Do I have grounds to pull out

FKH

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http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/ad013f7b541fa33180256f55004273bb?OpenDocument

Interesting case that went to the Supreme Court, the idea of "time of the essence" was discussed with regard to a special condition in the contract regarding planning permission being granted before a certain date. The SC held that time of the essence related to completion of the sale and not compliance with a condition in the contract.

In my opinion:

In DUB1's friend's case there could be no completion date fixed until the property has been built. The builder could not ask her to buy an unfinished property so the building agreement is unenforceable by the builder until he has built the property. After the 18 month time period expires, I believe that the agreement can be rescinded if the builder has failed to comply with the condition to build the property within 18 months. Again it is only my legal opinion on the matter and ultimately a court will have to decide these cases, once the first one is decided it will set the precedent really but I would argue that the principles in O'Connor -v- Coady apply.
 

dub1

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Hi. Thanks for that. I will pass what you have said on to her. Any chance that you might know of a previous case that went to court that is similar to my situation
 

FKH

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I'm afraid not, I think you need to hold out with this one and not close though.
 

foxylady

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Hi GWLADYS ST. I dont envy your situation. Coincidentally aI only spoke to a girl in work yesterday who is in your exact situation. Her builder went over the 18 months(she was hoping this would happen and was even willing to forego her deposit aswell). Her solicitor told the builders solicitor that they now wanted her deposit back. She then got a call from the estate agent offering her a substantial discount, which she refused. The builders solicitor then said that they were going to force them to close. Her solicitor ran this by a barrister(at a cost of approx €1000) and he came back to say that the 18 month timescale in the contract basically means nothing as there is something called essence of time in the contract which gives the builder more time(i dont understand this at all. Why even mention 18 months in the first place). He said that she has a weak case and that worst case scenario she would have to pay all legal costs for both sides and the builder will still have grounds to make her close. I find it incredible that there seems to be so much protection for builders and the consumer is left so vulnerable. I would have thought that this was a black and white situation here, but apparently not. To an extent I blame the solicitor. It wasnt until he ran this by the barrister that he realised that this was in her contract???.So what will your next step be
What has your friend done since. I am in almost identical situation and have been advised to go to court to get deposit back but if not successful will have to pay possibly 5 times the deposit :(
 

dub1

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Hi. She had a long meeting with her solicitor who basically told her that she needs to make a decision as to whether she wants proceedings issued or not. I think that she has found, as I have with my situation, that alot of solicitors really dont seem to know that much about getting out of these type of situations. It seems to be the barristers that they refer the cases to that give the real advice(at a cost of approx €1000). The barrister had said that she had a weak case because of the essence of time thing but she has now spoken to another barrister who is a friend of her fathers who is going to run it by a colleague of his and then help her to make a decision(she should have used him in the first place and saved herself the €1000 fee that the other barrister that the solicitor used charged her). He is to come back to her next week. She is 100% adament that she will not proceed with the purchase though. I will let you know what advice she gwts from this other barrister.
 

PaddyBloggit

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Hi. She had a long meeting with her solicitor who basically told her that she needs to make a decision as to whether she wants proceedings issued or not. I think that she has found, as I have with my situation, that alot of solicitors really dont seem to know that much about getting out of these type of situations. It seems to be the barristers that they refer the cases to that give the real advice(at a cost of approx €1000). The barrister had said that she had a weak case because of the essence of time thing but she has now spoken to another barrister who is a friend of her fathers who is going to run it by a colleague of his and then help her to make a decision(she should have used him in the first place and saved herself the €1000 fee that the other barrister that the solicitor used charged her). He is to come back to her next week. She is 100% adament that she will not proceed with the purchase though. I will let you know what advice she gwts from this other barrister.
What does she stand to lose by walking away?
Can the builder come after her for doing that?
 

dub1

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she could lose her €20000 deposit. But ultimately(as per the initial advice that she has got) she could lose this along with all legal costs(for both sides) and the builder can then force her to proceed with the purchase at the full price(she was offered a reduction of €50000 but was still not intrested). The thing is that at this stage her mortgage approval is more than likely up. She would have to apply for a new mortgage. At this stage she seriously doubts that she would get this. Where that would leave her I dont know as the contract is not subject to mortgage approval. Thats a good general question, if people can no longer get the mortgae that they were originally approved for where does that leave things legally. I will let you know what advice the other barrister gives her later on next week.
 
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mercman

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dub1, Has anything happened in your case ??????

Concerning your friend, I am unable to see her reason as to why she is adamant that she does not want to complete. If the house has been built correctly and has been offered a starting €50 k discount, surely she should go back looking for a larger discount. There is not a hope in hells chance of any court siding with a purchaser to withdraw simply because the market has gone down. If this was her own personal home, she might be better renegotiating the deal and living with it before the whole matter breaks her financially and emotionally.
 

dub1

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i'd have a tendency to agree. But her personal circumstances have changed so I suppose when the 18 months on her contract expired and the property was not finished then she saw this as a chance to get out of the contract. Its not black and white hence the reason why this other barrister wants to run it by a colleague before advising her accordingly. I think its a disgrace though. An 18 month time frame is put into a contract and then this whole time of essence essentially extends this. Its like my own situation. I vie a place in Feb and am told thats its just ready. 9 months later and there are all these problems with it. But because I only signed contracts in May this could mean that the builder could technically sit on his backside for the next 12 months until the 18 months is up. It seems to me that there is little protection there for purchasers
 

FKH

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Be interesting to see what the other barrister thinks. It's not a black and white area and is open to interpretation depending on the amount of time of the delay, the reasons for the delay etc. A delay of a week might be too short, a delay of 3 months might be too long and I don't really think anyone knows the full answer. Even the legal texts on conveyancing don't have definitive answers.

Story in the Times about builders suing.

http://www.timesonline.co.uk/tol/news/world/ireland/article5213789.ece
 

dub1

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intresting article. I think my friend was only about a month away from the house being ready so Im really curious to see how it works out. My own situation is completely different. Im meeting with the solicitor on Thursday. I think that we are probably going to be advised to formally pull out. No doubt we will have a fight on our hands with the builder
 

dub1

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I met with my solicitor today. Before the meeting he had called the engineer and had a long conversation. The long and short of it is that he said that there is no way that we can proceed with this. he said that neither himself or the engineer could or would advise us to do so. The engineer said that there were certain issues wrong with the house that just cannot be fixed. He said that the builder will probably put up a fight and that it could be a long drawn out process. Anything up to 18 months. But at the end of the day this IS NOT a case where we are trying to get out of a contract just because the property may not be worth as much as it was when we purchased it. Its a home that we are planning on living in for years to come. So for now I dont know where that leaves us. Do we start looking for some where else in a few months if this drags on????
 
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mercman

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Now dub1. at last you are making progress. Both the solicitor and engineer are advising you not to proceed. I would say you will need to appoint a bloody good barrister to fight your corner, so to speak. I use a Junior Counsel named Hugh O'Keefe that is excellent (an expert) in Property Law. I suggest you ask your solicitor to get in touch with him ASAP.
 

dub1

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Thanks for that. I think that the solicitor is goint to run it past a barrister friend of his that is well up on property. He said that it'll be more of in a casual way so to speak at first so there will be no cost. Is that guy that you reccomended really good. I'm feeling relieved . Only because the decision was made for us at the end of the day and we wern't left in a scenario where we got advice from the solicitor and then had to make a choice ourselves
 

dub1

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by the way does anyone have any idea whtat legal costs I am likely to incur here. It didn't get to that stage in the discussion with the solicitor today
 
M

mercman

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The fella I mentioned is excellent. Knows his stuff backwards, and gets into the case, not just mouthing off. He is a Junior Counsel, and I have used him where he has been up against Senior Counsel and ripped them apart. I have no connection with him other than I have used him a number of times and have won all my cases. I would not recommend him if he was shaky.
 

dub1

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I'll mention him to my solicitor. Can you send me on his contact details(or is it a case that my solicitor will probably know of him already). Regarding my question about legal costs would you have any idea. Also if its a case that the builder has breached planning as well as building regulatios(that can not be fixed according to the engineer)and the dampness issue is still major and all the other problems on top of this, do you think that he will make this difficult and fight us on this or do you think that his solicitor will advise him not to. probably an impossible question to answer I know
 
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mercman

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I will PM his details tomorrow as they are in my office. I would say the costs will be charged on the type of case basis, but they are obliged to provide costs estimates before been instructed. In relation to the defendant, the Builder I am not sure is he a small or large builder. However they are all under the same financial constraints and he might not have the money to fight you or his solicitor might refuse to take on the case, especially if he thinks there may be some element of getting paid.
 

Bronte

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I met with my solicitor today. Before the meeting he had called the engineer and had a long conversation. The long and short of it is that he said that there is no way that we can proceed with this. he said that neither himself or the engineer could or would advise us to do so.
This is great news Dub1. There is no way you should purchase that house. Now for the bad news, it will probably take a long time to get the deposit back, I would advice you to keep renting until this case has been decided. You need to be sure of the court decision before you proceed in any other house purchase. Please keep us informed as to how you get on and don't forget there is no point going after someone (company) with no assets, it's not currently the case here but the builder might decide to go out of business.
 

FKH

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Good luck dub1, hopefully issuing legal proceedings against the builder might spark some action on his part and he will see sense and give you back your deposit.
 
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