A reader who allowed the buyers of her house early occupation wants to know if she can apply for an eviction order after they failed to secure a bond and pay the occupational rental.
She recently marketed for sale the property that was usually rented out.
A couple approached her expressing interest as the house is ideally situated near a school.
Their eagerness to move in took her by surprise as she was still planning to do some maintenance.
See the reader’s question here.
The purchasers told her they were in a predicament as their previous landlady had to return to the property and they were under pressure to vacate it. The reader later discovered this was untrue.
The couple completed an offer to purchase and the reader sent that to her attorney to prepare a formal agreement.
She allowed the would-be purchasers to take early occupation, subject to payment of occupational rental.
They were due to secure their mortgage bond within a stipulated period but were unsuccessful. A second attempt to secure the bond when the period was extended also failed.
The couple then did not pay the full occupational rental, merely paying half of the rental on two occasions and not again.
In addition, they refused to sign the agreement prepared by the attorney and refused to pay the deposit required to proceed with the sale.
The reader feels that as they could not agree there is no contract in place.
The first aspect to note is that the reader says the purchasers completed an offer to purchase.
Depending on the form and content of this “offer”, such a document usually constitutes an agreement of sale when signed by both parties.
The fact that such a document is often termed an “offer” causes some difficulty and many people assume that a further document is required for a true agreement to be reached.
Assuming that the offer was prepared in the usual manner, this is not the case.
All that is required is for the seller to accept the offer and the deal is concluded.
This also begs the question as to the basis on which the purchasers were to approach the bank for a mortgage bond and whether this condition was contained in the offer to purchase or the unsigned subsequent agreement of sale.
The bank would require sight of the signed agreement and it is not clear what document would have been produced, if they approached the bank at all.
The purchasers are almost certainly not acting in good faith and are quite likely attempting to pull the wool over the eyes of the reader.
But if this is not the case and they are acting properly, they may be equally confused by the new contract being put to them for signature.
This one possibly includes provisions not contained in their offer to purchase.
Their failure to pay the agreed occupational rental is cause for concern.
It is not clear whether this obligation arose from the first or second contract.
The reader should establish the validity of the first contract – the “offer” – to determine what rights and obligations exist and what her remedy is.
If the offer is valid, that agreement should be examined.
The provisions of the breach clause can be used to place the purchaser on terms and either force the performance of the purchaser or cancel the agreement and possibly claim damages.
Eviction could also be sought as part of the claim for cancellation.
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