{"id":6057,"date":"2015-10-15T01:00:14","date_gmt":"2015-10-14T14:00:14","guid":{"rendered":"http:\/\/realestatetalk.com.au\/?p=6057"},"modified":"2015-10-15T01:00:14","modified_gmt":"2015-10-14T14:00:14","slug":"how-to-avoid-being-gazumped","status":"publish","type":"post","link":"https:\/\/channels.realty.com.au\/realtytalk\/how-to-avoid-being-gazumped\/","title":{"rendered":"How to avoid being gazumped – Rob Balanda"},"content":{"rendered":"

In today’s show our good mate and solicitor\u00a0Rob Balanda<\/strong>,\u00a0from MBA Lawyers,\u00a0has some great advice on how to avoid being gazumped and in true Rob style he gives us a negotiation tool – not just a way to avoid being gazumped.
\n <\/p>\n

Transcript:<\/h4>\n

Kevin<\/b>:\u00a0 You may or may not have heard of the term gazumping. Probably, you might have if you\u2019ve been in real estate or you\u2019ve been around real estate people. Let\u2019s find out what gazumping is because there may just be a way around this. While it doesn\u2019t apply in all states of Australia, it certainly does in the two major states of Victoria and New South Wales, which is where a lot of our listeners reside.
\nRob Balanda from MBA Lawyers joins me. Rob, firstly, let\u2019s get an explanation about what gazumping really is.
\nRob<\/b>:\u00a0 A seasoned investor in New South Wales would probably think that was a strange question to ask because they know only too well. They\u2019ll have probably been burned a number of times.
\nIt\u2019s Jewish. It\u2019s a Yiddish term. It means, essentially, to over-charge or to cheat. Basically, what it means is when you think you have secured a property by signing a sales note in Victoria or in New South Wales, you think that property is now under your control \u2013 it\u2019s off the market \u2013 but while your solicitor is negotiating with the seller\u2019s solicitors to do the little ceremony called exchange of contracts, which takes place in three or four weeks after you exchange sales notes, the seller is like the prettiest girl in the class at school \u2013 if I can put it this way, Kevin \u2013 and is negotiating with two, three, or more other people to sell the same property to.
\nKevin<\/b>:\u00a0 Which school did you go to?
\nRob<\/b>:\u00a0 It wasn\u2019t an all-boys one, mate.
\nKevin<\/b>:\u00a0 Obviously not.
\nSo that\u2019s gazumping. It\u2019s still fairly commonplace, isn\u2019t it?
\nRob<\/b>:\u00a0 I was talking to a chap at Byron last week. He was lamenting to me and complaining that he\u2019d just put in two offers and been gazumped on two of them that week. His question to me was, Kevin, \u201cHow can I avoid this happening to me a third time this week?\u201d
\nKevin<\/b>:\u00a0 I understand you do know that there is a way around this. What is it?
\nRob<\/b>:\u00a0 Yes. It\u2019s not rocket science. What you need to do is remember the process in the two big eastern seaboard states is you start with a sales note, then your solicitor does all the searches of the property, all the due diligence, and then three or four weeks later, they sign off on the terms of the contract with the other solicitor, and you have an exchange of contracts.
\nIn the big resource states, Western Australia and Queensland, that\u2019s the same position we\u2019re in when you make an offer. You make them in those two states via a live active contract, which once accepted, that is the same position you\u2019re in three or four weeks later in New South Wales when you actually exchange contracts.
\nWhat you basically need to do is move to that Western Australian\/Queensland position as soon as you possibly can. Don\u2019t do all the searches and checks and due diligence before you exchange because in that three- or four-week period, that\u2019s when you can be gazumped. You can have the seller double dealing you, triple dealing you, even.
\n\u201cHow do you protect yourself, then?\u201d is the question. You\u2019re going to instruct your solicitor to exchange contracts now. Don\u2019t do the searches. Do them as we do them in Queensland and Western Australia \u2013 after the event. You exchange contracts subject to a little clause, just subject to a due diligence. Then that way, your conveyance and solicitor can do the searches after you\u2019ve exchanged. That way, you\u2019ve taken the property off the market, and you cannot be gazumped.
\nKevin<\/b>:\u00a0 Rob, it only just occurred to me that this could be one of the reasons why auctions are much more popular in New South Wales and Victoria. If you buy a property at auction there, it is unconditional. You\u2019re not going through that sales note process.
\nRob<\/b>:\u00a0 Yes, and you can\u2019t be gazumped. You can\u2019t lose the property. You can\u2019t be Dutch auctioned either. Yes, I agree with you, Kevin.
\nKevin<\/b>:\u00a0 Because in Queensland, when you buy a property, as you indicated, and you sign a contract, once that contract is signed by both parties, it\u2019s a formed agreement. You can\u2019t be gazumped.
\nRob<\/b>:\u00a0 No. The only person who can pull out after you\u2019ve done that is you, the buyer. You control it.
\nBut you get push back, though. Even when I talk to solicitors in these other states, they push back and say, \u201cOh, no. You can\u2019t do that down here.\u201d Well, in fact, you can. There\u2019s no legal reason why you can\u2019t instruct your solicitor to exchange contracts now subject to a due diligence; it\u2019s just that they don\u2019t usually do it with residential purchases.
\nKevin<\/b>:\u00a0 Why is that?
\nRob<\/b>:\u00a0 That\u2019s because in between the sales note and the exchange of contract, they do all the searches. They apply for finance. They do the pest and building inspection. There\u2019s no need, usually, by the time you get to exchange of contract stage in those two states that have any subject-to clause, they\u2019ve all been satisfied. But there\u2019s no reason why you can\u2019t do it.
\nIn fact, in New South Wales, you quite often see commercial contracts that are a little more complicated. They, quite often, are subject to a number of due diligence requirements, subject to a DA, subject to a feasibility, subject to securing other partners to bring them into the deal, this sort of stuff. It\u2019s common enough with commercial and industrial sales in New South Wales. It\u2019s just a mindset.
\nKevin<\/b>:\u00a0 Yes. In New South Wales and Victoria, if you do what you\u2019re suggesting, which is put the due diligence clause in there and exchange the contracts, you\u2019re effectively forcing the solicitors to do the type of transactions that are done in Queensland, which are almost on-the-spot contracts.
\nRob<\/b>:\u00a0 Yes, and there\u2019s a couple of hundred years of history reasons for the resistance. You can see why they push back. They just don\u2019t feel comfortable. It\u2019s not the status quo.
\nBut as an investor, you have to stop yourself being gazumped. If this happens to you once and even twice, it will burn you. It will leave you with a nasty taste in the mouth. It will cost you that opportunity. You will have missed out on the property. It might have cost you a thousand or a couple of thousand in legal fees and due diligence inquiries and stuff \u2013 all just thrown away.
\nThe sales note to you as an investor doesn\u2019t give you even a fig leaf of security against the risk of being gazumped. You have to get to exchange of contracts as soon as you can. If you do that, subject to a due diligence, you protect yourself. It\u2019s just a matter of telling your conveyancer that\u2019s the terms of your offer.
\nKevin<\/b>:\u00a0 But, Rob, what if you get push back through the agent from the seller saying, \u201cWell, we don\u2019t want that period of uncertainty?\u201d
\nRob<\/b>:\u00a0 They\u2019re still in a lot better position than they would be, Kevin, if they waited, signed the sales note, and waited for you, the buyer, to do all your searches for the next three or four weeks, and then exchange. Something could come up in the searches. The buyer can come back in that three or four weeks before exchange and even attempt to rewrite the whole deal.
\nI\u2019d be pointing out to the seller, if you sign up now, subject to a due diligence, at least we\u2019ve nailed the big ticket items \u2013 the price, the deposit, the settlement date. You\u2019re in a lot better position as a seller signing up subject to a due diligence, rather than waiting for another three or four weeks for the buyer to carry out their searches.
\nKevin<\/b>:\u00a0 I would take it that that due diligence clause is going to be somewhere inside that excellent book of yours, which is called \u201cClauses Made Simple.\u201d
\nRob<\/b>:\u00a0 Yes, Kevin. Thank you, and which you can acquire by going to my website, ClausesMadeSimple.com, and there are many more other helpful clauses.
\nKevin<\/b>:\u00a0 There are, indeed. I\u2019ve been talking to the author of that book, none other than the one and only Rob Balanda from MBA Lawyers.
\nRob, thanks for your time.
\nRob<\/b>:\u00a0 Thank you, Kevin.<\/p>\n","protected":false},"excerpt":{"rendered":"

In today’s show our good mate and solicitor\u00a0Rob Balanda,\u00a0from MBA Lawyers,\u00a0has some great advice on how to avoid being gazumped and in true Rob style he gives us a negotiation tool – not just a way to avoid being gazumped.   Transcript: Kevin:\u00a0 You may…<\/p>\n","protected":false},"author":176692471,"featured_media":4498,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,13,25],"tags":[101],"class_list":["post-6057","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-kevin-turner-sponsored-channels","category-latest-story","category-sponsored-channels","tag-podcast"],"yoast_head":"\nHow to avoid being gazumped - Rob Balanda - Realty Talk<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/channels.realty.com.au\/realtytalk\/how-to-avoid-being-gazumped\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"How to avoid being gazumped - 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