A reader would like to know how to resolve a situation where the transfer on a property purchased by his dad was never completed and the “bond repayments” were actually for occupational rental.
The fixed property was purchased about five years ago and he says his father, being naturally careful, opted for credit insurance.
Approximately a year ago, the father developed health problems and was medically boarded.
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In dealing with his various creditors, enquiries into the home loan for the property have raised alarming concerns.
Besides the transfer of the property apparently not being completed, the home loan insurance was never put into place.
His father has been trying to get to the bottom of the matter, but enquiries to the bank and the conveyancing attorneys have proved fruitless.
The reader also mentions estate lawyers, which may indicate that the property was sold out of an estate. The estate lawyers were perhaps the executors or attorneys acting on behalf of the executor.
Although the reasons are not clear, the bank has advised the reader’s father that he may not be granted any further credit or insurance cover.
There is also a fear that the house they thought they had may be lost due to the circumstances that have led to the current scenario.
It is advisable that our reader starts by examining the document that set this process in motion. This is the offer to purchase or the deed of sale upon the offer being accepted.
The agreement may have contained various conditions, perhaps due to the property being sold from an estate, and the document should be examined carefully to determine whether this is the case.
The identity of the seller or a representative would be recorded in such a document and this is the person our reader should deal with.
The address for correspondence, notices and the like should also be set out in the document.
Depending on the provisions in the agreement, the reader’s father may be in a position to claim either breach or specific performance, but the consequences of any legal steps should be carefully considered.
It may be useful to make written enquiries from those concerned to secure a paper trail for possible future legal steps.
The conveyancer has a duty of care to both the seller and the purchaser.
He may be in default should he fail to respond to one or more direct questions as to the status of the matter and what occurred leading to that position. Historical documentation should also be examined.
There are a number of things that need to be examined.
For example, you can check for correspondence from the conveyancer advising of the bond registration, when the documents were lodged for transfer and determine whether any confirmation of transfer was given.
You can also check when and what documentation was signed.
Occupational rental is often paid directly to the seller or the conveyancing attorney.
The reader should examine the bank statements to determine whether this was the case.
The occupational rental paid is typically an amount agreed in the sale agreement and the amount will not necessarily coincide with the amount payable in respect of a bond repayment.
Also, the recipient of the funds would be the bank providing the loan.
If the reader’s father has been the victim of misrepresentations made to him, formal legal advice should be sought to determine what remedy is available to him.
The remedy also focuses on whom it was that made any such misrepresentation.
Although not always reconcilable, the desired outcome of the reader’s father should also be considered.
It would appear that retaining the fixed property is a priority which may then remove, for example, cancellation of the sale agreement as an option to pursue.
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