Often, I am contacted by one spouse about a property transaction such as the purchase or sale of a family home. Sometimes, that spouse is surprised when I say that I have to speak to the other spouse to confirm the instructions to buy or sell. That caution is justified by the recent decision in Jarjo v Patterson [2022] NSW 1049.
That case involved a husband who not only negotiated the sale of a property owned jointly with his wife but he signed the Contract on her behalf. The only problem was that the wife didn’t know about the sale! The agent never had any contact with the wife throughout the sale process and he even signed the Contract as a witness to the signatures of the husband and wife.
After the property had been sold to purchasers, the wife sought to cancel the transaction. The Court did so on the basis that the purchasers could not establish that the husband had any authority to sell his wife’s interest in the property
This decision highlights the need for professionals involved in the sale of a property by spouses, be they agents or solicitors, to meet all the clients involved as early as possible. And if a solicitor cannot verify after exchange of Contracts that all the parties he or she is acting for willingly signed the Contract then they are best advised to cease acting in the matter.
December 2022