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Developer dilemma

Discussion in 'Legal Issues' started by ralph1, 5th Sep, 2015.

  1. ralph1

    ralph1 Member

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    Hi all, I need a bit of advice regarding a contract I have on my IP with a R/E agent and a developer.
    An agent contacted me, I did not have the property for sale at the time, saying he had a developer who was interested in buying our property. We signed an "exclusive agent" contract with the agent for 60 days and a contract of sale with the developer.

    If an agent approached us and is acting as a buyers agent for another party, a developer, the exclusive agent contract expired months ago but we renegotiate and sell the IP using the same agent, can we negotiate the commission fee or do we have to pay him at all as he came to us and is acting on behalf of the buyer. He certainly does not have our best interests at heart as he doesn't even keep in contact with us, we have to continually ring him.
     
  2. D.T.

    D.T. Adelaide Property Manager Business Member

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    Exclusive agent agreement signed by you means the agent works for you, not the buyer. Therefore he's legally bound to act in your best interests and achieve you the best possible price and is therefore paid by you. (Legality and reality not always identical).

    Since it's expired, he could argue that he introduced the buyer to you during his contracted time.

    So when you say renegotiated, do you mean the exclusive agency agreement, or something else?
     
  3. ralph1

    ralph1 Member

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    Renegotiate the contract of sale with the developer through the same agent.
    We wouldn't have to tick the exclusive agent box, I don't know if that makes any difference.
    Could we use another agent or get a solicitor to draw up a contract?
    If we use the same agent are the commission fees negotiable?
    The original exclusive agent contract expired just before Christmas 2014.
     
  4. D.T.

    D.T. Adelaide Property Manager Business Member

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    Don't need an agent to do a contract; can be privately between buyer and seller (usually represented by conveyancer/solicitor)
     
  5. Scott No Mates

    Scott No Mates Well-Known Member

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    1. You signed an agency agreement AND contract of sale with the developer. Did the sale fall over? Was it subject to an option? Why didn't this settle? I assume that this contract lapsed, so end of story. Agent likely to be entitled to commission for the introduction.
    2. A buyers agent approaches you for developer no. 2 (no commission is owed to the BA). Did you terminate the agent's agreement or leave it as continuing? Did you re-engage the agent since you keep using him to work on your behalf to get the deal with the BA completed? On what terms have you re-engaged the original agent? If he isn't acting in your interests, terminate his agency agreement.
     
  6. Scott No Mates

    Scott No Mates Well-Known Member

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    Are you trying to renegotiate with developer 1 or 2?
    You need to engage a solicitor to prepare the contract of sale (in this instance you will require legal advice on the conditions submitted by the buyer).
    Unless you have previously terminated the agency agreement you are still bound by the same conditions unless you sign a new agency agreement.
     
  7. ralph1

    ralph1 Member

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    Back again.
    Same developer headaches just different problems.Disregard the above question we have gone passed that now.

    The contract (might be called an option) the developer had with us expired 2 months ago and we have had no correspondence with the developer or there solicitors for many months. They still have a DA in at the council with our property on it and it doesn't look like it is going any further. The council will not discuss it with me as I am not the applicant.

    My question is if the developer has no legal right over my property, can he still have a DA on it and how can I get my property removed from the DA.

    Any help greatly appreciated.
     
  8. HD_ACE

    HD_ACE Game-Changer Premium Member

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    Didnt you sign the da before it was submited as you are the owner?
     
  9. ralph1

    ralph1 Member

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    No we only signed a contract with the real estate agent
     
  10. wylie

    wylie Moderator Staff Member

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    The DA attaches to the block doesn't it? So if he continues along the DA path you would benefit as owner (assuming the contract is now void).

    I cannot imagine he will push on the a DA over a block he is not buying. I would think you could just forget it?
     
  11. ralph1

    ralph1 Member

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    Yeah we aren't worried about selling it to the developer, we have forgotten about that. The part that concerns me is there is still a DA in at the council with our property on it. We still want to sell it but if we get a buyer and they do there searches they will see that it is under a DA, I don't think too many people would buy into that.
    Please correct me if I am wrong
     
  12. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    What was in your agreement with the developer about this?
     
  13. Beelzebub

    Beelzebub Well-Known Member

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    If the DA is approved and you don't have to sell to the developer then that would be a good thing wouldn't it?
     
  14. ralph1

    ralph1 Member

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    We agreed in the contract to allow the developer to lodge the DA. If it wasn't approved within 9 months from date of signing, the contract could and has been terminated. The contract signing was 11 months ago.
     
  15. ralph1

    ralph1 Member

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    The DA is no where near approved.
     
  16. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    So nothing further about the DA being withdrawn? If not I imagine the application would continue unless the applicant - the developer withdrew it.
     
  17. ralph1

    ralph1 Member

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    No nothing about being withdrawn.
    Does that mean there isn't much I can do about it until the developer decides they are ready.
    Is there a dead line or cut off date like 6 or 12 months from date of lodgement where it expires?
     
  18. Beelzebub

    Beelzebub Well-Known Member

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    My understanding is that if the developer's option has expired and council approves the DA you will then be able to market the property with a DA in place and potentially sell for a higher price.
     
  19. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    I don't know anything about this area of law. I think a DA will be either approved, or they will come back asking for changes or further info or they will decline it. It will then last for about 5 years or so and may then expire if the development doesn't occur.
     
  20. ralph1

    ralph1 Member

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    What are peoples thoughts on the scenario of if you are a buyer and you signed a contract on my property and did your searches and saw it was included in an active DA, would you ask more questions or would you run for the hills?