# Want to sue the seller for backing out after taking deposit?



## scorpion_ca (Nov 3, 2014)

Offered accepted and signed contract on Mar 5, 2020
Deposit submitted to the company of seller's realtor on the next day.
Informed landlord to vacant the house at the end of the month.
Inspection completed on Mar 10, 2020 and started negotiation for defectives. Seller offer little bit of cash compensation and would repair some minor works.
We accepted seller's offer for defectives on the Condition day of Mar 16, 2020 at 5PM. Condition removal time is at 9PM.
Now seller is not willing to offer cash compensation and repair minor works as they have received a higher offer. I am interested to buy the house with those compensation.

If the seller doesn't agree, can I sue the seller for mental, emotional and financial distress in the civil court? Please advise.


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## Earl (Apr 5, 2016)

No. I mean you can sue, but you won't win. Seller is under no obligation to repair anything or compensate you for anything uncovered by the inspection.


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## scorpion_ca (Nov 3, 2014)

Seller has offered us those repair and compensation by email and we accepted it and then amendment the condition. Now the seller is backing out. I spent money for inspection and a lot of time. Doesn't have any value for my time and money?


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## Earl (Apr 5, 2016)

I'm still unclear on how seller is backing out of the deal. You have a sale agreement, conditional upon inspection, right? The inspection uncovered problems, so you can either remove the inspection clause and buy the house anyways, or you can back out of the purchase. The choice is yours, not the seller's. If you want to proceed with the purchase, he HAS to sell you the house (though he's under no obligation to compensate you for any problems found by the inspection). Since you say the seller is the one who is backing out, there must be additional details that you haven't explained, eg you cancelled the deal first.


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## nobleea (Oct 11, 2013)

scorpion_ca said:


> Seller has offered us those repair and compensation by email and we accepted it and then amendment the condition. Now the seller is backing out. I spent money for inspection and a lot of time. Doesn't have any value for my time and money?


If it's all written down, and happened in the order you say, it seems like it's an unconditional deal as of 5pm and they can't back out.


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## Mukhang pera (Feb 26, 2016)

Your post is a bit fuzzy, perhaps because English is not your first language (just a guess in that regard). Not sure what province you are in (I suppose everyone here but me knows without being told).

Anyway, as I apprehend the facts from the rather opaque rendition, the time for removal of subject clauses was March 19 at 9 p.m. Before that, you got the vendor to agree to offer some "compensation", or an abatement of the purchase price, in light of certain deficiencies revealed by an inspection. Apparently, the vendor also agreed to perform certain repairs (I would hope there was an agreed time for repairs). So, were these terms made a written addendum to the contract of purchase and sale? If not, I would say forget about them. If yes, you have an action for breach of contract. You may sue for damages. The quantum of damages will be the value of the agreed compensation and value of the work to be performed. The best way to quantify it is to close the deal and hire the work done. You may then sue for that cost.

Forget about suing for emotional distress etc. Silly to even think about. This is just a simple business deal gone awry. Happens many times every day. Courts don't hand out such awards for breach of contract _simpliciter_ on a regular basis.

As an aside, maybe you should be happy and let the vendor sell to someone else. With the world nuttiness about C-19, we might be facing a new world order. RE, stocks, etc., will be worth nothing. Now gold, that's different. It's immune to disease, is packed with nutrients and will no doubt ward off infection.


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## scorpion_ca (Nov 3, 2014)

Earl said:


> I'm still unclear on how seller is backing out of the deal. You have a sale agreement, conditional upon inspection, right? The inspection uncovered problems, so you can either remove the inspection clause and buy the house anyways, or you can back out of the purchase. The choice is yours, not the seller's. If you want to proceed with the purchase, he HAS to sell you the house (though he's under no obligation to compensate you for any problems found by the inspection). Since you say the seller is the one who is backing out, there must be additional details that you haven't explained, eg you cancelled the deal first.


We never cancelled the deal. The condition removal date is Mar 16 at 9 PM and we sent the amendment at 5PM. The seller has changed her mind as she has received a better offer. She has counter offered that if we want the house then we can take it without any compensation for defectives. We have email communication from the seller's realtor.


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## scorpion_ca (Nov 3, 2014)

Mukhang pera said:


> Your post is a bit fuzzy, perhaps because English is not your first language (just a guess in that regard). Not sure what province you are in (I suppose everyone here but me knows without being told).
> 
> Anyway, as I apprehend the facts from the rather opaque rendition, the time for removal of subject clauses was March 19 at 9 p.m. Before that, you got the vendor to agree to offer some "compensation", or an abatement of the purchase price, in light of certain deficiencies revealed by an inspection. Apparently, the vendor also agreed to perform certain repairs (I would hope there was an agreed time for repairs). So, were these terms made a written addendum to the contract of purchase and sale? If not, I would say forget about them. If yes, you have an action for breach of contract. You may sue for damages. The quantum of damages will be the value of the agreed compensation and value of the work to be performed. The best way to quantify it is to close the deal and hire the work done. You may then sue for that cost.
> 
> ...


Sorry, English is my second language and I live in AB. The wanted to complete the repair before possession date contingent to weather condition. We have submitted an amendment based on the negotiations. However, the seller didn't sign it as she has received a better offer and counter offered us to take it as is and we won't get any compensations for repairs. I spent around $400 inspection and a lot of time to get mortgage approval. In the meantime, I have informed my landlord that I will vacant the place at the end of this month. 

I am thinking to go to the small claim court. At the end, we accepted what the seller offered but the seller has changed her mind at the last minute.


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## scorpion_ca (Nov 3, 2014)

nobleea said:


> If it's all written down, and happened in the order you say, it seems like it's an unconditional deal as of 5pm and they can't back out.


Yes, we are communicating with the realtor of seller by email and text messages and we have kept it as evidence. How much compensation should we be seeking? We were really excited as a first time home buyer. Now very upset...


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## Mukhang pera (Feb 26, 2016)

Yes, it might make sense to go to small claims. Don't ask for mental distress or such damages. You will lose credibility. Just present a good case for out-of-pocket costs, etc. That can extend to costs of you having to leave your present rental premises and renting elsewhere, when you expected to have the house to move into. 

I am less sure of AB law, but probably similar to BC. You could block the sale by commencing an action in the Court of Queen's Bench and filing a lis pendens (or certificate of pending litigation) against the property and seek the remedy of specific performance, i.e., an order forcing a sale to you, as agreed. It depends on how strongly you feel about the particular property. A small claims action won't allow you to file a lis pendens small claims cannot grant the remedy of specific performance, only damages. Until recent times, BC courts were reluctant to grant specific performance unless you could show that the property was somehow unique and you could not readily find somehting similar in the marketplace. But that strict view has softened and vendors in default are now more commonly held to their bargains.

And, don't be sorry about my petty complaint about your English. It's not bad at all, but for legal matters, perhaps suffers from a certain lack of precision. I am sure your English is a lot better than my facility in your native tongue.


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## scorpion_ca (Nov 3, 2014)

The realtor of seller forwarded us the following email on Mar 13, 2020 without the seller's contact info.

_“Based on the estimates we’ve received, the listed issues would not cost $10,000.00. In addition, evaporative humidifiers can operate with hot, cold, hard, or soft water. Hot water is preferred as it supplements the heat from the HVAC system heat call to increase the evaporation rate. 

We will compensate the buyer $XXX.00 based on the Buyers agents estimates (which are above what we’ve been quoted) to fix the vertical crack on the foundation wall ($XX.00), closing the electrical box inside the garage ($XX.00), and fixing the washing machine drain line ($XXX.00). The additional $XXX.00 of compensation can be used to cover the “other minor jobs” requested by the Buyer. 

We will fix the walks and steps in the front and wooden steps to side door. 

We will not compensate for repairing the connection line for the humidifier (see above), or compensate for the other cosmetic issues clearly visible during viewing and negotiation, as well as discussed by you with their realtor.

Overall, we are fixing and/or compensating the Buyer for 7 of the 10 issues.”
_
After that, we have tried to get more but that was their final offer. We have accepted the offer on the condition day at 5PM and sent it to their realtor for the seller's signature. The realtor came back with the following reply - 

"_Hi XXX. I'm very sorry. But the seller has made up her mind. She was actually very frustrated last night by the negotiations and was having second thoughts, as I mentioned in our text. But now the potential for new buyers has her convinced she will not offer any concessions. I understand that your buyers have spent the last couple days trying to get a few more thousand dollars to repair the items. But now she has the opportunity to sell the home for more money and is choosing that option."_


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## Mukhang pera (Feb 26, 2016)

Please understand scorpion that I have not seen all of the paperwork, emails, etc., and I am not wholly familiar with Alberta law (which I think is very similar to that here in BC in real estate matters). 

With that caveat, it seems to me that you made an offer, subject to inspection. With the inspection in hand, you indicated that you would not lift the subject clauses without some concession with respect to repairs. Then the vendor, through the vendor's agent, made, in effect, a counter-offer to sell with some, but not all, concessions agreed. You communicated your acceptance within the time allowed - before 9 that night. The contract became final and binding at that point. If the vendors sells to someone else, that's a breach of contract. In fact, the vendor is already in breach, putting you on notice that the property will be sold to someone else. That is what lawyers call an "anticipatory breach".


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## scorpion_ca (Nov 3, 2014)

Mukhang pera said:


> Please understand scorpion that I have not seen all of the paperwork, emails, etc., and I am not wholly familiar with Alberta law (which I think is very similar to that here in BC in real estate matters).
> 
> With that caveat, it seems to me that you made an offer, subject to inspection. With the inspection in hand, you indicated that you would not lift the subject clauses without some concession with respect to repairs. Then the vendor, through the vendor's agent, made, in effect, a counter-offer to sell with some, but not all, concessions agreed. You communicated your acceptance within the time allowed - before 9 that night. The contract became final and binding at that point. If the vendors sells to someone else, that's a breach of contract. In fact, the vendor is already in breach, putting you on notice that the property will be sold to someone else. That is what lawyers call an "anticipatory breach".


If you were in my position, how much would you be seeking for compensation in small claim court?


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## Mukhang pera (Feb 26, 2016)

scorpion_ca said:


> If you were in my position, how much would you be seeking for compensation in small claim court?


Hard to say, but here's what the court will look at:

First, you now have a choice of whether to accept the vendor's repudiation of the contract and sue for damages or sue for specific performance. Assuming you elect damages, you should put the vendor on notice that you will seek damages. You will be expected to "mitigate" your damages, by acting reasonably in response to the breach. That means, for example, that you cannot move into new rental premises, sit there for a year, buy a similar property at a higher price next year and sue for all the rent paid, moving costs, etc., plus the difference between the price at which the vendor agreed to sell and the price you end up paying. 

One simple way to measure your damages would be this. Let's say the vendor agreed to sell to you for for $500,000, then breached the contract and sold to someone else for $550,000. If, through appraisal or similar evidence you could show that it would cost you $550,000 to go out into the marketplace and buy a similar property, then the measure of your damages would be $50,000 ($15,000 above the monetary jurisdiction of the small claims court here in BC). Plus you could claim costs thrown away, such as costs of an interim move, etc.

It is also the case that in BC (probably AB too), you may sue for specific performance and damages in the alternative and wait until trial to make your election.


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## Mukhang pera (Feb 26, 2016)

I just took a quick look online and it appears that the monetary jurisdiction of AB small claims court is $50k. Even if only $35K, I would probably elect to proceed in that forum. To sue in a superior court is more tthan you want to get into. Darn near impossible to do without a lawyer and, with a lawyer, even a $100,000 win won't put much in your pocket at the end of the day. In small claims you can go in in your jeans and your T-shirt and say, "Hey. your Honour, this guy screwed me" kinda' thing. That informal approach would be met with some opprobrium in the more lofty atmosphere that prevails in the higher courts.

Better to go to small claims and, in your written pleadings, set out the full amount of your claim. If it adds up to $70,000, then say say you are waiving the excess to attorn to the jurisdiction of the court, meaning you will accept judgment for $50,000 even though you might be able to prove a larger amount of damages.

I might not get back to this thread for a bit. Carrying on a Messenger conversation with a friend in the Philippines at the same time as this. I have to focus on that for awhile, getting more intense. My Filipino friend was supposed to come here, but, of course, denied a tourist visa by Canadian immigration. I was then supposed to go there in 2 weeks, but covid has put paid to that. Too bad my friend cannot find his way to Roxham Road, and get the red carpet entry. But then, he's probably too well-educated and too self-sufficient to be seen as desirable. He would probably be shot.


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## Earl (Apr 5, 2016)

Sorry but this is absurd, the advice you are giving him about going to court is just going to waste his time (and probably money) and is not going to result in any payout.

OP is acting on his emotions and not thinking logically, he is angry at the sellers and wants to punish them. He has not demonstrated that he has suffered any financial loss (other than paying for the inspection, but I doubt he can get compensation for that).

The email from the seller agent about fixing the defects will not be seen by the court as a breach of contract.

I am not a lawyer so maybe I am wrong, but my experience tells me this is not worth pursuing.


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## nobleea (Oct 11, 2013)

Earl said:


> Sorry but this is absurd, the advice you are giving him about going to court is just going to waste his time (and probably money) and is not going to result in any payout.
> 
> OP is acting on his emotions and not thinking logically, he is angry at the sellers and wants to punish them. He has not demonstrated that he has suffered any financial loss (other than paying for the inspection, but I doubt he can get compensation for that).
> 
> ...


Disagree. He definitely would win, this is a clear breach of contract. Best case scenario is he wins the small claims of 50K or whatever it is, and then prices drop and he gets a better deal.

But there must be a sign of loss, and if prices are dropping, which they most likely will be, then it might be hard to show a loss at least on the purchase price. Maybe on moving costs, extra rent or whatever.


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## Mukhang pera (Feb 26, 2016)

Earl said:


> Sorry but this is absurd, the advice you are giving him about going to court is just going to waste his time (and probably money) and is not going to result in any payout.
> 
> OP is acting on his emotions and not thinking logically, he is angry at the sellers and wants to punish them. He has not demonstrated that he has suffered any financial loss (other than paying for the inspection, but I doubt he can get compensation for that).
> 
> ...


Not sure what renders that "absurd". As nobleea says, we have a clear breach of contract. On the strength of having a deal, the OP gave notice that he will vacate his rental premises. Perhaps he can beg the landlord to let him stay and that might be permitted if the L/L has not already entered a tenancy agreement with someone else. So the expense of an unnecessary move sounds in significant damages right there. So does the fact that the vendor chose to breach the contract when offered more money. That, right there, suggests that part of the quantum of damages would be the difference between the price at which the vendor agreed to sell to the OP and the price obtained from the new purchaser. 

In BC, the innocent purchaser would be allowed to ask for damages to be assessed as of the date of the breach, so that would suggest that the OP should recover the difference between what he agreed to pay and what the vendor got. That, and other damages assessment issues are discussed in a recent BC case, cited below. The BC case cited also awards damages for rental costs incurred after the date when the jilted purchaser should have been living in the house. The purchaser was awarded damages of $229,526. Of course, maybe the judgment cited is "absurd". I suppose absurdity is in the eye of the beholder.

Sun v. Kang, 2019 BCSC 1016

https://www.bccourts.ca/jdb-txt/sc/19/10/2019BCSC1016.htm


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## scorpion_ca (Nov 3, 2014)

I was browsing online and found that I need to provide the seller a demand letter. Since I am planning to go to the small claim court in Calgary, I am thinking to write it by myself or should I find a lawyer? I think most of the real estate lawyers are good for completing the transactions but this is a breach of contracts....Really upset now..already started to pack our stuff in the last two weeks.

Any step by step guidance will be highly appreciated.


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## Mukhang pera (Feb 26, 2016)

I am not sure I would go so far as to say that you "need to provide the seller a demand letter", I did say in post #14 above: "Assuming you elect damages, you should put the vendor on notice that you will seek damages." So, generally a good idea. Although it's generally held that issuing and serving the writ serves as pretty good notice of what you are thinking.

As for doing it yourself, maybe, with a bit of help. You are right about most real estate lawyers being competent conveyancers but most do not take on real estate litigation. Litigation has become too complex for lawyers to dabble in it. Not like the old days of the general practitioner who would take on anything. Not really possible any longer. So you will need someone who does litigation and, preferably, someone who has engaged in real estate-related litigation. But you are probably looking at about $400 an hour. 

I expect AB is like BC and the small claims court is intended to the "the people's court" and it discourages lawyers from attending. Hence, in BC, no legal costs may be recovered by the successful party. But you might want to retain counsel to get you started, maybe by way of the demand letter and preparing the docs to start your claim, as well as giving a bit of initial advice. Your proposed litigation is not really complicated - a fairly straightforward breach of contract case with damages not really difficult to quantify. You should check at the outset if the court may hear a case for breach of K for sale of land. It should be easy to find on a court website. Here in BC, as I recall, the small claims court can hear such a case, but it cannot grant a decree of specific performance. That's not what you want anyway. You should also find online some guidance about commencing and prosecuting your action. As I said, the scc is geared to being a court for non-lawyers.


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## Longtimeago (Aug 8, 2018)

May I ask, where is your real estate agent and his/her advice in this situation? Or, did you not use one.


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## scorpion_ca (Nov 3, 2014)

Longtimeago said:


> May I ask, where is your real estate agent and his/her advice in this situation? Or, did you not use one.


The realtor asked me not to accept the offer as is because the seller offered us to lower the price by 2k and would do some minor repair works. He told me that this is the first time it happened with him usually buyer backs out of the deal. He would find a lawyer but I don't know if the lawyer would be as experienced as it required for this claim.

He also suggested me to put a lien on the property once we submit the claim to the SCC.


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## Mukhang pera (Feb 26, 2016)

scorpion_ca said:


> The realtor asked me not to accept the offer as is because the seller offered us to lower the price by 2k and would do some minor repair works. He told me that this is the first time it happened with him usually buyer backs out of the deal. He would find a lawyer but I don't know if the lawyer would be as experienced as it required for this claim.
> 
> He also suggested me to put a lien on the property once we submit the claim to the SCC.


I would be hesitant to accept the realtor's legal advice. For example, did he tell you how to go about filing a lien and did he outline the legal basis for doing so? Here in BC, the only "lien" you could file would be as I described earlier - a _lis pendens_ (or certificate of pending litigation). In BC, that is a step you may take only in an action commenced in the Supreme Court and when you seek the remedy of specific performance. The filing of the LP will block a sale of the property to anyone until cancelled by you or by court order.


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## Rusty O'Toole (Feb 1, 2012)

You need to consult a lawyer. In my experience of buying and selling real estate you have a choice. You can go through with the deal as originally written because you have a contract. Or you can drop the whole matter if you are unhappy with the results of the home inspection. In either case, you have a certain deadline of when you can waive the inspection clause. Once again, consult a lawyer. Only he can tell you where you stand, and then only after reviewing the paperwork.


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## Mukhang pera (Feb 26, 2016)

I'll agree with Rusty, in part. I don't agree with the broad comment about having a choice, completing as written, walking away if the inspection reveals an issue, etc. That's his experience and view, but not tthe only way of looking at it. In any event, this case has moved somewhat beyond the stage where those comments might be apposite.

As for consulting a lawyer, probably a good idea, to the extent of having someone with knowledge of AB law provide guidance. As I said earlier, I have not seen the paper trail, the emails, etc., nor have I been informed of the contents of any discussions along the way. So to the extent I may be seen as giving advice here, I am working with little. 

I not not think that retaining counsel to do battle is worthwhile. Not unless the upside is an award of damages of at least $100,000. That's an absolute minimum, given the cost of litigation. I have understood from my early days of practice that one must be rich or crazy to start a lawsuit in the superior courts. On top, at least in BC, if you commence an action in Supreme Court, but recover a judgment within the small claims jurisdiction, you will likely find yourself being awarded none of your legal costs, even though you won. So, going to Supreme Court and getting judgment for $35,000 might see you paying legal fees of $70,000.

Unless AB is significantly different, in BC, there is little downside to going to small claims. If you go in on your own, if you lose, the most you will be out of pocket is the small amount you paid to file the action, maybe a service fee and a few small disbursements and the winner's filing fee. So you might be out $500. If you go to Supreme Court and lose, you will likely end up owing your lawyer $70,000 and have to pay the winner's costs of $40,000. That's why it pays to remember: "Justice is open to every man, just like the Ritz Hotel."


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## scorpion_ca (Nov 3, 2014)

My plan is to go with small claim court. Here is the email I am forwarding to the seller - Please help me to correct any sentences or if you would like to add anything. 

Hi XXXX:

1.	We have accepted your price of $340,000.00 and signed a Residential Purchase Contract on March 4, 2020 with financing and inspection conditions. The condition removal date was on March 16, 2020 at 9 PM.
2.	We were confident enough to complete the deal. Therefore, we informed our landlord on March 5, 2020 that we would leave the house at the end of March 31, 2020. See attached screenshots for notice to landlord and packed for moving.
3.	We paid for around $400.00 and completed the inspection by the certified master inspector, XXX and found some defectives along with a major safety issue of patio wall in your house. 
4.	We started to negotiate through our realtor for defectives and agreed on what you offered us before the condition removal date and time. Please see below that you offered us $2,000.00 of compensation and would repair walks & steps in the front, small pocket gate beside the garage and wooden steps to side door. In another email, your realtor has informed us that the repair would be done before possession (we will have to work out weather depending repairs) and we are okay with it.
5.	Your realtor has informed us on March 16, 2020 at 7:39 pm, that “Hi XXX. I'm very sorry. But the seller has made up her mind. She was actually very frustrated last night by the negotiations and was having second thoughts, as I mentioned in our text. But now the potential for new buyers has her convinced she will not offer any concessions. I understand that your buyers have spent the last couple days trying to get a few more thousand dollars to repair the items. But now she has the opportunity to sell the home for more money and is choosing that option. ”
6.	I strongly believe that you have breached the contract when we accepted your offer of compensation for defectives before the condition removal date as per our signed Residential Purchase Contract. We also submitted the signed amendment to remove the financing and inspection conditions before the condition date and time.

Although I don’t want to do it, I wouldn’t have any choice other than taking you to the court unless you agree on what you offered us regarding the compensation for defectives and sell the house to us. We will leave it to a Judge to decide about it. If you sell the house to us, we will really take good care of your house. 

Here is the court case in BC that is very similar to what is happening with us now. I have two years from the breach of contract date on March 16, 2020 to file a claim in the court.

Sun v. Kang, 2019 BCSC 1016. I have attached the judgment in case the following doesn’t work. 

https://www.bccourts.ca/jdb-txt/sc/19/10/2019BCSC1016.htm 

Therefore, I am requesting you to reconsider what you offered to us on March 14, 2020 and honor it. Otherwise, we will not have any place to live after March 31, 2020. What would you do if you were in our position now? I believe we can still make it right and fair for both parties.

Regards,


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## Mukhang pera (Feb 26, 2016)

Not an all bad letter. Not what a lawyer would write, but you are not a lawyer and not to be held to that standard.

However, a note of caution. The letter suggests that you have not accepted the breach of K and are treating the contract as still on foot. You are urging the vendor not to breach and, instead, to perform the agreement. Nothing wrong with that, but then you too must carry on under the K and hold yourself ready, willing and able to complete. I am not sure what the date set for closing is, but it must be soon, coinciding with the end of your tenancy (incidentally I note that, under BC law, you gave an invalid notice to end the tenancy. Here, to be effective, a notice given in March 2020 would not be effective to end a month-to-month tenancy in March. A notice given in March could only be effective as at the end of April. To validly terminate as of March 31, notice had to be given by Feb. 29. Do you know if your notice is lawful? If not, is your landlord okay with short notice?). 

So, to be ready, willing etc., you must have the conveyancing documents prepared and supplied to the vendor ahead of closing and you must have your funds at hand (usually in your solicitor's trust account) by the closing date so you will be in a position to tender. In short, you must act right up until the end of business on the day set for closing as though you are going ahead and must do so. if the vendor decided to cave in and execute the conveyance docs and accept tender, you would have to make tender and I do not think you would be allowed to refuse to complete over the repair issues. That would not raise a "fundamental breach" entitling you to rescission. You would have to close then sue for damages over the repair issues. 

Also, I am assuming you have paid a deposit and it is being held in a realtor's trust a/c. Am I right? You have t be careful that you do nothing that could be construed as a breach on your part and end up having to fight to regain your deposit.

So scorpion, I fear that you may be relying on me a bit to act as your unofficial counsel in this matter. I am happy to provide some help, but recognize that I have not seen all docs, emails, etc., I have never practised law in Alberta and I can do more than provide some general ideas. For awhile in the 80s I contributed to some Alberta-based law publications and had to familiarize myself with certain aspects of Alberta law, including contracts and real estate, but that's awhile back. BC and Alberta law in those fields was then developing in very much the same way and I expect the two are the same today in most respects. But paying for an hour or so of a local expert's time might be prudent. It sounds like there might be enough on the table here to make that worthwhile. Even just to secure the return of your deposit. If that was a non-issue and your case had a max value of, say, $10,000 or so, I would tell you to wing it and not indulge in the luxury of legal advice.add p.s.

P.S. A good read on the topic of election of remedies in real estate cases. A long case, but the pith and substance of that issue may be found starting at para. 56:

_Kent_ v. _Kalyk_, 2017 BCSC 1074

https://www.bccourts.ca/jdb-txt/sc/17/10/2017BCSC1074.htm


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## scorpion_ca (Nov 3, 2014)

I may lose my damage deposit with my present landlord. I got mortgage approval and the down payment is ready too. 

Yes, I paid 10k deposit after signing the contract. If they return my deposit, should I accept or refused it? 

Everything happened so quickly and I need a little bit of time to find a lawyer here in Calgary. I would really appreciate your help. Thanks.


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## Mukhang pera (Feb 26, 2016)

I would say you may accept, but put it in writing that you accept without prejudice to your right to sue for damages for breach of K.

P.S. again. Check with the Law Society of Alberta (I think that's what the governing body there is called). Maybe they offer what we have in BC - the Lawyer Referral Service. It's a list of lawyers and their areas of practice/speciality, who will take on new clients and offer an initial 30-minute free consultation.


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## Prairie Guy (Oct 30, 2018)

scorpion_ca said:


> We will compensate the buyer $XXX.00 based on the Buyers agents estimates (which are above what we’ve been quoted) to fix the vertical crack on the foundation wall ($XX.00), closing the electrical box inside the garage ($XX.00), and fixing the washing machine drain line ($XXX.00). The additional $XXX.00 of compensation can be used to cover the “other minor jobs” requested by the Buyer.
> 
> We will fix the walks and steps in the front and wooden steps to side door.
> 
> ...


A perspective outside of the contract:

Other than the vertical crack that may or may not be an issue, all of those problems seem to be very minor issues that fall under the category of "regular maintenance" and seem quite petty to bring up when buying a house. Maybe they should have fixed them first but other than the crack (that may not be an issue) nothing there would deter me from buying a house if I liked it, and nothing that's expensive to fix with basic DIY skills.

It can be very expensive to own a house if you can't do basic maintenance.


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## STech (Jun 7, 2016)

Are you more interested in getting the house or going to court?

Do you think you got a good deal, even if she didn't pay for the repairs?


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## sags (May 15, 2010)

What is the financial damage to the OP that could be included in a court judgement ? 

Perhaps at best the cost of the inspection. Lawyer fees will eat that up in 2 hours or less.

Move on and buy some other house.


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## sags (May 15, 2010)

It should also be pointed out that Judges are only interested in facts.

You either have a valid contract stating the seller will pay for repairs or you don't.

If a plaintiff loses a civil case, they are often ordered to pay the defendant's legal fees. This is to discourage misuse of the court system.


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## Longtimeago (Aug 8, 2018)

Sometimes it pays to take a step back and look at the entire situation.

How badly do you want this particular house? Sometimes it isn't just about the money. When someone finds what they consider to be the 'perfect house', arguing over a couple of thousand dollars just doesn't make any sense.

That brings me to what would it really end up saving or costing you if you agree to their terms and complete the sale. It sound like around $2000 more you would pay but how unimportant would that be in the long run. If say you pay $340k today and have to put in another $2k for repairs, you are in for a total of $342k obviously. But if you stay in the house for say 10 years and sell at $500k, how much will having paid $2k more bother you then?

I think if I were in your situation that is how I would try to look at it. Do I really want this house and how significant will the extra cost to me to get it likely be when I sell. The idea of actually going to court over it simply makes no sense to me. Too much hassle over too little money.


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## Mukhang pera (Feb 26, 2016)

Maybe I am missing something that the above 3 responders recognize here that I do not.

As I apprehend the facts, the vendor has already inked a deal with someone else at a higher price. That might be a wholly erroneous conclusion, but it was I thought was being said. But, if by some strange circumstance I got it right, can scorpion now simply return to the vendor and say "Fine, I'll close at month end at $340k and you won't have to make any allowance for repairs. I'll let you renege on that."?

So, if there be any truth to the notion that the vendor has balked because of a higher offer, if said offer has been accepted, do we not face a situation of greater difficulty than simply saying let's get it done at $340K? Will the vendor not now want scorpion to come up to at least the price being offered by the other suitor? And, if there is a signed deal with that other purchaser, I see much potential for a lawsuit at the hands of that purchaser, who might feel a tad annoyed at being told the vendor has now elected to breach that contract. Of course, maybe that disappointed purchaser will simply take a sagsonian approach and say contracts are made to be broken and we meekly move on when that occurs and suck up any costs and inconvenience we have incurred.


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## scorpion_ca (Nov 3, 2014)

Here is the reply I have received from the realtor of seller.

"Could you please have your clients speak with your broker. They very clearly did not waive their conditions. Therefore they had a conditional purchase contract. Not a complete purchase contract. Again, I’m very sorry for their situation but they had every opportunity to waive their conditions, but they did not. So the contract is completely collapsed. Please, could either you or your broker explain this to them."

Based on the contract law if I remember correctly (took a business law course at the U of Calgary in 2009), when one party accepts other party's offer by verbal or written, it is a contract that is abide the law. We accepted their offer of compensation and submitted the signed amendment form to complete the transaction before the condition deadline and then the seller refused to compensate for defectives. My understanding is that the breach of contract. However, I am not a lawyer...


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## scorpion_ca (Nov 3, 2014)

STech said:


> Are you more interested in getting the house or going to court?
> 
> Do you think you got a good deal, even if she didn't pay for the repairs?


I was interested to buy the house as it was a reasonable deal and we like the house. Similar houses are selling 315k to 320k lately in that area. It was bright and the basement was completed, so we accepted their offer of 340k.

I have started to feel good now the way economy is going nowadays. Those houses would be 260k - 280k very soon. Regardless, I have two years to file a claim against them. I would leave it to judge to decide about it.


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## scorpion_ca (Nov 3, 2014)

sags said:


> What is the financial damage to the OP that could be included in a court judgement ?
> 
> Perhaps at best the cost of the inspection. Lawyer fees will eat that up in 2 hours or less.
> 
> Move on and buy some other house.


Doesn't matter about the $$. At least they would think twice to do the same thing with others in future.


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## Mukhang pera (Feb 26, 2016)

sags said:


> What is the financial damage to the OP that could be included in a court judgement ?
> 
> Perhaps at best the cost of the inspection. Lawyer fees will eat that up in 2 hours or less.
> 
> Move on and buy some other house.


Did you read anything about the discussion of potential damages assessment in the earlier posts? Did you read the judgments cited? If so, how can you say "at best the costs of the inspection"? I hope you intended to say "At minimum the costs of inspection". And, as for lawyer fees, the advice I gave is to proceed in small claims court if it appears worthwhile to proceed at all. There, lawyer fees will be a non-issue.

Maybe I am old school, but I grew up in a world and at a time where people were expected to be held to their bargains. You suggest that a contract is but a thing writ in water and a breach and attendant expense is just something one can expect to put up with from time to time. Just walk away; suck it up buttercup. Some of us don't see it that way.




sags said:


> It should also be pointed out that Judges are only interested in facts.
> 
> You either have a valid contract stating the seller will pay for repairs or you don't.
> 
> If a plaintiff loses a civil case, they are often ordered to pay the defendant's legal fees. This is to discourage misuse of the court system.


I'll take it that you have no shortage of experience as a litigation lawyer and you have a fair insight as to the workings of the courts and how to present a case to a judge. Most judges before whom I have presented cases have also displayed a keen interest in not just the facts, but the law to be applied to those facts.

As for "You either have a valid contract stating the seller will pay for repairs or you don't." where does that bald statement take us. Scorpion has said that just before the deadline for subject removal, there was an agreement for repairs incorporated into the K. I am content to assume for the purposes of this thread that there was a valid and binding contract of purchase and sale with that term incorporated.

As for "If a plaintiff loses a civil case, they are often ordered to pay the defendant's legal fees. This is to discourage misuse of the court system." Well thank you for that trite observation, but to what end? I already pointed out that legal fees are not recoverable in a small claims action.


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## scorpion_ca (Nov 3, 2014)

sags said:


> It should also be pointed out that Judges are only interested in facts.
> 
> You either have a valid contract stating the seller will pay for repairs or you don't.
> 
> If a plaintiff loses a civil case, they are often ordered to pay the defendant's legal fees. This is to discourage misuse of the court system.


I have received an email from the realtor of seller that the seller would compensate for defectives and repair some works. If I am not mistaken, that email would count as an offer to me and I accepted that offer prior to the condition removal date by submitting an amendment to the purchase contract.

_10) Acceptable Methods for Acceptance of the Offer and Providing Notices
Section 14.1 in the new Alberta real estate purchase contract involves the mechanisms for delivering notice. As above, both the old and new Alberta real estate purchase contract allows for notices (including offers and final acceptance) to be sent to the real estate agent. Aside from the bold reminder note, the key difference, is that new contract now allows for delivery of notices (and all other documents) by email, a change that was needed for some time given commonality of email communication and its widespread use in the real estate industry. Interestingly, the new section 13.2 deems notice to be effective at the time the email was sent rather than when it was received._

https://kahanelaw.com/top-changes-alberta-real-estate-purchase-contract/


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## scorpion_ca (Nov 3, 2014)

I feel that a contract has been breached in this situation and I want justice. I will take the seller to the court within the two years. 

I could have accepted $340k without the compensation for defectives but that is not what the seller counter offer us by email and we accepted it. What does the law say if one party changes their mind after offering something to the other party and other party accepts it?


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## Mukhang pera (Feb 26, 2016)

scorpion_ca said:


> Here is the reply I have received from the realtor of seller.
> 
> "Could you please have your clients speak with your broker. They very clearly did not waive their conditions. Therefore they had a conditional purchase contract. Not a complete purchase contract. Again, I’m very sorry for their situation but they had every opportunity to waive their conditions, but they did not. So the contract is completely collapsed. Please, could either you or your broker explain this to them."
> 
> Based on the contract law if I remember correctly (took a business law course at the U of Calgary in 2009), when one party accepts other party's offer by verbal or written, it is a contract that is abide the law. We accepted their offer of compensation and submitted the signed amendment form to complete the transaction before the condition deadline and then the seller refused to compensate for defectives. My understanding is that the breach of contract. However, I am not a lawyer...


This is where a close reading of the documents becomes important.

If there was plainly a lack of written removal of the subject clauses, the vendor's agent would be correct and the deal never came into existence. From what I was able to gather from your earlier posts, before the time for subject removal arrived, your agent conveyed to the vendor's agent your wish for some concession on account of defects revealed by the home inspection. The vendor's agent contacted the vendor and some agreement was made and you signed a contract amendment accordingly , including a waiver of conditions (or removal of subject clauses...same thing) and the deal became final and binding.

You mention "when one party accepts other party's offer by verbal or written, it is a contract". It is unclear to me how much may have transpired at the eleventh hour "by verbal". In an ordinary contracts situation, what is said is just as binding as what is written (although spoken words and their meaning can pose issues of proof at trial). However, contracts for the sale of land are a different animal and must be in writing. In BC, there is some conflicting law on the extent to which a contract for the sale of land may be partly written and partly oral. Without taking time right now to look at some recent cases, I would say the prevailing view is that oral terms relating to minor things can bind and the absence of writing will not undermine the validity of the main contract. But the law is clear that subject clauses are expected to be removed in writing in timeous fashion. If that did not occur, you are dead in the water, except for a possible lawsuit against your agent if he did not advise you correctly on that score. I hate to hear what sags et al. might be thinking about yet more talk of litigation. But I expect it will come.


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## scorpion_ca (Nov 3, 2014)

I will upload all docs here without the confidential info by tonight.


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## Prairie Guy (Oct 30, 2018)

scorpion_ca said:


> Doesn't matter about the $$. At least they would think twice to do the same thing with others in future.


Maybe you'll learn a lesson too? You nitpicked over a few minor general maintenance issues and they found a better offer. It may or may not be morally right but you still lost the house.


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## scorpion_ca (Nov 3, 2014)

Communication between realtors - I have hid the name of my realtor.


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## scorpion_ca (Nov 3, 2014)

Communication between realtors 2 - I have hid the name of my realtor.
View attachment 20014

View attachment 20016

View attachment 20018

View attachment 20020

View attachment 20022


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## Mukhang pera (Feb 26, 2016)

scorpion_ca said:


> Communication between realtors 2 - I have hid the name of my realtor.
> View attachment 20014
> 
> View attachment 20016
> ...


With respect to this lot I am admonished:

Invalid Attachment specified. If you followed a valid link, please notify the administrator.


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## Mukhang pera (Feb 26, 2016)

scorpion_ca said:


> Communication between realtors - I have hid the name of my realtor.
> View attachment 20004
> 
> View attachment 20006
> ...


I am banned from reading the above. I have been scolded thus:

Mukhang pera, you do not have permission to access this page. This could be due to one of several reasons:

Your user account may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.


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## scorpion_ca (Nov 3, 2014)

Mukhang pera said:


> With respect to this lot I am admonished:
> 
> Invalid Attachment specified. If you followed a valid link, please notify the administrator.


Please refresh your browser and it may work.


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## scorpion_ca (Nov 3, 2014)

Mukhang pera said:


> I am banned from reading the above. I have been scolded thus:
> 
> Mukhang pera, you do not have permission to access this page. This could be due to one of several reasons:
> 
> ...


I got the same message too.


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## scorpion_ca (Nov 3, 2014)

Communication between realtors 1 - I have hid the name of my realtor.


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## sags (May 15, 2010)

It doesn't sound to me like you had a valid final contract, but instead had emails exchanged between realtors.

The emails between the realtors may not be considered more than hearsay evidence by the court, and even if accepted the sellers could easily deny they directed their realtor's emails.

A seller with a conditional offer in hand can legally accept other offers from buyers. The buyer with the conditional offer then has to decide if they waive the conditions or not.

_When it comes to conditional offers, it’s also important to know that although an offer has been placed, the seller is still allowed to show the home to other potential buyers in case the conditions of the offer are not met and the offer falls through._

https://www.darrenrobinson.ca/mortgage-blog/exactly-conditional-offer/

In any event, the amount of damage is so small that it would cost more in lawyer fees than it is worth. 

Small claims court is an option but contrary to what someone posted, they do award significant legal costs to the winner of the case.

_Typically, an award of costs in Small Claims Court cannot exceed 15% of the amount claimed, unless the court finds it necessary to penalise a party for unreasonable behaviour in the proceeding. The court concluded that in this case the defendant had acted unreasonably, both in the way it conducted its defence and by refusing to accept a reasonable offer to settle, and assessed a $5000 penalty in costs._

_Another Small Claims Court rule allows the court to award the plaintiff double the normal cost order if the plaintiff makes an offer to settle that is not accepted by the defendant and obtains a judgment as favourable as or more favourable than the terms of the offer.

In this case, because the plaintiff obtained judgment for $25,000 at trial, which was higher than the offer he made that was not accepted, he was awarded $11,000 in costs; that is; $500 for inconvenience plus $5,000 for costs, doubled._

https://macleodlawfirm.ca/legal-costs-recover-small-claims-court/

It may not be fair......the law often isn't fair. It may not be right......the law often isn't right. But it is what you have to deal with. 

Good luck.


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## Retired Peasant (Apr 22, 2013)

No one is going to be able to read your attachments. Part of the transition to new forum software - I haven't been able to open any attachments/figures/charts since they started the transition.


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## Mukhang pera (Feb 26, 2016)

sags said:


> It doesn't sound to me like you had a valid final contract, but instead had emails exchanged between realtors.
> 
> 
> Small claims court is an option but contrary to what someone posted, they do award significant legal costs to the winner of the case.
> ...


Well done The Honourable Mr. Justice sags. Providing us with a statement of Ontario law from an unofficial Ontario website. Had you read anything there before posting, you would know that we are talking about Alberta. Then, you might have looked at the Alberta Provincial Court website, which can be taken as somewhat authoritative. It says this about costs (almost identical to BC practice):

*Requests for Default Judgment*
Clerks have the authority under the Provincial Court Civil Procedure Regulation to approve recoverable costs based on the steps taken up to Judgment. This may occur when a party is making a Request for Default Judgment against a party who has failed to file a Dispute Note on a debt or a liquidated demand claim. _This may include costs that the party has incurred for filing the Civil Claim, service of the Civil Claim, and registry searches._ [emphasis added] Receipts will need to be provided, with the exception of the filing fee for the Civil Claim.

*Request to Note in Default*
If a Request to Note in Default is filed against a party on a Civil Claim that is not for a debt or liquidated demand, the Court may award costs for steps taken up to Judgment. This may include costs that the party has incurred for filing the Civil Claim, service of the Civil Claim, and registry searches. Receipts will need to be provided, with the exception of the filing fee for the Civil Claim.

*Costs Awarded by the Court*
If you are successful in your claim, any costs that are incurred _as indicated above_ [emphasis added] may be included in the Judgment awarded by the Court. The opposing party will be responsible to pay these costs. If you are unsuccessful, costs may be awarded against you, meaning you will be responsible for paying the opposing party(ies) costs as well as your own.

I read those provisions as operating in the way I KNOW the identical BC provisions as operating. Recoverable costs extend to filing and service fees and such but not to lawyer's fees and charges. I was part of a committee that developed the small claims rules for BC years ago and everyone at the table agreed that the idea of a small claims court would be defeated if there was any encouragement for lawyers to be involved. We wanted to avoid the unseemly spectacle of someone suing for $100 and losing and having to pay the defendant $5,000 in legal costs.

So don't give us that "contrary to what someone posted" crap as a way of denigrating my words here. And I am not even going to get started on you purporting to teach me or anyone else about the rules of evidence, including the rule against hearsay. On that note, I am sure you are up to speed on the current state of the law about the exceptions to the hearsay rule and you are able to discuss intelligently how the hearsay principles laid down by the Supreme Court of Canada in _R_. v._ Khelawon_, [2006] 2 S.C.R. 787 have been applied in Canadian criminal and civil courts and the years since that judgment was handed down.


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## Earl (Apr 5, 2016)

Prairie Guy said:


> Maybe you'll learn a lesson too? You nitpicked over a few minor general maintenance issues and they found a better offer. It may or may not be morally right but you still lost the house.


This is what I was thinking too. A home inspection is pretty much guaranteed to uncover at least some minor defects (mine did), and buyers don't normally use that as an excuse to renegotiate the price unless the defects are serious.

In any case I am intrigued, and really curious to see how this plays out. I still don't think OPs lawsuit will be successful, but who knows maybe I'm wrong.


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## scorpion_ca (Nov 3, 2014)

Prairie Guy said:


> Maybe you'll learn a lesson too? You nitpicked over a few minor general maintenance issues and they found a better offer. It may or may not be morally right but you still lost the house.


Yes, I will learn too. 

In future, I would put another condition in the agreement that if the seller retract their offer after negotiation, they would have to pay $5k.


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## scorpion_ca (Nov 3, 2014)

Earl said:


> This is what I was thinking too. A home inspection is pretty much guaranteed to uncover at least some minor defects (mine did), and buyers don't normally use that as an excuse to renegotiate the price unless the defects are serious.
> 
> In any case I am intrigued, and really curious to see how this plays out. I still don't think OPs lawsuit will be successful, but who knows maybe I'm wrong.


I have sent all my docs including communication between realtors to Mukhang pera and let's see what he finds about it. As a first time home buyer, I will be learning from my mistakes.


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## marina628 (Dec 14, 2010)

Scorpion ...if you put any condition that I have to pay you $5000 I would not even read your offer.A few thousand in small fixes is not a big deal when you are spending $400,000 the next time you may have to pay $10,000 or more on a house you do not like as much.


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## sags (May 15, 2010)

Mukhang pera said:


> Well done The Honourable Mr. Justice sags. Providing us with a statement of Ontario law from an unofficial Ontario website. Had you read anything there before posting, you would know that we are talking about Alberta. Then, you might have looked at the Alberta Provincial Court website, which can be taken as somewhat authoritative. It says this about costs (almost identical to BC practice):
> 
> *Requests for Default Judgment*
> Clerks have the authority under the Provincial Court Civil Procedure Regulation to approve recoverable costs based on the steps taken up to Judgment. This may occur when a party is making a Request for Default Judgment against a party who has failed to file a Dispute Note on a debt or a liquidated demand claim. _This may include costs that the party has incurred for filing the Civil Claim, service of the Civil Claim, and registry searches._ [emphasis added] Receipts will need to be provided, with the exception of the filing fee for the Civil Claim.
> ...


No disagreement that the clerks apply costs to a judgement for a default, but this discussion isn't about a default judgment. 

As to hearsay evidence, in the form of emails, text messages, or other forms of social media, while emails were at one time considered strong evidence, recent software technology is available that can alter the content of messages while retaining the original date stamp. It has raised the issue of legitimacy of emails. They may be accepted into evidence, but the judge may not accept them without a witness to confirm their authenticity. Any defense lawyer worth his diploma would immediately object to the entrance of emails into evidence and point out that he cannot cross examine emails. Of course, judges can do whatever they want, subject to appeal at a later date.

I recently attended a criminal trial where the judge wouldn't allow a pile of text messages from the defense when the Crown objected they could have been tampered with.

The preferred solution appears to be that the parties to emails must attend court and testify. I suppose in high level crimes the emails could be retained from the telco.

In any event, the OP needs to consider the form in which they intend to present the emails to the court and consider requiring the real estate agents to testify.

He may want to consider the use of this technology.

https://www.titanfile.com/blog/email-as-evidence/


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## Mukhang pera (Feb 26, 2016)

sags said:


> No disagreement that the clerks apply costs to a judgement for a default, but this discussion isn't about a default judgment.


Can you read, or are you being deliberately obtuse, or what?

I quoted the passage about default judgments because it sets out costs recoverable. On a very superficial and illiterate reading, one could, I suppose, think that that paragraph says all there is to say about costs. However, if you read on, under the heading *Costs Awarded by the Court*, you will see the words: If you are successful in your claim, *any costs that are incurred as indicated above may be included in the Judgment awarded by the Court*. Now to just what, do you suppose, do the words "indicated above" refer? Do you think it might possibly be an incorporation by reference of the advice about costs that appears under the Default Judgment heading? If it is not, please point to some other costs advice "as indicated above".


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## sags (May 15, 2010)

The way I read the information is that court clerks gather up receipts from both parties to calculate the allowable costs that are applied to the final judgement.

The court clerks do not have the authority to award legal expenses in the final judgement. The Judge will calculate what that would be depending on the circumstances.

I would suggest the following link to a Paralegal company that operates in the Alberta Small Claims Court shows that judges include legal costs in their judgements.

_When you hire U-SUE, as your Agent we can claim back what is known as “Party to Party Costs”. The courts know that we charged a fee for our service therefore will grant costs to offset your costs. Costs that are awarded back in court are usually calculated on a percentage basis between 5 – 10% of the Judgment amount – for each 1/2 day of trial. These “party to party” costs are determined by the Judge. Sometimes the Judge awards costs that are higher than what you paid U-SUE!
_
https://usue.ca/frequently-asked-question/


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## scorpion_ca (Nov 3, 2014)

sags said:


> No disagreement that the clerks apply costs to a judgement for a default, but this discussion isn't about a default judgment.
> 
> As to hearsay evidence, in the form of emails, text messages, or other forms of social media, while emails were at one time considered strong evidence, recent software technology is available that can alter the content of messages while retaining the original date stamp. It has raised the issue of legitimacy of emails. They may be accepted into evidence, but the judge may not accept them without a witness to confirm their authenticity. Any defense lawyer worth his diploma would immediately object to the entrance of emails into evidence and point out that he cannot cross examine emails. Of course, judges can do whatever they want, subject to appeal at a later date.
> 
> ...


My realtor asked me to put his name as a witness. So, he will be presenting at the court.

Thanks for the link, I will check it out.


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## Mukhang pera (Feb 26, 2016)

sags said:


> T
> I would suggest the following link to a Paralegal company that operates in the Alberta Small Claims Court shows that judges include legal costs in their judgements.


Difficult to imagine a source of legal authority more authoritative than a firm of non-lawyers carrying on business under the name and style of "U-SUE".

So I checked this source:

*Calgary Legal Guidance,* funded in part by the Alberta Law Foundation. 

https://clg.ab.ca/programs-services/dial-a-law/things-to-consider-before-going-to-court/

It mentions ability to recover disbursements, nothing about legal fees.

Perhaps even better is to rely on the law laid down by the AB legislature. In this case the relevant law is the PROVINCIAL COURT CIVIL PROCEDURE REGULATION, Alberta Regulation 176/2018, which provides, in part:


*Litigation expenses recoverable as costs*

39(1) The litigation expenses recoverable as costs between the parties are as follows:
(a) for fees paid to the clerk under section 1(a) to (d) of the Provincial Court Fees Regulation (AR 18/91), the amount of the fees actually paid;
(b) for service of a civil claim

(i) by a private process server, the actual cost, for all activities necessary for effecting service, including
(A) searches of any registry maintained by the Government of Canada, the Government of Alberta or a local authority,
(B) service attempts by the process server, and
(C) travel by private vehicle, in accordance with any directive issued by the Treasury Board respecting travel, meal and hospitality expenses, as though the private process server were an employee as defined in the Public Service Act,
(ii) by a method of mailing as designated in the Provincial Court Act or this Regulation, the actual cost, and
(iii) by a method directed by the Court, the amount as fixed by the Court;

(c) for the search of any registry maintained by the Government of Canada, the Government of Alberta or a local authority, the actual cost of the search;
(d) for the preparation by an expert witness of an expert witness’s report, or for the preparation by an expert witness for a trial, and for the expert witness’s attendance at the trial, the amount as fixed by the Court;
(e) for the attendance of a witness at a trial, the amount of the allowance prescribed under section 28 actually paid or reimbursed, as the case may be, to the witness to travel to, attend at and return from the location of the trial;
(f) for a default judgment entered under section 6, the amounts set out in clauses (a) to (c).
(2) Despite subsection (1)(d) and (e), the Court may, in its discretion, reduce or disallow the costs claimed for a witness if the Court is of the opinion that
(a) the witness did not present evidence that advanced the claim or defence, or
(b) a proposed expert witness
(i) was not qualified by the Court as an expert witness, or
(ii) gave opinion evidence that duplicated opinion evidence given by another expert witness at the hearing.
(3) The Court may, in its discretion, award costs for additional classes of litigation expenses not specified in subsection (1).

So, much like BC, the Alberta legislation contemplates awarding certain classes of disbursements only. The last line quoted above allows for an award of "additional classes of litigation expenses", which could open the door to legal fees. This morning I called a lawyer I know in Calgary. She says she has not handled a small claims case for awhile, but when she did, she never saw costs awarded. Admittedly, she is an immigration lawyer and also does some criminal defence work, so cannot be taken as the last word on the subject, but i'll stick to my view that taking an action to small claims court in AB and losing is unlikely to result in a crippling award of legal costs.

Again, the underlying premise of a small claims court is to act as a court for the ordinary person who has a claim to be heard in a somewhat informal manner (I know I'll get more argument on this from sags) but that includes a more elastic application of the rules of evidence. It is intended that litigants appear on their own, without counsel and it is recognized that they might not be well-schooled in the law, the rules of civil procedure, etc. Some claims, while appearing meritorious to the individual litigant, might appear less so to a judge. While I can see an unsuccessful claimant being mulcted in costs where the claim is wholly devoid of merit, is frivolous and vexatious, such will not generally be the case. 

I will say that, in BC, the law is more certain. Lawyers are to be kept out of the small claims process and legal fees may never be recovered:

*SMALL CLAIMS ACT*, [RSBC 1996] CHAPTER 430

*Costs*
19 (1)The Provincial Court may determine, in accordance with the rules, the amount of costs that are payable by one party in a proceeding under this Act or the rules to another party in the proceeding or it may direct a registrar of the court to determine the amount.

(2)If a registrar of the Provincial Court determines the amount of costs, any party to the proceeding may ask the court to review the registrar's decision on costs.

(3)If the rules provide for a reasonable fee, charge or other expense, the Provincial Court or a registrar of the court may determine what amount is reasonable.

(4)*The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor's fees to another party to the proceeding.*

Not long ago, BC introduced the "Civil Resolution Tribunal" which now deals with most claims under $5,000. I just finished handling my first case there. A construction law case. A well-heeled but disgruntled homeowner decided not to pay the last $4,000 owing to my "client" for a construction project. The procedure at the CRT is a bit unsettling. Online only. No oral hearing. No ability to cross-examine or to have witnesses testify in person. A form of "rough justice". My client has no internet connection and scant ability to handle any kind of paperwork, even cyberspace paper. So I took it on. It included a telephone "mediation" session. 

The small claims court here has used a forced mediation session as a pre-trial mechanism here for some years. In my view, a complete waste of time. By the time process has been issued, the battle lines are drawn and each side is convinced of the rightness of their cause and wants their day in court.

So, of course, the phone mediation session ended with the predictable result. The defendant offered peanuts to settle and my client offered to shave peanuts off the final bill. So no deal. That required each of us to submit written argument within about 8 days as I recall. I prepared a stellar piece of work, only to be told on uploading that I was limited to 10,000 characters and my argument was over 12,000. Like I said. Rough justice. So I had to spend an hour or so, closely inspecting every point and every word and deciding on what could be scrapped, while still retaining the essence. Not fun, but I did it. 

I had no idea what to expect as to final decision. Simply a crapshoot. We had paid $100 to file the claim and another $75 to proceed to adjudication as punishment for our obdurate refusal to accept a piss-poor mediated settlement. In the end, we got all that we asked for, plus "costs" of the $175 paid out and a bit for prejudgment interest. I probably devoted 10 hours to the file. Had I charged legal fees, the bill would have been about $4,000. Sags is right. The defendant should have been ordered to pay me that. Plus punitive, aggravated and exemplary damages! 

If I am ever in Provincial Court again (I hope I am not asked), when the bench asks what relief I am seeking for my client, I shall not be reticent to say: "We want justice, with costs."


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## sags (May 15, 2010)

scorpion_ca said:


> My realtor asked me to put his name as a witness. So, he will be presenting at the court.
> 
> Thanks for the link, I will check it out.


That's good, but you really need to get the seller's realtor to court to prove the seller was aware of the context of the negotiations.


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## scorpion_ca (Nov 3, 2014)

sags said:


> That's good, but you really need to get the seller's realtor to court to prove the seller was aware of the context of the negotiations.


Good point, thanks.


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## Longtimeago (Aug 8, 2018)

I just can't imagine getting this worked up over a house purchase that fell through for whatever reasons. I 'get' it is now not a question of money but the 'principle' and wanting to see 'justice' being done. But at the same time, my time and energy would be worth more to me than doing so in this case. It isn't like looking for justice over a major crime of some kind.

I recall many decades ago, I was driving across Toronto on the 401 Highway and SOME DAMN INCONSIDERATE ******* CUT ME OFF. I was yelling at him through the windshield of my car and venting profusely.

My Brother who was sitting beside me said, 'you know, right now you are the one starting down the road to an ulcer and that guy is just driving along as happy as could be and feeling fine with himself and his world. You could take his license number (nowadays I guess you would have it all captured on dashcam), hire a lawyer, take it to court for something and continue down the road towards an ulcer OR you could learn when to let some things go and avoid the ulcer. Your choice.'

To me scorpion_ca, your on the road to an ulcer over something that really isn't worth the 'principle of it'.


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## sags (May 15, 2010)

Family lawyer says to a guy trying to get all his stuff from ex...You can pay me a $5000 retainer to get back your furniture damaged or missing, or you can pay $5000 for new furniture.

Just saying.....proving a point can be expensive, unless you like a challenge and represent yourself in small claims court. Then, maybe if the satisfaction/settlement is worth the time.


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## scorpion_ca (Nov 3, 2014)

Longtimeago said:


> I just can't imagine getting this worked up over a house purchase that fell through for whatever reasons. I 'get' it is now not a question of money but the 'principle' and wanting to see 'justice' being done. But at the same time, my time and energy would be worth more to me than doing so in this case. It isn't like looking for justice over a major crime of some kind.
> 
> I recall many decades ago, I was driving across Toronto on the 401 Highway and SOME DAMN INCONSIDERATE ******* CUT ME OFF. I was yelling at him through the windshield of my car and venting profusely.
> 
> ...


Thanks for your suggestion but this is the problem of general public...always try to ignore and move on when someone screws you. I spent a lot of time to get my mortgage approval and spent around $400 for inspection and now it's my fault to take them to the court for justice. It not going to happen with me.


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## scorpion_ca (Nov 3, 2014)

sags said:


> Family lawyer says to a guy trying to get all his stuff from ex...You can pay me a $5000 retainer to get back your furniture damaged or missing, or you can pay $5000 for new furniture.
> 
> Just saying.....proving a point can be expensive, unless you like a challenge and represent yourself in small claims court. Then, maybe if the satisfaction/settlement is worth the time.


I got a ticket failure to obey peace officer in 2009. The ticket was $172 without any demerits point. I went to see the crown prosecutor and he offered me $56 fine. He told me that he doesn't have any authority to cancel the ticket. Then I went to the court and the police officer told me that if he wins he would add 3 demerit points on my record. I won the case after the trail and the satisfaction/feelings I get till to date is amazing. Money can't buy that feelings....


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## sags (May 15, 2010)

Good luck on your quest then.

There are lots of videos on Youtube on navigating your way through Small Claims Court.


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## money_talks (Mar 21, 2020)

scorpion_ca said:


> Yes, we are communicating with the realtor of seller by email and text messages and we have kept it as evidence. How much compensation should we be seeking? We were really excited as a first time home buyer. Now very upset...


You can claim the actual costs associated with the sale agreement, which means you need a proof. Canadian courts normally don't award mental and emotional distress unless accompanied with a medical bill. With regards to the amendment, if the seller never signed one, then buyer would have normally sent a mutual release if she wants to get out of the deal. If not, the buyer has to accept what is written in the agreement of purchase and sale.


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## scorpion_ca (Nov 3, 2014)

money_talks said:


> You can claim the actual costs associated with the sale agreement, which means you need a proof. Canadian courts normally don't award mental and emotional distress unless accompanied with a medical bill. With regards to the amendment, if the seller never signed one, then buyer would have normally sent a mutual release if she wants to get out of the deal. If not, the buyer has to accept what is written in the agreement of purchase and sale.


What do you mean by the actual costs associated with the sale agreement? The price was $340k in the agreement and we deposited 10k. However, they have returned the deposit. Does Canadian court award anything for making an example?

What was the responsibility of the realtor of seller in this matter? Although the realtor followed the lawful instructions, I think it is the realtor's responsibility to educate the client about the contract law.

Although our realtor sent them the amendment before the deadline, the seller didn't sign it as they refused to provide compensation for defectives even though they offered the compensations. Our amendment indicated that we removed the financing and inspection conditions and the seller would provide or reduce $2k compensation for defectives. Our realtor never sent any mutual release ....not sure if it is required in AB. As a buyer, we accepted what they offered us for compensation for defectives and removed the conditions. The seller changed her mind as she received a better deal.


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## Mukhang pera (Feb 26, 2016)

scorpion_ca said:


> What do you mean by the actual costs associated with the sale agreement? The price was $340k in the agreement and we deposited 10k. However, they have returned the deposit. Does Canadian court award anything for making an example?


I'll be interested too in money_talks' reply. Money talks talks in very sure terms, so I'll trust that money_talks is a lawyer.


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## money_talks (Mar 21, 2020)

scorpion_ca said:


> What do you mean by the actual costs associated with the sale agreement? The price was $340k in the agreement and we deposited 10k. However, they have returned the deposit. Does Canadian court award anything for making an example?
> 
> What was the responsibility of the realtor of seller in this matter? Although the realtor followed the lawful instructions, I think it is the realtor's responsibility to educate the client about the contract law.
> 
> Although our realtor sent them the amendment before the deadline, the seller didn't sign it as they refused to provide compensation for defectives even though they offered the compensations. Our amendment indicated that we removed the financing and inspection conditions and the seller would provide or reduce $2k compensation for defectives. Our realtor never sent any mutual release ....not sure if it is required in AB. As a buyer, we accepted what they offered us for compensation for defectives and removed the conditions. The seller changed her mind as she received a better deal.


Sorry about the late reply.

First, for the deposit, if you accepted the return, which implies that you accepted the seller's position of not agreeing to amendment. But the agreement of purchase and sale is still valid unless ou sent them a mutual release. I am not sure about the practice in AB.

With regards to realtors' obligation, they go by the instruction of their clients. In your case, your realtor should go by your instruction.

Finally, the seller did not accept the removal of the condition in exchange of the compensation, which means that there is no agreement because it did not fulfill the condition.


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## money_talks (Mar 21, 2020)

Mukhang pera said:


> I'll be interested too in money_talks' reply. Money talks talks in very sure terms, so I'll trust that money_talks is a lawyer.


haha, i am not a lawyer. I just tried to help her in terms of the legal aspect.


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## scorpion_ca (Nov 3, 2014)

money_talks said:


> Sorry about the late reply.
> 
> First, for the deposit, if you accepted the return, which implies that you accepted the seller's position of not agreeing to amendment. But the agreement of purchase and sale is still valid unless ou sent them a mutual release. I am not sure about the practice in AB.
> 
> ...


So, that means I don't have any chance for damages at the court. Wasted money for inspection and time to get mortgage approval for nothing? 

We never sent them any mutual release. My understanding is that we "The buyer" remove the condition. I am still gathering info about the contract law in AB. When someone offers something and the other party accepts it, then it's a legally binding contract. I could be wrong. The seller offered us compensation for defectives in writing by email and we accepted it and subsequently remove the condition. After that, the seller changed her mind as she received a better offer. The house is still active and let's see how much they get for it.


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## scorpion_ca (Nov 3, 2014)

Just got the notification that the house is sold for $348k.


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## money_talks (Mar 21, 2020)

scorpion_ca said:


> So, that means I don't have any chance for damages at the court. Wasted money for inspection and time to get mortgage approval for nothing?
> 
> We never sent them any mutual release. My understanding is that we "The buyer" remove the condition. I am still gathering info about the contract law in AB. When someone offers something and the other party accepts it, then it's a legally binding contract. I could be wrong. The seller offered us compensation for defectives in writing by email and we accepted it and subsequently remove the condition. After that, the seller changed her mind as she received a better offer. The house is still active and let's see how much they get for it.


The contract is not binding until conditions to it is fulfilled. In your case, the condition of financing and home inspection should have been removed. Removing conditions can be done in two ways: an amendment to the agreement or a waiver. Waiver means that the buyer relinquish the right to get out of the deal, which does not require the agreement of the seller whereas the amendment requires the agreement of the seller. Normally these two have no big difference but in your case, the seller wanted to get out of the deal and the buyer wanted to bind the seller, therefore, the waiver would have worked better for you. To my understanding, you don't have a binding agreement. I hope that you could save at least the home inspection fee. But the seller will probably say that you did not give a waiver. Real carefully the wordings of the condition.


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## Longtimeago (Aug 8, 2018)

scorpion_ca said:


> Just got the notification that the house is sold for $348k.


There goes a happy buyer and a happy seller with no thoughts whatsoever in their mind as to your continuing unhappiness and how you intend to compound that unhappiness rather than letting it go and getting on with your life.

Here we are in a pandemic and you want to waste your time crying over spilt milk.


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## scorpion_ca (Nov 3, 2014)

money_talks said:


> The contract is not binding until conditions to it is fulfilled. In your case, the condition of financing and home inspection should have been removed. Removing conditions can be done in two ways: an amendment to the agreement or a waiver. Waiver means that the buyer relinquish the right to get out of the deal, which does not require the agreement of the seller whereas the amendment requires the agreement of the seller. Normally these two have no big difference but in your case, the seller wanted to get out of the deal and the buyer wanted to bind the seller, therefore, the waiver would have worked better for you. To my understanding, you don't have a binding agreement. I hope that you could save at least the home inspection fee. But the seller will probably say that you did not give a waiver. Real carefully the wordings of the condition.


Would you mind to review the attached contract specially 8, 12 & 13 points and amendment? Thanks.


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## money_talks (Mar 21, 2020)

The clause 8.4 clearly states what should have been done.


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## money_talks (Mar 21, 2020)

My final word for you. Don't do anything incurring any more cost, regardless of monetary or emotional. Is it worth?


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## scorpion_ca (Nov 3, 2014)

money_talks said:


> The clause 8.4 clearly states what should have been done.


Isn't that amendment count as a satisfied of condition since we sent them prior to the condition removal time?


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## potato69 (Mar 21, 2018)

I haven't read this whole thread but if there is a way you can get out of a sale for a house in Alberta I would jump at it. That province is toast. Pulease Wexit! haha


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## scorpion_ca (Nov 3, 2014)

potato69 said:


> I haven't read this whole thread but if there is a way you can get out of a sale for a house in Alberta I would jump at it. That province is toast. Pulease Wexit! haha


I am already out. Not sure if the price would drop a lot in Calgary. However, it may drop more on other part of AB.


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## money_talks (Mar 21, 2020)

scorpion_ca said:


> Isn't that amendment count as a satisfied of condition since we sent them prior to the condition removal time?


No. An amendment requires agreement from both sides. In your case, the seller did not sign on it, right?


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## mrbizi (Dec 19, 2009)

Sorry OP, you never had a firm deal (I’m a realtor). For the deal to have firmed up, either the seller had to accept your amendment OR you should have sent the seller a waiver removing the home inspection condition (in which case you have to accept the deficiencies you found during the home inspection).

In the future, you can sign both an amendment and a waiver. If the seller does not accept your amendment and you still want the house - you can have the waiver faxed to the sellers brokerage before the deadline (keep a copy of the fax confirmation sheet). The waiver does not need to be accepted by the seller, it only has to be received by anyone in the seller’s brokerage. once received by the seller’s brokerage, this then firms up the deal. This way you control your own destiny.


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## Mukhang pera (Feb 26, 2016)

With all due respect to mrbizi, being a realtor does not necessarily clothe one with expertise in contract law. Indeed these kinds of difficulties in land sales deals frequently arise because, in many cases, all of the paperwork is handled by realtors who are not well-versed in contract law. This case appears to provide a good example of that shortcoming. Neither agent appeared to have a firm grasp of what really needed to be done. In most cases, the parties' and agents' shortcomings, and sloppy documents, are of little moment because both sides want the deal to go through and neither has any interest in subjecting the transaction to microscopic scrutiny to find an escape.

Here, at one point, the vendors sent email to their agent outlining what the vendors were prepared to do to resolve any difficulties over the home inspection. The vendors' agent sent that email on to the purchasers' agent, saying that it should solve the problem and, if not, then please send along a non-waiver by the 9 p.m. deadline. 

The purchasers' agent responded with a contract amendment form, purporting to waive the subject to financing clause and, in effect, inserting as a contract amendment the vendors' agreement re deficiencies and, in effect, asking the vendors to sign. In hindsight, that was a less-than-ideal approach. The agent was perhaps lulled into thinking that all was well and there was no need to be hyper vigilant. The agent was as yet unaware that the vendors were quickly becoming reluctant vendors, looking for a way out, despite their indications to the contrary.

I cannot say for sure how the Alberta courts would see this (and I'll take it that mrbizi is in Alberta), but I see at least 3 ways to view the situation. 

The first is to construe what happened as the OP suggested upthread, namely the vendors effectively made a counteroffer which the purchasers accepted. That acceptance is made clear in the amendment form that was sent. That could be seen as resulting in a new and binding contract.

A second way of looking at it is that the amendment document sent evidences a clear intention to waive the inspection condition. It clearly sets out that, with the concessions made in writing (email), and confirmed by their agent's email, the purchasers are now content to proceed. If there were any doubt, it is clarified by the purchasers' agent's email to the vendors' agent at 5:40 p.m. on the 16th, saying "We are proceeding to make the deal". Rather plain, unambiguous language. A court might well see that and what preceded it as an effective waiver in writing. After all, the contract document itself speaks of waiver in writing, but it does not prescribe a form or particular mode of writing.

A third way of looking at it is that the matter is one of _strictissimi juris _and there is a very specific way these things must be done in writing and the law assumes that everyone knows _exactly _the very precise rules to be followed and even the slightest deviation from those rules will result in a nullity. In that case, the OP's case might well founder. I'll agree that the way the purchasers and their agent handled the matter fails to rise to a standard of perfection. BC courts have held in somewhat analogous circumstances that what is required is "meticulous observance" of the rules, but that "meticulous observance" does not mean "ridiculous observance".

To me, while the matter is certainly not free of doubt, I believe the OP has an arguable case. The modern approach of most courts to contract law is that the courts are not there to destroy bargains and parties should be held to their agreements wherever possible. If it's possible on the evidence to find a contract, one should be found. Again, here there is a reasonable basis for saying the parties made a deal and that the vendors are relying on a pretty slim reed to support their claim that no contract came into being.


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## mrbizi (Dec 19, 2009)

All this for $400? Most people won’t bother to be honest.


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## Mukhang pera (Feb 26, 2016)

I don't think the OP said he saw his damages as limited to $400. 

If he has a case, it's worth quite a bit more. In post #77,_ supra_, he said the vendors sold for $348K. His contract price was for $340K. So, right there is a good indicator of the value of one head of damages, namely, the difference between the contract price and what the sellers gained by breaching their contract. I would ask for that $8,000 as damages. Plus the $2,500 or whatever it was the vendors agreed to pay for deficiencies. Plus costs related to what may have been an unnecessary move, etc.

In the circumstances, if I were prosecuting the claim, while I would not ask (as the OP suggested in his first post) for damages for mental suffering, etc., I would probably ask for a modest sum (say $3,000) as punitive damages. Perhaps a bit of a stretch, but not a completely outrageous a proposition.


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## scorpion_ca (Nov 3, 2014)

money_talks said:


> No. An amendment requires agreement from both sides. In your case, the seller did not sign on it, right?


Yes, the seller didn't sign the amendment as the realtor of seller clearly stated that they received a better offer. If they hadn't received a better offer, the seller would definitely complete the deal with me.


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## scorpion_ca (Nov 3, 2014)

mrbizi said:


> All this for $400? Most people won’t bother to be honest.


It's not about $400. What would happen if the seller didn't receive that better offer? They would definitely complete the deal with us. 

If we wanted to cancel the deal at the eleventh hour, they would keep our deposit of $10K plus may come back to us for any loss.

After speaking with our realtor, we feel that the realtor doesn't encourage us to sue the seller as the realtor may have to work with the other realtor in future. The realtor doesn't suffer or lose anything.The realtor is there to make money for themselves.


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## scorpion_ca (Nov 3, 2014)

Mukhang pera said:


> I don't think the OP said he saw his damages as limited to $400.
> 
> If he has a case, it's worth quite a bit more. In post #77,_ supra_, he said the vendors sold for $348K. His contract price was for $340K. So, right there is a good indicator of the value of one head of damages, namely, the difference between the contract price and what the sellers gained by breaching their contract. I would ask for that $8,000 as damages. Plus the $2,500 or whatever it was the vendors agreed to pay for deficiencies. Plus costs related to what may have been an unnecessary move, etc.
> 
> In the circumstances, if I were prosecuting the claim, while I would not ask (as the OP suggested in his first post) for damages for mental suffering, etc., I would probably ask for a modest sum (say $3,000) as punitive damages. Perhaps a bit of a stretch, but not a completely outrageous a proposition.


I have found that the civil law duty counsel at Calgary Courts Centre offers free half an hour lawyer service (Home Page - Pro Bono Law Alberta) but it's suspended now due to Covid-19. I will speak with them once they start again.

Our plan is to ask for following damages - 
$7.5 for bank draft for $10k deposit
$400 for inspection
$800 rent per month (not sure how many months)
$8,000 (Variance between contract and sold price)
$2,000 for defectives
$4,000 for punitive damages (for me and spouse; both were the buyers)
Court fee (I will have to find out if we can claim that)


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## newfoundlander61 (Feb 6, 2011)

What a tanlge your in. With everything going on you will be at this for a long long time.


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## mrbizi (Dec 19, 2009)

“
Our plan is to ask for following damages - 
$7.5 for bank draft for $10k deposit
$400 for inspection
$800 rent per month (not sure how many months)
$8,000 (Variance between contract and sold price)
$2,000 for defectives
$4,000 for punitive damages (for me and spouse; both were the buyers)
Court fee (I will have to find out if we can claim that)”

Dream on. Pls report back here the result of your “adventure“. I‘m betting you won’t.


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## Mukhang pera (Feb 26, 2016)

I must say I do not understand all the negativity about the OP seeking to pursue a remedy for breach of contract.

As I have said, the matter is not free of doubt. If the law was always that clear, we would have no need of courts. Here, the matter is within the monetary jurisdiction of the Small Claims Court and it should be a fairly quick, simple and inexpensive forum in which to present the claim. 

Again as I have said, there's a good arguable case for breach of contract. In lay terms there is even more than an arguable case. The breach is clear. The OP offered and the vendors accepted $340k for the house. The offer was subject to inspection. Post-inspection the OP asked for some concessions. Maybe not what all here would have done, but not wholly unreasonable to ask. In fact, the vendors played along and said okay, we'll throw in a few dollars to keep the deal on track. They could have simply said "No, we are not interested in any any changes to our deal. Take it or leave it." But no, they had their agent write to the OP's agent saying you have scored a victory, the vendors will give most of what you want. They set out in plain language that to which they would agree. The OP's agent followed up with a document confirming the OP's agreement to the vendors' proposal and, after, with an email saying we are going ahead with the deal.

Now, at this point, the vendors are getting a bit devious. They know a better offer is out there and they are regretting their deal with the OP. So they decided that, since the OP's agent had sent along a contract amendment form, even though it purported to embody what had been agreed, by the simple device of not signing, they could bring the contract to an end. Tough luck for the OP and his out-of-pocket costs to get to that stage, plus the fact that he had committed to giving up his rental premises on the strength of the deal he thought he had. Here, on cmd, some are cheering for the vendors, telling the jilted OP to suck it up buttercup. Maybe this is what the commercial world is coming to. One's word need mean nothing if one is a better gamer. Keeping your word is for sissies. Nice guys finish last and all of that good stuff. 

I am unfamiliar with the workings of the Alberta Small Claims Court, but I suspect it works much the same as that here in BC and it need not become a litigation extravaganza to present one's case there. 

Here in BC, most cases under $5,000 are now routed to the new "Civil Resolution Tribunal". I just finished presenting a case in that forum for a construction plaintiff. His claim for unpaid work was in the range of $4,000 out of about $25,000 billed. The defendant said the work was poorly performed and overpriced. The matter could not have been easier to deal with. All online! You can do the whole thing, start to finish, sitting at your computer. You fill in a form, send it to the tribunal and the other side, and they have time to respond. If they defend the claim, both sides present written argument online (limited to 10,000 characters, I discovered to my chagrin after cobbling together an award-winning submission of over 12,000) and it goes to an adjudicator who comes back with a written decision a few weeks later. Stupendous! Amazing! 

There is no need for the OP here to be pusillanimous. He should not be faulted for seeking his day in court. For sure, the desired outcome is not guaranteed. Litigation is always a crapshoot to some extent. But his case is not utterly devoid of merit.


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## andrewf (Mar 1, 2010)

Thanks MP, it is interesting to hear about how access to courts is being improved using technology.


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## Mukhang pera (Feb 26, 2016)

Thank you too andrew.

Yes, technology is definitely assisting. In some ways, forums such as the Civil Resolution Tribunal offer something of a form of "rough justice", since they lack all the trappings of a formal court setting, where the parties and their witnesses appear in person, can be subject to cross-examination, etc. But then, in the Small Claims setting, most self-represented types do not perform particularly well as skilled cross-examiners, nor to they shine at presenting oral argument. So not all that much is lost by going online. I dare say that most keyboard warriors who lack legal training probably fare better online than in the hurly burly of a courtroom setting.

I mentioned being told my written argument had to be confined to 10,000 characters once I set out to copy and paste it into the online form. There must have been an instruction to that effect that I missed seeing. That was probably the most time-consuming part of the whole endeavour for me. I thought I had already made my points in concise format, with an admirable economy of language. Then I had to find a way to convey the same arguments, but with one-sixth of the bulk trimmed. It took be a couple of hours perhaps to go through my submission line-by-line looking for ways to shorten it. Every keystroke was considered a "character", so I deleted some spaces. I used synonyms where I could replace a long word with a shorter one. I omitted use of definite and indefinite articles here and there and ended up with some rather stilted prose, but got the job done. We got judgment for the amount claimed.


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## sags (May 15, 2010)

MP....It would appear that you are saying that vendors can't change their mind if presented with an Amendment to the original contract, if there is some proof of ongoing negotiations by the realtors.

What if the vendor decided they didn't want to sell their home because they didn't agree with the Amendment after further consideration ?

Would they be forced by the courts to sell the property despite there being no signed agreement ?

Perhaps then the question to ask is at what point in the process does the vendor lose their right to change their mind.


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## Mukhang pera (Feb 26, 2016)

sags said:


> MP....It would appear that you are saying that vendors can't change their mind if presented with an Amendment to the original contract, if there is some proof of ongoing negotiations by the realtors.
> 
> What if the vendor decided they didn't want to sell their home because they didn't agree with the Amendment after further consideration ?
> 
> ...


What I see in this case is that the vendors assented to the "amendment". In fact, the amendment was of their own construction. They said to their realtor, in effect "We'll pay X dollars to rectify deficiencies in order to keep this deal on foot." Their agent corresponded with the buyers and their agent, who sent back word, using a contract amendment form, saying, in effect: "We agree to the change in terms offered by the seller." That, I see as quite arguably the _punctum temporis_ where the contract gelled. There was no more than needed to be done. That was, in law, _consensus ad idem, _a meeting of the minds. Both parties now had a mutual understanding of the terms on which their contract would be carried out. What more needed to be done? 

Here, of course, the vendors are bellowing that what needed to be done was the affixing of their signatures to the contract amendment form. A court just might find that to accept that proposition would be a triumph of form over substance. Otherwise we are left with the proposition that they were free to go back on their word. They could say (as they indeed have done), "Yes, we know we agreed to sell to you with X dollars allowed for deficiencies, but despite our words and our realtor's deeds, and yes, despite all appearances to the contrary, we are able to duck out by resort to the simple expedient of refusing to sign a confirmation of all that we have represented to you." Will a court find that that argument carries the day? Maybe. I would better be able to answer if I had a familiarity with Alberta case law. Possibly there is there too some statutory provision that might impact all of this. Many provinces have a "statute of frauds" and call it that. It is now known in BC as the Law and Equity Act. It sets out what must be in writing with respect to contacts for the sale of land. In BC, the relevant provision is this:

*Enforceability of contracts
59* ...

(3) A contract respecting land or a disposition of land is not enforceable unless

(a) there is, in a writing signed by the party to be charged or by that party's agent, both an indication that it has been made and a reasonable indication of the subject matter,

(b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or

(c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person's position that an inequitable result, having regard to both parties' interests, can be avoided only by enforcing the contract or disposition.

In the case at bar, s. 59(3)(a) is perhaps of the greatest significance. Has that subsection been met in this case?

I am offering comments in this matter based on my knowledge of BC law and on what is probably a fair guess that it is not vastly different from Alberta law touching upon land sales.


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## Mukhang pera (Feb 26, 2016)

money_talks said:


> The clause 8.4 clearly states what should have been done.


Actually, cl. 8.4 is hardly a model of the draftsman's art. It reads thus:

_Each party will give the other written notice that:
(a) a condition is unilaterally waived or satisfied on or before its Condition Day. If not, this contract will end after the time indicated for that Condition Day; or
(b) a condition will not be waived or satisfied prior to its Condition Day. This contract will end upon that notice being given._

The clause actually makes no sense. It says "each party" will give written notice. Where, as here, the vendors have stipulated for no conditions, what notice have they to give? Are they somehow to participate in the purchasers' giving of notice? 

Also, both (a) and (b) yield the same result. So why have both? If notice of waiver or satisfaction is not given, the contract ends. So then, why even bother having a provision for the K to end by giving notice of refusal to waive?

A more felicitously-worded clause would be:

_Each condition contained in this agreement is for the sole benefit of the party indicated, where so indicated and unless each condition is waived or declared fulfilled by written notice given by the benefiting party to the other party on or before the date specified for each condition, this contract will thereupon be terminated and any deposit paid hereunder shall be immediately returned. _

Anyway, getting back to what occurred here, while money_talks claims legal expertise here, as does mrbizi, I'll stick with my view that we have here a reasonably arguable case that the purchasers, through their agent, effectively communicated their acceptance of the vendors' offer to compensate for deficiencies and effectively "waived" the applicable condition precedent, hence there was nothing more that needed to be done. The vendors did not have to sign their acceptance of that to which they had already agreed. The absence of their signatures did not result in a _nudum pactum, _a thing writ in water.


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