Written by Penny Henderson – Partner (Relationships)
From time to time we deal with separating couples where there is a house to be sold and a reluctant party who does not want that to occur. This can be for a variety of reasons, perhaps they don’t accept the relationship is over. They may not want to divide the “empire”, knowing their life will be less financially secure. They may have no real means to move on. They might want to retain the property but in reality cannot afford to do so.
As real estate agents, you will know there is no point listing a property when one party will not sign documents to allow a sale to occur. It might be that they agree to the listing but then refuse to entertain offers received.
In these situations reasoning or negotiations through lawyers may not be successful and even the most skilled agent cannot get movement. We often see frustrated clients who believe there is nothing they can do. In such a case our advice is to apply to Court for a sale of the property (amongst other applications).
When we are drafting these applications we ask the client to get very specific information to support the application and convince a Court of the appropriateness of what is being sought. We ask them to go to their preferred real estate agent and ask for a marketing appraisal which, in addition to the usual information, includes the preferred mode of sale, the price that should be placed on it (if appropriate), and the likely range of sale price. If there are issues which need to be addressed before the property is placed on the market from the agent’s point of view then that should be noted as well. It can also be useful to have an idea of a reasonable rental for the property, in case occupation rental becomes an issue.
This information is crucial because the application will ask that the Court authorise the property going on the market with the agent who supplied the appraisal and in the manner they have suggested. The likely sale price range needs to be stipulated as well. This is because the Court will authorise the Registrar of the Court to sign the listing agreement, if the reluctant partner will not, and to sign any reasonable offer received in the range suggested by the agent, again if the reluctant partner will not. This follows on to signing transfer documents as well.
It is therefore important that the appraisal is well thought out and is realistic as to price. It will be going before a Judge, as well as seen by the other side. It is hugely influential.
If you or your clients would like to discuss applying to the Court for the sale of relationship property, please contact our relationships team, they would be happy to assist.
