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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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Discussion Starter #85
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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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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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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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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Discussion Starter #91
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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Discussion Starter #92
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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Discussion Starter #93
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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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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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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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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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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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.
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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