Surveyor, as well as putting down ten percent deposit signs that the buyer is good for the purchase of our property. This is the only place I have lived for the past twenty years, and have no other income except for a low income support benefit from Centrelink. I cannot obtain a home loan from any bank due to the nature of the benefit I receive, not even a personal loan. The other executor wanted to sell and I was given a right to reside indefinitely, by my now late mother in her Will. I am told that my right to reside here would not stand up in Court should the property have ended up in the Courts for them to appoint a Trustee and the Courts own real estate agent. As I had given up my right to reside at this residence, the other executor declined to consider giving me an actuary amount in lieu of my giving up my right to reside here. He also declined to pay me the difference between the buyer's offer and the upper limit of the price guide for this property as we were asked to reduce the price of this property three times. The originally price guide for this property, I now know, was only given as a "sweetener" to gain the selling rights to the property, which I believe was misleading to begin with. Now in just over eight hours time, I will be signing the contract that will legally bind me into selling this house. I do not know what to do from here or where I will go. Thanks. As I post this thread it is now 0250 am Thursday 15 November 2018.
 

Rod

Lawyer
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27 May 2014
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I was given a right to reside indefinitely, by my now late mother in her Will

This right is key as to whether you need to sell. What is the nature of this right? If it is a life estate you do not need to sell, and in your circumstances probably shouldn't.

See a lawyer/community legal centre ASAP BEFORE SIGNING ANYTHING.
 

everlast

Active Member
15 November 2018
10
0
31
Thanks for your reply, but yesterday the contracts were exchanged. My older sibling wanted to sell. I now have another problem. The settlement date falls on the first Friday of February. I have been advised that I have up until 2.00 p.m. to vacate the property. My problem is that I will not be able to access the settlement money from my bank account until the Conveyancer clears all and deposits the settlement amount which means that I will not have anywhere to live for a short period of time.
I do not have friends with whom I can stay until such time that I am financial and can access the settlement money.
 

everlast

Active Member
15 November 2018
10
0
31
This right is key as to whether you need to sell. What is the nature of this right? If it is a life estate you do not need to sell, and in your circumstances probably shouldn't.

See a lawyer/community legal centre ASAP BEFORE SIGNING ANYTHING.
Hi Rod, To answer you anyway, "the right to reside differs from a life long residency. It just means that my late mother had given me her legal permission to stay or live in the house for as long as I wanted to until I was of the mind to cease living in the home, and at the point I would place the property on the market.

That is now not at all possible.

Thanks again. I would strongly urge anyone who reads this blog of Legal Forum, that if you have been given either a right to reside in a Deceased Estate or a life long residency, and another person, either the other Executor or someone who has been left something in the Will, wishes to sell the property to access their beneficiary right, then you should really get a move on and find out what your current legal status is and how the Courts view this "gift" of residency.

In cases where this is certain, the other party(ies) may be able to force a sale by applying for a Section 66G in the Conveyancing Act (NSW) 1919. Get a very good solicitor who is expert in the latest Australian Property Law and Conveyancing Law and find out NOW!!! before it is too late.
 

Rod

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I accept the two rights are different, and without seeing the will it is hard to know if the right to reside granted to you is strong enough to prevent a sale. Some clauses granting a right to reside are strong enough to resist a sale.

Did you get legal advice before signing?
 

everlast

Active Member
15 November 2018
10
0
31
I accept the two rights are different, and without seeing the will it is hard to know if the right to reside granted to you is strong enough to prevent a sale. Some clauses granting a right to reside are strong enough to resist a sale.

Did you get legal advice before signing?


Hi Rod, yes, I did get legal advice, but I "buckled" under the pressure coming from my older sibling wanting to sell and the REA wanting me to accept the offer.

I originally told the REA that I was not going to accept the offer. That reply was based on the fact that we had had no offers in the almost four months on the market, that over 50 contracts had been issued, that no one bid any further on the Auction night, that the REA did not advise us to accept the vendor's bid, since all offers there after were put in the Activity Report but none of the promising offers were acted on and we were told these were feedback and suggested offers and these offers were before the buyers knew about the easement and the big tree in the back yard. Nothing was fully explained. Everything was explained when it was too late to act. So, this went on and on, until Friday evening when I was under so much pressure to accept the offer. I now know that it was a wrong call, but my older sibling did not care and just wanted his money.

Thanks Rod
 

Rod

Lawyer
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27 May 2014
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My problem is that I will not be able to access the settlement money from my bank account until the Conveyancer clears all and deposits the settlement amount which means that I will not have anywhere to live for a short period of time.

Time to start leaning on the sibling who forced your out.

Tell him you will need a loan to rent somewhere before the settlement money comes through. Tell him you may have trouble moving out and it may impact settlement unless he helps you. The alternative is to say you want an early release of the deposit and you want it all to help move out on time.

You are in a better position now to negotiate these 'extras' because he needs you out of the house at settlement. You seemingly have nothing to lose by asking for assistance at this point in time.
 

everlast

Active Member
15 November 2018
10
0
31
Time to start leaning on the sibling who forced your out.

Tell him you will need a loan to rent somewhere before the settlement money comes through. Tell him you may have trouble moving out and it may impact settlement unless he helps you. The alternative is to say you want an early release of the deposit and you want it all to help move out on time.

You are in a better position now to negotiate these 'extras' because he needs you out of the house at settlement. You seemingly have nothing to lose by asking for assistance at this point in time.

Hi Rod,

The purchaser instructed his solicitor to withdraw the clause that would have allowed me to access the purchaser's deposit money. This after the purchaser had been a couple of weeks overseas. Now the property has been sold, the contracts have been exchanged and his solicitors are Shad Partners, apparently a very good firm.

I have this on good authority from a legal person.

Thanks