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| Balvinder Kumar |
ismagilov: ISTOCKPHOTO.COM
1. The buyer’s demand for a guaranteed insurance amount went beyond the scope of the agreement and amounted to variation of its terms that the seller was not obligated to accept.
2. Specific performance as an appropriate remedy could be considered as the property was a century home on a mature rural acreage and the buyer being a contractor specializes in century home restoration. However, the fire destroyed the property and its unique qualities. Specific performance would merely transfer the property with the insurance proceeds. The buyer could not explain how the monetary damages were insufficient.
2. Specific performance as an appropriate remedy could be considered as the property was a century home on a mature rural acreage and the buyer being a contractor specializes in century home restoration. However, the fire destroyed the property and its unique qualities. Specific performance would merely transfer the property with the insurance proceeds. The buyer could not explain how the monetary damages were insufficient.
As such, the buyer was not ready, willing and able to close the transaction to its original terms and repudiated the agreement.
Ali et al. v. Patel et al., 2024 ONSC 3505: The buyer made an unconditional offer to purchase the sellers’ property. The vendor sent the signed offer back with the addition of a notation on the first page of the agreement indicating that the agreement now includes a Schedule B. The sellers required the buyer to initial the change to the offer and sign the Schedule B. There was no irrevocable date proposed. The sellers believed the deal existed. The buyers changed their mind and did not sign the revised documents and Schedule B. No deposit was made. Parties did not sign a mutual release or a termination agreement. The seller relisted the property and sold it for $25,000 less than what the offer was from the buyers. The issue before the court was to determine whether the addition of Schedule B with the revised offer and requiring buyers’ signatures and initials created a binding agreement or a “counteroffer.” The court ruled in favour of the buyers and held that the returned agreement with Schedule B was a “counteroffer,” which was not accepted or signed by the buyers. The court finds no meeting point of minds of the parties.
As such, there was no binding agreement between the parties.
Taheripouresfahani v. Dormer Bond Inc., 2025 ONSC 5833: The buyers purchased a pre-construction condo, completed occupancy with monthly occupancy payments. The buyers moved into the unit making the monthly occupancy payments. Final closing date was set. Final statement of adjustments issued with additional charges totalling $60,000. Buyers disputed these charges being unauthorized and sought clarification. The seller refused but agreed to credit the buyer a partial amount on the condition that the buyers will close. This did not happen. Three issues came before the court:
1. The buyer is entitled to proof of the amounts contained in the statement of adjustments. The court analyzed the categories contemplated by the APS or any other contract between the parties and whether the amounts claimed by the seller are consistent with the APS. The court found that three of the categories on the statement of adjustments were authorized by the APS, but the seller did not provide proof or any supportive documentation of these charges.
2. The seller wanted to close for more than the agreed purchase price that was unjustified and unauthorized. Seller’s demand for additional charges is an anticipatory breach of contract. Buyers were under no obligation to tender or present a cheque for disputed amount. The buyers kept the deal alive by seeking clarification or an amendment to the SOA. The seller breached the APS by insisting that the buyers agree to an unjustified increased purchase price. The buyer is entitled to the return of the deposit.
3. APS requires that the buyer must vacate the unit within 30 days if the agreement cannot be completed. The buyer did not vacate the unit and stopped paying occupancy fees. The buyers claim for general damages, unauthorized entry and frequent trespass on the unit by the seller lacked evidence. Seller is thus entitled to regain possession of the unit plus occupancy payments from the last post-dated cheque until the date of the decision.
2. The seller wanted to close for more than the agreed purchase price that was unjustified and unauthorized. Seller’s demand for additional charges is an anticipatory breach of contract. Buyers were under no obligation to tender or present a cheque for disputed amount. The buyers kept the deal alive by seeking clarification or an amendment to the SOA. The seller breached the APS by insisting that the buyers agree to an unjustified increased purchase price. The buyer is entitled to the return of the deposit.
3. APS requires that the buyer must vacate the unit within 30 days if the agreement cannot be completed. The buyer did not vacate the unit and stopped paying occupancy fees. The buyers claim for general damages, unauthorized entry and frequent trespass on the unit by the seller lacked evidence. Seller is thus entitled to regain possession of the unit plus occupancy payments from the last post-dated cheque until the date of the decision.
Takeaways
Time is the essence — real estate transactions are strictly contractual.
Meeting of minds — parties must close on original terms unless parties agree on new terms.
Offer or counteroffer — parties cannot add new terms after signing.
Adjustments — must be justified, authorized and agreed upon.
Balvinder Kumar practises real estate law (residential and commercial) and is a freelance writer and author with LexisNexis.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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