When a buyer backs out of a real estate deal, the seller may be entitled to damages, but proving the buyer was responsible for the failed transaction is only part of the battle. Sellers must also take reasonable steps to mitigate their losses, typically by re-listing...
Litigation
Decision highlights the downside of joint tenancy with a child
Adding a child to title is one of the more popular real estate transactions in Ontario, especially among elderly parents who want to reduce the probate tax burden on their intended heirs by facilitating a transfer outside their estate after death.
But joint tenancy is also an increasingly common source of real estate litigation involving parents who change their mind after falling out with a child over the control, maintenance or sale of jointly held property that was once theirs alone.
Selecting the right procedural route to dismiss a claim: guidance from Lahey v. Lahey
In the recent case of Lahey v. Lahey, which involved a long-running family property dispute, Ontario Superior Court Justice Spencer Nicholson provided a valuable overview of these myriad options, including another underused mechanism that neither party raised.
Ontario Court of Appeal enforces oral agreement for sale of land
Although Ontario’s Statute of Frauds generally bars the enforcement of an oral agreement for the purchase of land, Canadian law recognizes an exception to the rule: the equitable doctrine of part performance.
You’ll need more than a simple handshake to prove the existence of an oral agreement, but convincing a judge to apply the doctrine of part performance is possible in the right circumstances, as the recent Court of Appeal decision in 2730453 Ontario Inc. v. 2380673 Ontario Inc. demonstrates.
Buyer recovers deposit after vendor fails to terminate real estate deal
Breaching an agreement of purchase and sale (APS) does not automatically terminate the real estate deal. In Toronto’s pre-construction condo and townhouse market, collapsed real estate transactions are an increasingly common sight as over-stretched buyers realize they...
Appeal Court upholds partial summary judgment in real estate fraud case
The summary judgment rule in Ontario’s Rules of Civil Procedure grants judges enhanced fact-finding powers, allowing them to decide cases finally without the need for a full trial. Even partial summary judgment — where a judge decides certain key issues based on a limited record — can move parties a long way towards a final resolution, by narrowing the issues in dispute and encouraging the parties to settle those that remain
Judge upholds arbitrator’s decision, keeps constructive trust debate going
The Supreme Court may revisit constructive trusts to resolve the outstanding question of whether the remedy is precluded beyond cases of unjust enrichment or wrongful acts. But in the meantime, the takeaway for litigants is that the constructive trusts may be imposed based on good conscience alone.
The fact that so many commercial matters end up being settled behind closed doors in arbitration helps explain the relative lack of public decisions on issues like this one. But it’s not just the privacy of the process that attracts parties to alternative dispute resolution, and this case will also be encouraging for reinforcing the finality of arbitral decisions.
Nine-minute closing delay costs homebuyers $113,000
For buyers, the bottom line is that contractual deadlines are not to be taken lightly. If you intend to complete a deal, you must ensure that your funding is lined up in plenty of time and that all your other obligations under the APS — even minor ones – have been fulfilled as agreed.
Court of Appeal sends fraudulent conveyance and oppression claims for fresh trial
Transferring assets in the lead-up to an insolvency could expose debtors to two similar, but distinct claims from their creditors these being claims for oppression and fraudulent conveyance.
Disposing of assets on the eve of insolvency is likely to be met with a claim for oppression, fraudulent conveyance or both, especially if the transfers were made in the face of a legal claim from one of your creditors.
The test for fraudulent conveyance is potentially an easier one for creditors to meet than the one for oppression.
$350K deposit returned to purchaser who terminated commercial property deal
Any buyer who terminates a binding Agreement of Purchase and Sale (APS) should expect the vendor to move for the forfeiture of their deposit immediately. In a depressed market, an innocent seller may even be entitled to further damages to make up the difference between the sale price agreed in the failed deal and any lower bid they ultimately accept.
However, purchasers who successfully shift the blame for the collapsed deal to the vendor may be able to recover their deposit, even if they were the ones to call it off.