Can not get the reservation amount back (house purchase)

Accomodation, House and Garden
1
Dear EFers

I could never imagine that here, in Switzerland, where all people I met were very honest, the thing like this can happen to me

We with my husband were trying to buy a house. After a long search, decided to reserve one (certainly with the intention to buy, we were thinking it over a long time). So, signed the reservation contract, payed the reservation amount.

After we were preparing ourselves for the purchase date (the day when we have to sign at a notary). There occured some problems - the owners pushed us to buy quickly and did not prepare the documents for the house which we wanted to see before purchase. And finally it even happened that my husband lost a job (that was a big shock for us, nor me neither he could guess that). Certainly under these circumstances we could not and diв not want to buy the house any more. We sent a registered post letter informing them that we changed our mind and dont buy any more.

Sooner or later we expected to get at least part of our reservation amount back. The agreement says: "Zurückziehen des Kaufinteresses

Im Falle eines Zurückziehens des Kaufinteresses wird ein Betrag in der Höhe

der angefallenen Kosten und Umtriebe einbehalten."

More or less that means, that we have to pay for the notary work and other expenses the owners really had preparing to the sale of the house. but the rest should be payed back !!! (and as far as I know, there expenses must be clearly declared)

What is really happening is that the do not answer our mails and phone calls The sent one registered letter a month after ours saying that they still are waiting the bill from the notary. And again for the month we have heard nothing from them.

I know that we can go to a lawyer, i even have a couple of contacts. But for me the situation looks so clear (i mean its obvious what everybody has to do in this situation). Do we really have to pay a lawyer to get our money back?

Many thanks that you have read it. I already feel better because have shared. And please, forgive me if i do not come back immediately, my little one requires a lot of attention

2
What's the time frame like? The bill from the notary may well take a few months to arrive, I've gotten quite a few bills months after services rendered..

3
This week will be 2 months since the day we officially refused to buy.

Oh, I did not know that it might take so long time for the notary to send the bill! Is there no any rule or law that notary is obliged to send the bill within let's say 1 month?

It's all happening in canton Aargau. I thought the notaries are civil servants there.. ( and maybe in the whole of CH)

4
I'm sorry to hear about this, but I think this isn't just a Swiss thing, this sounds like contract law wherever you are.

The important thing is to know what your subjectivities or 'loop holes' are when you first enter into the contract........ Once it is signed, you are bound to it whether you like it or not.

Finance clauses such as 'subject to suitable finance' are common practice, and may have protected you if you had lost your job etc....... but if that wasn't included (or even if it is permissible here) I doubt the seller will find that to be an excuse.

From what you say above, you may have a case if you can prove that the seller failed to supply the supporting documents you requested, but that will have to be clear in the contract....... so:

You've lost a lot of money.

Losing a little more to check where you stand legally may well be your best shot at recovering something.

Keep all the unreplied emails, however, the Swiss seem to LOVE a registered letter and this is what you may have to do.

Contact a lawyer.

5
Certainly, if no any other good idea comes to my mind these days, I will contact the lawyer.

Concerning the reservation contract here in Switzerland - I have seen quite some of them, for me it looks like the following.

1) you decide to buy, sign the reservation, pay the reservation amount to the owners ( or to the realty agency selling the property)

2) in the reservation contract there is always a section saying what will happen if you change your mind. And you can refuse to buy any time before you go to the notary to sign the sales contract. You are not obliged to explain the reason, you can just change your mind ( for example you found a better apartment)

3) ok, you changed your mind for whatever reason But in this special section it is said how much in this case you will have to pay to the owners and/or realty agency. Usually it's a fixed amount, for example 5 kCHF to each of them. But unfortunately in our case it was not fixed. I gave the German vote above.

It says that we should get all our reservation amount minus real expenses of the property owners.

That is my sad story..

6
I think 2 months is still wll within the time frame which you don't have to worry too much, but that's just my opinion. I know I've waited more than that to get rental deposits back, and our home purchase took ages from the point of transfer to when we actually took possession. Maybe someone else will chime in as this as pretty subjective, but in short, I'd give another month or two before I started getting concerned.

7
Although I can imagine that Real Estate Agents are equally as useless irrespective of the country they reside in....... surely the Agent is the best means of communication between the buyer and seller?

The Agent should also be able to tell you if you will receive the deposit back or not? (..... how long that takes of course is a Swiss thing?)

PD, you've bought a place here, what are the agents like to deal with?

(After all, the deposit is typically held in the Agents Trust account..... isn't it?)

8
Thank you! I think it's a good advice. Will probably come back to it a month after. I think what makes me worried is that there is no any mechanism which could make the property owners pay us back, just their own will or our lawyer.

But I should not create the problems, where there are no any. No any yet

9
It is not really clear from your posts how you've communicated with the sellers, other than the initial registered letter to inform them of your decision not to buy. Have you sent other registered letters that are being ignored? Have you sent a registered letter to the notary asking for the bill to be sent to the sellers? It may be that they really are waiting on the notary and then will add up expenses and send you a refund.

Throwing this question out there for those in the know - when putting in an offer, can the buyer put the reservation into a joint account (like you do for the rent deposit on a flat) so that they are not relying on the good graces of the seller to return the reservation if things fall through? Obviously won't help OP in this situation but maybe in the future??

10

All what you said is true. Except that in our case unfortunately it was a direct sale. The owners were selling without realty agency. I was mega unlucky and should not have even started it .. But it was really a house which we have chosen from dozens.. When you like something, you don't pay attention to the details like if it's sold directly or not

So, you see, sometimes realty agents are quite useful

11
In addition to several emails ( which are certainly not counted officially) a week ago we sent another registered brief reminding that we are waiting and pointing that 2 months already passed. They did to answer anything. And before we refused to buy, we had a super email communication with them ( quick answers, no problem). So I am just feeling being ignored. Maybe on purpose

12
Well I am sure you must know who the notary is. Why not call him and ask if he has sent an invoice and if not how long it will be. If you are saddled with half the cost then you have just as much a right to this information as the seller.

Also, don't expect the seller to be that friendly towards you. Let's face it, he thought he had sold his house and now he hasn't...he is pissed off big time, whatever your reasons are for backing out. And that is just human nature. In his shoes, I wouldn't exactly be jumping for joy either.

13
OK, so getting back to your original post...... when you say 'another' registered brief (letter), did you send the first registered letter WITHIN the contract period?

With a GOOD Lawyer, you may be able to prove that this was indeed a "Subjectivity" to the sale.

You requested initially,

Again (with the first letter),

and followed it up,

ALL without a reply

If you're lucky you could find the owners in "breach of contract" and be able to fully withdraw from the sale.

They would therefore have to fully reimburse you the deposit.

I'm not the 'Bomb' at this, but I've bought and sold a few places so I've had to learn some of the 'loop holes' the hard way.

As I understand it, there are a few 'legal documents' that have to be completed in order to transfer a property from one person to another (documents will differ from one country to the next... and probably from Canton to Canton as Switzerland seems to work).

As long as this is an agreement between a buyer and seller only, then EVERYTHING has to be arranged between them..... usually discrepencies occur and things go wrong, hence the use of an agent and Conveyance Solicitor on both sides tend to work around this for the best interest of both parties.

As I understand (experienced), The Real Estate has a trust account that holds the deposit from the buyer while the solicitors arange the details between the buyer and seller.

When the transfer date arrives, all monies (deposit, mortgage, whatever other input from the buyer) are all sorted out.

If you are in breach of contract, then the deposit is rightfully handed to the seller.

If on a 'one on one' sale like this is, I think you are at the mercy of whatever you have arranged....... which unfortunately doesn't seem to be much of an arrangement in this case.

In saying all this, I've found from most people's experiences that the seller is usually pretty lenient. In fact, this is only the second case that I've heard of where the seller has kept the deposit.

I think the seller is a bit of a 'snake in the grass' for not even providing the decency of replying to the buyer.

I REALLY hope this is not one of the 'scams' we hear about.

14
Actually, its a super advice (also mentioned by 3Wishes above). Dont know why it did not come tomy mind before. Will be my next step.

Concerning the feelings of the seller. You know, been there, was a seller myself. "Reserved" in the property world does not mean "sold" yet. Dont know exactly the statistics but sometimes people do refuse to buy. So, when one day I will be selling again, I will never think the deal is done, until its really done

15
I don't want to rub your nose into your problems but the above statement is based on nothing!!!

If you had not respected any agreements or the contract, or whatever, you would have run into the same problem (or worse) from agents (professionals who's goal is to profit on you, and will know their topic quite well).

For the rest, and to come back in the topic, are you sure you have not been

scammed? the guy's previous answer also suggests the same-

Did not quite understand the notary bits, but have you phone them? It seems the fastest solution...

16
Honest is rule#2 in Switzerland.

Rule #1, If you can f uck someone over legally, then do it.

17
Yep....... Well, that is what a 'deposit' is for, and this is the risk you carry when you sign a contract.

Sadly, I couldn't agree with you more Snoopy

18
From everything I know about my story, it is not the scam. To other questions I will answer later because have to take care of the baby.

Thanks to all participating here!

19
Don't really know what the contract period would be in this case. There is no any date specified in this agreement. The only thing can say is that we sent our registered refusal 10 days before the day when we had to sign at the notary.

I should not have mentioned here the reasons why we decided not to buy because it's not important at the moment. Yes, there were some documents missing, but it was not the only reason why we refused to buy. If only due to that, it was possible to postpone the purchase date and to require these documents. So, my intention is not to get the whole reservation amount back. Just the part which they really have to pay back.

For me till now it did not look like a scam. I think these people really wanted to sell their house. But we see how it goes further. Will keep you updated.

And again, big thanks for support

P.S. I am not sleeping in the middle of the night not because I am so upset with this matter. Just my little one decided that 3 a m is already the morning

20
Both 'bold' points above will be important to demonstrate to your Lawyer, so please make sure these points are clear.

1. No date basically means that you have an open ended agreement, and your contract should therefore still be in effect. Therefore your deposit should still be valid.

2. Again, only a Lawyer can tell you if this is suitable enough for a breach of a 'subjectivity' but it sounds to be within reason.

Nope, it's not, and I would advise that you keep that to yourself and not mention it on a public forum.

What is important is the contractual details and what you can exploit to recover some of your deposit.

Your other reasons may have little to do with the contract and will be otherwise irrelevant.

I would mention these things to the Lawyer, but don't be surprised if some of these things do not build into your defense.

It's one thing to to be a 'pissed off' seller that the buyer simply backs out of an agreement, but it's another when the seller has witheld information they agreed to provide as part of the contracted sale.

I wasn't actually serious that this might be a scam