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Discussion Starter #22
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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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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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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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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Discussion Starter #26
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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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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Discussion Starter #28
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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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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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.”
[/I]
After that, we have tried to get more but that was their final offer.
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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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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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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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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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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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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Discussion Starter #36
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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Discussion Starter #37
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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Discussion Starter #38
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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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.


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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Discussion Starter #40
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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