Home Buyers – Beware of Broken Promises
by Lianne Macdonald & Del Elgersma
One of the most exciting decisions we make involves the purchase of a new home. While the experience can be exhilarating, finding the perfect home can be challenging even for a sophisticated buyer. We find a home we like, but often with a few small problems. For example, the landscaping is not quite finished, or there is a large pile of rubble that should be removed from the yard. Do we go ahead, or not?
To induce a buyer to sign a Contract of Purchase and Sale, a seller may be prepared to take care of minor problems with the property. A clause will be added to the Contract of Purchase and Sale indicating that before the completion date (the day the Buyer must pay the purchase price), the seller will correct the problem. In this situation, the buyer needs to beware of his or her legal rights or responsibilities if the seller does not fulfill the promise.
The standard form of Contract of Purchase and Sale provides that there are no promises or agreements other than those written in the Contract of Purchase and Sale, but that those promises and agreements that are written in the Contract of Purchase and Sale will survive the completion of the sale. In the case of a seller who breaks a promise to fix something, the second part of this clause is helpful for a buyer. The clause means the seller is legally bound to correct the problem even after the completion date. If the seller does not, the buyer can sue for damages in Small Claims Court or, if the loss exceeds $25,000, in Supreme Court. But court proceedings are time consuming, slow, and costly. Even if the buyer gets a judgment against the seller, it may be difficult to recover the money.
To avoid the need to take a seller to court, buyers should have their realtor include a clause in the Contract of Purchase and Sale that allows the buyer:
- to inspect the property before the completion date to make sure that the problem has been corrected, and
- to hold back an amount equal to the cost to fix the problem if the seller has not fixed it by the completion date.
A buyer is generally not entitled to cancel the Contract of Purchase of Sale if a seller breaks a promise to correct a problem and, unless the Contract contains such a remedy, a buyer cannot demand that the purchase price be reduced, or that a sum of money be held back from the seller.
If you are buying or selling real estate and have questions about your contract, give us a call.
I just wanted to extend my thanks for your absolutely first class service. When we were purchasing our home, as you know, we had many obstacles to overcome and actually thought in the last two days that our deal might not go through. It was a very stressful time in our lives and I want you to know that we’ll always appreciate your calm, caring, professional manner and how you made us feel at ease and that it would all work out because we had you representing us.
You and the rest of your team are awesome, and this is why I will continue to refer you to anyone I know who needs legal representation. As a realtor being able to refer my clients to someone who I know without a doubt will provide them with the best legal advice and service adds to my confidence in terms of the overall service I am providing.
You have, in essence become a key element of my business team and I look forward to building on what is already a successful business relationship.”
Over the past year Lianne Macdonald has provided excellent legal advice to my real estate clients. I am always impressed with the quality of her services, as well as the care shown by Lianne and her staff. Lianne is always available if I have any questions or concerns. Her sound advice and legal counsel has greatly helped me in difficult and unusual situations. Lianne Macdonald is a proactive lawyer, an honest and caring person and a trusted friend. Without hesitation, I would recommend Lianne’s services to others, and will continue to use her service where they pertain.
Lianne, thank you so much for your excellent work on our conveyance. Your extra work helped save us thousands of dollars.
Dear Mr. Elgersma, I want to thank you and your team for all your help during my recent sale in Victoria. My lawyer here in Ontario was very impressed by your fee and said it was a very good deal in his experience. Thank you very much.
I recently had the experience of selling my condo. As I am not in the habit of frequently buying and selling my home I find the whole process a bit unnerving. To add to my unfamiliarity with home transactions, I was due to be out of the country on the completion date of my sale. Needless to say this was somewhat worrisome to me.
I hired Del to handle the legal transaction of my sale. What a great decision this turned out to be. Del and I got together a week prior to my trip and completed the necessary paperwork. There are a lot of papers to sign when selling a home and Del took the time to explain each document to me and answered all the questions I had. He then assured me that he had everything he needed in order to handle the transaction in my absence.
Del had explained everything so clearly to me and made me feel so at ease about the process that I felt completely comfortable leaving my legal interests in his hands while I was off vacationing. This made quite an impression on me as I have never felt comfortable leaving my fate in the hands of others, especially the likes of lawyers!
Previously I would have worried about everything going smoothly on the actual day of my home sale but to my delight and surprise on the completion date of this sale I laid in my hammock and drank champagne in the sunshine celebrating with complete confidence that the transaction would be handled just fine. I returned home only to have my suspicions confirmed . . .yes, in my absence, money had been quietly deposited to my account!
Thank you Del for allowing me to let go of the stress and worry around this large, important and infrequent type of event in my life.