It is not uncommon for parties to a contract to the sale of land to have a dispute about its operation and meaning especially if the contract is “subject to” a condition being fulfilled. Recently, new legislation was introduced to deal with unscrupulous developers who seek to rescind a contract for an off the plan purchase where registration failed to occur by the sunset date. In such cases, where the purchaser does not consent, the vendor may need to approach the court on an application for leave if it wishes to rescind. This type of property dispute is becoming more common and is often resolved outside the courtroom often with the help of an experienced litigation lawyer.
Understand the issue
Make sure that you fully understand the nature and the cause of the dispute that you are dealing with. You should get a professional view about the facts and circumstances of your case to determine its merits. If you unreasonably withhold consent to a contract being rescinded then there may be cost implications where such costs could be substantial.
Get the relevant documents
An important aspect to appreciate from the get go is the need to have the right information available. Usually a vendor would need to disclose the reasons why it needs to rescind and provide the particulars in support of that position. If the reasons are unsatisfactory it may be that you need to make further requests for information from the vendor or perhaps approach 3rd parties such as the relevant Council to ask for information regarding the development consent.
Without prejudice discussions with the other party
If it looks likely that the matter is escalating you should consider having a without prejudice discussion with the other party to try and resolve your differences. More often than not if such discussions are approached in the correct fashion and expensive dispute can be avoided. This of course will require you to clearly articulate your position, appreciate the perspective of the other side and be sensible about compromising your rights insofar as you are comfortable.
When to consult a litigation law firm
Once it is clear that you cannot resolve your dispute without the help of lawyers the time has come for you to get legal advice on the matter. Ideally, you should approach litigation solicitors who have relevant experience with property litigation so that you can obtain sensible advice early on and within an appropriate budget.
Go to court
If you are the vendor in a matter involving your right to rescind an off the plan contract where the purchaser does not consent you may need to approach the court. Usually a vendor would write a letter of demand to the purchaser seeking its consent to rescind under threat of litigation if such consent is not forthcoming. There may even be without prejudice offers by both parties to try and entice the other into settling the dispute. If all else fails it will be necessary to file a summons seeking the permission of the court to get out of the contract (assuming your property dispute is in New South Wales, Australia). Ultimately, you should get legal advice before doing anything as it may prejudice your position if you act before being informed about your rights.
