INTERESTING CASE: Paradise Homes North West Inc. v. Sidhu, 2019 ONSC 1600
Buyer enters APS dated March 4, 2017 to purchase 10 Truro Circle in Brampton, Ontario for $819,990.
APS required payment of pay five deposits. 4 were paid by the Buyer and the 5th was defaulted. Buyer requested an extension and subsequently the cheque was returned NSF.
Buyer requested assignment of the APS to his cousins. The Seller permitted notwithstanding the APS including a “no assignment” clause for an assignment fee of $25,000 + $1,000 in legal fees.
Buyer refused to pay and insisted he was entitled to assign, defaulted on the 5th deposit, and failed to close the transaction ultimately.
Buyer alleges FRUSTRATION of the contract due to Market Conditions or by the fee charged by the Vendor. And further denies that the Vendor mitigated its damages reasonably.
The property was listed for $729,000, which was higher than the appraised value of $700,000. It was shown 34 times over a two week period, with only one offer received, which was accepted by Paradise Homes. It was sold for $715,000.
 As a result of the defendant’s defaults, Paradise Homes incurred losses from the aborted sale equal to the difference between the original and the ultimate sale prices, plus the carrying and sale costs as follows:
1. Difference between the original and ultimate sale prices
2. Real Estate Commission
3. Staging Costs
4. Cleaning Costs
5. Gas for the period April 2018 to June 2018
6. Hydro for the period April 2018 to June 2018
7. Realty taxes
8. Appraisal Report
9. Total deficiency
After deducting the Buyer’s deposit of $45,000, the plaintiff’s damages total $82,059.50.
Summary judgement in favour of the Vendor granted.
1) ensure your contract is reviewed so you do not end up surprised when the builder uses the contract you signed to refuse an assignment or insists on egregious amounts in exchange for the consent to assign
2) changing market factors are not deemed to frustrate the agreement
Ricky Rathore., BComm., LL.B (Hons.), ABR®, SRS, FRI, Broker of Record – RE/MAX EMPIRE REALTY, BROKERAGE is a licensed Barrister and Solicitor.
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