In reply to A newbie all over again! by Annec
In reply to A newbie all over again! by Annec
[QUOTE=slwhalley]Hi There,
We are just about to sign the 'Preliminary Agreement of Sale' next week but wanted to add a condition to the agreement. We wanted to state that should we fail to get our mortgage, the deposit we paid would be returned. I have read in books that just to be on the safe side add this clause.
Our agent has now told us this cannot be added. Has anyone experienced the same thing, can this be done or is it just that they wont?
We feel confident the mortgage will be sorted but you never know and we could loose a great deal of money.
Sarah[/QUOTE]
There is no legal reason or law banning the condition you want to add, so you can insist.
As Aliena wisely said, the problem might be the vendor, because he/she could not accept it.
He [B]might [/B]say:
mortgage is your problem, if you're not able to pay do not buy at all, why should i be bound, while you're free to abandon the negotiation ?.
In reply to A newbie all over again! by Annec
If the seller dont want to accept you could use the deposit you paid at the signing of the Proposta as negotiation exchange. You'll get back the deposit of the Preliminare (20%?) and lose the deposit of Proposta (1%)
In reply to A newbie all over again! by Annec
Sarah
As Notaio has already confirmed, that there is nothing under Italian law that prevents you from stipulating conditions in the preliminary contract so you need not worry. If you are uncertain then get legal advice.
I would add that there is in fact, a provision that allows the parties to freely determine the contents of the contract within the limits imposed by law. I disagree with David M’s opinion since there is a contractual principle that can be used to render the contract ineffective (although it may be valid) should a specific condition remain unfulfilled. The condition must be precise, however, or otherwise it may be considered void.
On this basis therefore, if your condition is not fulfilled, then the contract becomes ineffective and you are entitled to get all of your deposit back.
Send me a PM is you would like some more clarification on this matter.
[quote=slwhalley]Hi There,
We are just about to sign the 'Preliminary Agreement of Sale' next week but wanted to add a condition to the agreement. We wanted to state that should we fail to get our mortgage, the deposit we paid would be returned. I have read in books that just to be on the safe side add this clause.
Our agent has now told us this cannot be added. Has anyone experienced the same thing, can this be done or is it just that they wont?
We feel confident the mortgage will be sorted but you never know and we could loose a great deal of money.
Sarah[/quote]
Sarah,
You can and must insist on it being added. You should also seriously consider using a solicitor and not relying on your agent. You will find many discussions of the pro's and con's of solicitors on this forum and a few recommendations. Depending on the value of your property, a solicitor is going to cost you no more than 2,000 euro and believe me it's worth every penny (ours saved us more than they cost so it was definitely worth it!). I'm quite happy to give you the name of Italian solicitors based in the UK if you want to send a PM.
Brendan