First things first, what does Settlement Delay mean? Settlements are delayed when either the buyer (the Purchaser) or the Seller (the Vendor) are unable to meet the Settlement day. Settlement day is probably the most important day in conveyancing. It is the date and time set by the Vendor in the Contract of Sale, for when the Purchaser will officially take legal possession of the property. On this day, your conveyancer meets with the Vendor and their representatives to make the final payment and exchange legal documents. It is the day for which both the parties eagerly wait. This is why, if there is any delay in settlement, it can be stressful for both personal and financial reasons.
Settlement Delays can be caused due to various reasons.
The top 3 reasons why settlements are delayed are:
- Bank Complications
- Late Documentation
- Final Inspection Issues
Whether you are a vendor or a purchaser, you must know your rights if your Settlement is delayed due to any reason.
While signing the Contract of Sale may feel like the relieving end of a long journey, it is actually just the beginning of the conveyancing process. Settlement delays in this process can be troublesome and inconvenient, especially when they are not because of you. As a purchaser, your rights in a delayed settlement will vary depending on the state you are purchasing in. As laws may change in time, it is advisable that you consult a professional conveyancer or solicitor throughout your conveyancing process. Our team at bytherules are here to help you.
If you’re buying a house in Queensland and the Vendor delays the settlement process, you can refuse to agree. Depending on the exact terms in your Contract of Sale, you may have the right to either wait for the vendor to be ready, or to terminate your contract. You also have the right to sue for damages, with an option to charge for the vendor penalty interest.
In Western Australia, the Purchaser are required to wait for 3 business days before they can charge for the seller penalty interest, as stated in the Contract of Sale.
New South Wales
If the Vendor wants to delay the settlement, the Purchaser has the right to issue a Notice to Complete, giving the vendor an extended time (usually two weeks), after which the Purchaser can terminate the contract and retrieve their deposit. However, usually the penalty interest is not payable by the vendor in settlement delay.
Like NSW, in Victoria, the Purchaser does not have the right to claim the penalty interest if the Vendor delays the settlement. However, they have the right to terminate the contract after a 10-day delay. Vendors in Victoria are generally open to offer a convenient solution to the buyer, like a license of agreement for early occupation.
Similar to the general rules of other states, Purchasers in Tasmania can issue a Notice to Complete, giving an additional two weeks’ time to the vendor to settle. Thereafter, the purchaser may terminate the contract and claim for losses incurred due to deferment.
Purchasers in South Australia are not obligated to agree to the settlement delay by the Vendor. The purchaser can issue a written notice, demanding the Vendor to rectify the delay within three business days. If the vendor fails to settle after that, the buyer has the right to impose penalty interest, as specified in the Contract of Sale.
In the Northern Territory, if the vendor fails to settle on the Settlement day, the purchaser may issue a written default notice and give them 10 working days to rectify the delay.
Again, these are general guidelines that may vary depending on your specific situation and terms and conditions of your Contract of Sale. You must discuss with your conveyancer for specific guidance.
Vendors usually have more benefits than the purchasers in Settlement Delay. Here’s what you can do if your buyer is causing delays in settlement:
In some states, you may give a three-day grace period to the buyer to allow them to settle within that time. If the buyer fails to settle after the grace period lapses, you make take more stringent actions.
Charge Penalty Interest
You may impose penalty interest for each day the settlement is delayed. This rate will depend upon your terms and conditions agreed upon in the Contract of Sale. Consult with your conveyancer on how to change this rate to the purchaser.
Issue a Notice to Complete (in some states only)
Some states allow the vendor to issue a Notice to Complete, which gives the buyer an addition 2-week period to settle. Thereafter, if they fail to meet the date, you may take a legal action and/or terminate the lease.
Terminate the Contract (and keep the deposit!)
When the purchaser fails to settle after all attempts, your last option is to keep the deposit (in some states) and continue possession of the property by terminating your contract.
Settlement delays and getting involved in legal courses of action can be stressful for both parties. It is important to carefully go through the terms and conditions of the Contract of Sale and get a thorough review of the contract by a conveyancer. Contact our team today on 1300223344 for an obligation-free review of your contract.