Real Estate asking buyer to pay for commisson

We signed a contract to purchase a property few months ago and the vendor after signing the contract decided he didn't want to sell anymore - this is after we paid our deposit and also paid for things like pest inspection, valuation etc.

It's been few months of back and forth and threats of taking the vendor to court etc but we finally decided to cut our loses and walk away. We signed a mutual contract rescind agreement (We have in writing an email from vendors lawyer that he didn't want to sell anymore) and the real estate was aware whole time that we were keen to go through the purchase and that the vendor wanted to pull out.

Now the real estate is refusing to refund our whole deposit money and want to take out their commission fee as the vendor is refusing to pay it.

Are they legally allowed to do this since we as the buyer never had an agreement about paying for commission? And if the vendor is refusing to pay this shouldn't the real estate pursue this further with them?

 

Sounds like they might play a bit free and loose with their trust account. Fair Trading may have some views on this. Maybe give them a call.

I'm sure others will chime in with more info.

 

You let the seller off the hook without getting your money back in hand? I'm surprised your lawyer let that happen.

 

No they can’t make you pay.

 

The Real Estate Agent holds the deposit on Trust for you as Purchaser, pending the completion of the Contract. You've signed a Deed of Mutual Rescission which I presume (hope) included confirmation that you are entitled to your deposit back and each party goes their own way. On that basis the Agent has no grounds to withhold release of your full deposit. If they want a commission from the Vendor (which they are probably entitled to, having sold the property), they should obtain it directly from the Vendor, not out of your deposit.

 

What has your conveyancer said to date? When will you change to a solicitor for legal advice?

 

Yes we aren't too impressed with our lawyer. The real estate has advised they will refund our deposit less the commission and our lawyer is saying to accept it and then sue them for rest.

That doesn't sit well with me as they have no right to take our money. Should we do what lawyer is recommending?

 

We have a lawyer now and she has told real estate they have no right to hold our money.

She is recommending to take real estates offer of our deposit less the commission and then sue them for rest

 

I'm not too sure if our lawyer included it in contract we will get our full deposit back. We just assumed we would as it wasn't our decision to back out of the purchase.

Could the real estate take commission out if above wasnt included?

 

You did not read what you signed or did not ask for an explanation or confirmation of the terms?

 

We didn't think there was any possibility of real estate holding our funds for their commission as I thought it's only the seller who pays commission.

 

Almost certainly yes. They're your lawyer after all.