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Discussion Starter #41
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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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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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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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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Discussion Starter #50
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.
I got the same message too.
 

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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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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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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.

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.
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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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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Discussion Starter #56
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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Discussion Starter #57
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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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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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.
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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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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