May 3, 2015
by Merv Burgard, Q.C
A closing date in an APS for a $2.9 million property was set for a Saturday -- but real estate registrations cannot occur on a Saturday in Ontario.
Neither party was ready, willing or able to close on that Saturday or on the following Monday.
The buyers then repudiated the contract; the sellers restored the time of the essence by setting a new closing date and tendering properly on that date. The sellers resold for $3.25 million.
The courts held that the buyers' $75,000 deposit could be retained by the sellers.
Varajao v Azish 2015 ONCA 218
Even though the sellers managed in the end to sell the property for a higher amount and did not suffer any damages, it was reasonable (and, as the judge said, not unconscionable) for them to keep the forfeited deposit. It is a proportionate amount of a deposit under the circumstances of these facts, based on the purchase price.
A Saturday closing date??!! As every lawyer and REALTOR® in Ontario is taught, a real estate registration only occurs when the registry system is open. That cannot be a Saturday, Sunday or statutory holiday.
Mervin Burgard, Q.C.
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