Withholding a deposit…?

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This topic contains 6 replies, has 5 voices, and was last updated by Profile photo of Anonymous Anonymous 9 years, 10 months ago.

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  • #52556
    Profile photo of Anonymous
    Anonymous
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    I’ve just been contacted by a friend who thought he’d sold his property to a young Spanish couple, but they have not been able to obtain a mortgage which they would be able to meet the monthly payments.

    The contract he signed stated that if a mortgage wasn’t possible then he would return the deposit, yet if he pulled out he would have to pay double.

    I’m thinking that this type of contract would be void as it’s not equal for each party and more in the favour for the buyer.

    Would he be within his right take on a lawyer to fight his case or should he just return the money and hope for another sale soon, which is what I’ve said to him, as the deposit is only a small % and it’s better to have good respect in the village.

    Anyhow I can’t believe an agent did that in the contract.

    Ian

  • #68370
    Profile photo of Anonymous
    Anonymous
    Participant

    I’m not a lawyer but am aware of several similar contracts. However, the wording made it clear that this would apply if a mortgage couldnt be obtained on the property, rather than the buyers not meeting the relevant criteria. It probably depends on the wording of your friend’s contract, as to what he HAS to do, rather than what he feels he should do. I have seen and heard of all sorts of strange clauses in similar contracts, all agreed by the vendor, possibly because they knew everything was ok.

    getting a lawyer could cost all if not more than the deposit, so nothing gained, but as you suggested he’d lose either way with local respect . If he can get a good (cheap) proper legal opinion, it may be worth investigating further. Maybe the lawyer members can help with this one.

  • #68371
    Profile photo of Anonymous
    Anonymous
    Participant

    Hello Ian. I think this clause is used ++. I paid a deposit on a property in Spain over 5 years ago & then the seller said he decided “not to sell after all”. Through the lawyer I had at the time I got my deposit back but the contract stated that if the seller pulled out for any reason he should pay deposit back X2. My lawyer said I wouldn’t get it & was of no further help to me 😈 😈 so I fought him on my own & he paid up! It just about covered lawyers fees & expenses. I later found out he’d sold to someone else while holding my £ ❗

  • #68373
    Profile photo of Anonymous
    Anonymous
    Participant

    I think my friend has been up all night, this morning I had a flood of emails from him, he’s not a happy chappy!!

    The wording was:
    9. La parte vendedora responderá de la evicción y saneamiento conforme a derecho, manifestando la parte compradora conocer el estado actual de conservación de la edificación del presente contrato.

    En el caso concreto de que la venta no se procediera por no concederse el préstamo hipotecario por el valor necesario acordado de XX€, la parte vendedora deberá devolver la cantidad entregada por la parte compradora en su totalidad, en este caso concreto XX€ de reserva.

    Email from agent:
    Por la presente le comunico que la firma programada para el día 29 de
    Diciembre queda aplazada para mediados del mes de enero del 2.007 por un problema que tiene el comprador en cuanto a las condiciones económicas de la hipoteca.

    No hay ningún problema con la operación de su casa solo que el comprador ha preferido una hipoteca a 40 años en vez de 30 años como la tenía ofertada, y para ello necesitamos alrededor de 15 días para su ejecución. Sin otro particular, un saludo.

    (In short: saying the signing cannot take place on the 29 Dec as the buyer wants a mortgage with better conditions, mainly an offer of a 40 year and not 30 year mortgage.)

    Another email:
    Estamos esperando la confirmación de **bank2** para esta tarde en un plazo de 35 años y nos sirve la misma tasación que para la **bank1**, pero de cualquier forma recuerda que la hipoteca la tenemos aceptada por la **bank1**. El único problema que puede existir por Bank2 que necesitemos un poco más de plazo para la preparación de la hipoteca. Bueno esta tarde te llamo y te diré algo más concreto.
    un saludo.

    (In short: The agent says they are waiting for confirmation from bank2 for a 35 year term, but they have been accepted by bank 1 and need more time to arrange with bank2 the mortgage.)

    Ian

  • #68375
    Profile photo of Anonymous
    Anonymous
    Participant

    well the wording re mortgage is very brief and unspecific so would seem to cover any reason for the non-availability of said mortgage. However nothing in what you’ve copied states that the deal is not ongoing,just delayed. Has the time limit now been exceeded? If so I believe the contract would have been breached and he could keep the deposit, however, if they can get a mortgage but it just means a short delay, it’s worth holding on and extending the time limit as it is a sale, and it would otherwise mean starting the procedure all over again,and possibly through another agent as this one wont be too happy if the sale falls through.
    Extending the date on the contract is quite common, as many friends have had probems completing on time, mainly due to the vendors defective paperwork, but all has been amicably resolved and dates exteended without problems or animosity. Of course there are some instances where the contract has been strictly enforced, but there was something fishy about each of these deals anyway, and the vendors were definitely less than honourable!

  • #68376
    Profile photo of Anonymous
    Anonymous
    Participant

    @ian_ok wrote:

    I’ve just been contacted by a friend who thought he’d sold his property to a young Spanish couple, but they have not been able to obtain a mortgage which they would be able to meet the monthly payments.

    The contract he signed stated that if a mortgage wasn’t possible then he would return the deposit, yet if he pulled out he would have to pay double.

    I’m thinking that this type of contract would be void as it’s not equal for each party and more in the favour for the buyer.

    Would he be within his right take on a lawyer to fight his case or should he just return the money and hope for another sale soon, which is what I’ve said to him, as the deposit is only a small % and it’s better to have good respect in the village.

    Anyhow I can’t believe an agent did that in the contract.

    Ian

    ?

    If your friend signed this contract then it’s binding unless they put a gun against his head and forced him to sign it which -presumably- was not the case.

    The contract is completely biased towards the spanish couple. Your friend will have to pay back the deposit if they fail to obtain a mortgage. No need to hire a spanish lawyer now, it’s too late and the matter is clear. Your friend cannot withhold their deposit should they fail to obtain a mortgage.

  • #68381
    Profile photo of Anonymous
    Anonymous
    Participant

    Surely if they can’t get a mortgage as they can’t afford to pay it is a different case to if they can’t get a mortgage as the bank takes one look at the house and values it at 50,000 euros less than the asking price, or refuses as the building is not a good investment…is it worth trying a different spin on things?

    The estate agent didn’t think it was worth checking that this couple could afford to buy the house in the first place then before taking their deposit?

    Good luck!

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