COVID-19 / Coronavirus: Are Closing Dates Extended Due to Construction Sites Closing?

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Arbitration, Civil Litigation, Commercial, Condo Construction, Condo Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Contract Termination, Coronavirus, COVID-19, Force Majeure, Real Estate | Developers, Real Estate Arbitrator, Real Estate Litigation0 Comments

On April 3, 2020, the Ontario government ordered that further non-essential businesses must close by April 4, 2020 at 11:59 p.m. including closing down most construction sites in order to flatten the curve of the COVID-19 pandemic.  The number of essential businesses was reduced from 74 to 44.  The revised list of essential businesses can be found here. Construction sites related to the healthcare sector, provincial infrastructure such as transit, and projects related to the production of ventilators and other products directly related to fighting COVID-19 were permitted to remain open.  Residential construction sites were permitted to remain open where: (i) a footing permit has been granted for single family, semi-detached and townhouses; (ii) an above grade structural permit has been granted for condominiums; or (iii) the work was related to renovations and started before April 4, 2020. Given the expansive definition of essential residential construction sites, it appears that … Read More

Why purchasers of real estate should always include a finance condition

Fatima VieiraFinance Litigation, Real Estate | Developers, Real Estate Litigation0 Comments

By Fatima Vieira, B.A., M.A., LL.B. In Perkins v. Sheikhtavi 2019 ONCA 925, the sellers, Perkins listed their home for sale in March 2017 and received 13 offers. The purchaser, Sheikhtavi submitted the second highest offer, with no conditions. The offer was accepted by Perkins. The terms of the offer included a purchase price of $1,871,000 and a deposit of $80,000 to be held until the closing on July 10, 2017. After the unconditional offer was accepted, but before closing, the government of Ontario made a policy announcement which caused prices in the area to drop 20% to 30%. On the day of the closing, the purchaser advised she could not close because she was unable to sell her own home and could not obtain sufficient mortgage financing. Perkins put the property back on the market and sold it for $1,251,888. This was $619,112 less than Sheikhtavi agreed to pay. … Read More

Nick Poon Comments on Real Estate Wire Fraud for Yahoo!

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Broker and Agent Claims, Civil Litigation, Cyber Fraud, Fraud, Fraud Recovery, Fraudulent Schemes, Gilbertson Davis LLP News, Injunction & Specific Performance, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation0 Comments

Nick Poon was recently asked to comment on real estate wire fraud for Yahoo News Canada. Read the Yahoo News Canada article here: ‘The prospects of recovering the money are near zero’: The scam homebuyers need to be aware of. If you have a fraud claim or a real estate dispute, please contact us for an initial consultation.

Part Two – Timing is Everything in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Appeals, Business Litigation, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Litigation, Contract Disputes, Contract Termination, Injunction & Specific Performance, Real Estate | Developers, Real Estate Litigation, Specific Performance, Summary Judgment0 Comments

I had written a previous blog on the “time is of the essence” clause in real estate agreements where it was discussed that the strict adherence to any agreed upon time limits was generally the case. A recent Ontario Court of Appeal case, Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc., serves as a reminder that the “time is of the essence” clause is not absolute and unfettered, and there are preconditions that must be satisfied for a party to rely upon and insist on time being of the essence. The facts are not overly complicated in this case.  The respondent was a condominium developer in the process of acquiring properties for a proposed project in downtown Toronto.  The developer entered into an Agreement of Purchase and Sale (“APS”) with the vendor to acquire the subject property.  Although the APS required the vendor to provide estoppel certificates five days prior … Read More

Prompt Payment Regime Takes Effect For Construction Projects

Sabrina Saltmarsh, B.A. (Hons), J.D.Arbitration, Condo Construction, Construction Equipment & Machinery, Construction Litigation, Cottage Litigation, Heavy Machinery Disputes, Mining, Infrastructure and Projects, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

A major shift has been underway in Ontario since the legislature ushered in reforms under Bill 142, the Construction Lien Amendment Act, 2017, S.O. 2017, c. 24., perhaps none of which is more significant than the prompt payment regime which took effect on October 1, 2019. Changes To Lien Period: Effective July 1, 2018 Changes to the previous legislation (The Construction Lien Act) have come into effect in phases, with the first set of changes having taken effect in July of last year. We are now in the midst of transition rules which apply depending on the commencement date of a construction project to determine the applicable lien period which changed from 45 days to 60 days for prime construction contracts entered into after July 1, 2018. There were several additional notable changes which took effect as of July 1, 2018, including the extension of the period to perfect a … Read More

Ontario Cottage Litigation Lawyers: Able to Assist in Disputes Involving Cottage Owners, Purchasers, or Sellers

Gilbertson Davis LLPCottage Litigation, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

From our office in Toronto, Ontario, we are able to provide efficient and result-oriented solutions with respect to the unique issues arising from cottage and recreational property disputes. Failures to Close Failures to complete an agreement of purchase and sale may be due to the Vendor or the Purchaser.  Failures of the Purchaser are often attributable to the Purchaser’s inability to obtain financing that was anticipated from a mortgage or another property sale.  In some instances, the Vendor may retain the deposit and claim damages for losses sustained from the failure to close. Failures to close may also be due to the Vendor.  Frequently, the Vendor’s failure to close is due to the Vendor’s inability to provide clean title to the property or to perform the necessary repairs prior to closing.  In some instances, a Purchaser will seek to recover damages for any resultant loss, while in other cases the … Read More

Can a Pre-Incorporation Contract Prevent the Forfeiture of a Deposit on the Failed Closing of a Property?

Gilbertson Davis LLPCommercial Contracts, Real Estate | Developers, Real Estate Litigation0 Comments

In Benedetto v. 2453912 Ontario Inc., the Ontario Court of Appeal considered whether a pre-incorporation contract could prevent the forfeiture of a deposit provided pursuant to an agreement of purchase of sale of real property. In this case, the purchaser signed an agreement for purchase and sale of real property, indicating that he was signing as a buyer “in trust for a company to be incorporated without any personal liabilities”. The purchaser then provided $100,000.00 as the deposit to secure the purchase of the property. The purchaser subsequently advised that he would not be closing on the transaction and sought the return of the deposit. The vendor refused and commenced civil proceedings resulting in a summary judgment motion, which was held in favour of the vendor. The Ontario Court of Appeal upheld the findings of the lower court and indicated that: A forfeited deposit does not constitute damages for breach … Read More

Real Estate Litigation: Failure to Give Extension of Closing Date is not Bad Faith

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Certificate of Pending Litigation, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Contract Termination, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation, Specific Performance, Summary Judgment0 Comments

The recent summary judgment motion decision in Time Development Group Inc. v. Bitton, 2018 ONSC 4384, involves a situation that arises quite often in failed closings of real estate transactions.  One of the main causes for an aborted real estate transaction is the failure of the purchaser to obtain the required financing to close on the transaction, possibly influenced by the Ontario Fair Housing Plan and the new mortgage lending rules. In this case,  the plaintiff entered into an agreement to purchase three adjoining properties for a residential home redevelopment project.  There were a series of amendments to the agreement with the terms as follows: (a) purchase price of $10.55 million; (b) deposit of $500,000; (c) two vendor take back mortgages; and (d) closing date of July 31, 2017.  The plaintiff had secured a commitment letter to finance the transaction, however, six days before the closing date, the plaintiff was dismayed to find out that their financing had been withdrawn because the market conditions had changed.  … Read More

Entire Agreement Clause Upheld in Manorgate Estates Inc. v. Kirkor Architects and Planners

Janice Perri, B.A. (Summa Cum Laude)Appeals, Appellate Advocacy, Business Torts | Economic Torts, Civil Litigation, Commercial, Commercial and Contract Litigation, Commercial Contracts, Commercial Law, Commercial Litigation, Construction | Builders, Construction Litigation, Contract Disputes, Misrepresentation, Negligence, Real Estate | Developers, Real Estate Litigation0 Comments

Entire Agreement Clauses are meant to prevent negotiations that occurred prior to the contract being formed from influencing the Court’s interpretation of the terms set out in the final contract. In other words, past discussions are to have no bearing on the understanding of the contractual terms. In theory, a fully integrated agreement of this kind supplants any earlier oral or written agreements. There is competing jurisprudence in which Entire Agreement Clauses have been both effective and ineffective. However, Manograte Estates Inc. v. Kirkor Architects and Planners is a recent Ontario Court of Appeal decision where an Entire Agreement Clause was effective. In Manograte Estates Inc. v. Kirkor Architects and Planners, the Ontario Court of Appeal upheld the Motion Judge’s decision that the Entire Agreement Clause in the relevant agreement, regarding architectural consulting for a construction project, operated as a complete defence to the appellants’ claim of alleged negligent misrepresentation. The Entire Agreement Clause … Read More

Bhasin v. Hrynew and the Duty of Good Faith in Real Estate Agreements of Purchase and Sale

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Certificate of Pending Litigation, Commercial, Real Estate | Developers, Real Estate Agent and Broker, Real Estate Litigation0 Comments

The Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71,  recognized the duty of good faith in contract and the obligations of the parties to act honestly in the performance of their contractual obligations.  The duty of good faith applies to any contract, including real estate contracts such as Buyer Representation Agreements, Listing Agreements and Agreements of Purchase and Sale. As discussed in a previous blog post, Agreements of Purchase and Sale generally include a “time is of the essence” clause which means that time limits will be strictly enforced by the courts.  Problems often arise when vendors refuse to agree to seemingly minor indulgences requested by purchasers such as an extension of the closing date or an extension of the deadline to provide the deposit. Two recent decisions in the Ontario Superior Court of Justice have addressed the duty of good faith, as expressed in Bhasin v. Hrynew, in the performance of Agreements of Purchase and Sale.  Unfortunately for purchasers, it appears that … Read More