So you've found your dream neighbourhood. Close to parks and
schools. Near your children's friends. Safe. Close
to work. You find the perfect house for you and your family in
your dream neighbourhood and it is for sale. You make an offer and
it's accepted. It seems perfect and your dream is coming
Before closing, the dream turns to a nightmare. The vendor
says he won't sell you the house. You really want that
house. Not any other house. That house.
Unfortunately, you may not be able to force the vendor to sell
you that specific house. Since a Supreme Court of
Canada's decision in Southcott Estates Inc. v. Toronto
Catholic District School Board (2012 SCC 51), it has been
clear in Canada that a purchaser cannot force a sale with respect
to developable or raw land. In that case, the court decided
that the purchaser, a land developer, once it learned the deal
would not close, had an obligation to go out and look for other
land in order to mitigate its losses. The court found that the
purpose of the purchase was to develop and build homes. Since there
is a lot of land on which the developer could do just that and
nothing unique about the lands in question, the court refused to
require that those specific lands be sold despite the earlier
agreement to do so. The remedy for the breach of the contract
was money, not a sale or transfer of the specific lands. It may not
be well known, but the same principle applies in residential real
estate cases as well.
A deal is a deal less often than people might expect. In
residential real estate, if the vendor refuses to sell to you, you
can ask the court for specific performance – the sale or
transfer of the specific house – but it is rarely
awarded. The more common remedy is financial compensation for
the difference in the value between the home you tried to buy and a
comparable home that is still on the market and any added expenses
for the purchase of the alternative home. The amount of money
awarded may be quite limited.
To be successful in forcing the vendor to sell or transfer the
specific home to you, you may need to prove to the court that the
house or property is so unique that there is no other comparable
property. This is exceedingly difficult in the residential real
estate industry. There are so many homes and so many neighbourhoods
that there are many versions of the same home in different
Recently, Lerners LLP was successful in advancing a specific
performance argument by proving that the specific property was
uniquely located, zoned and situated in an area where there were no
comparable properties. A judge ordered the sale to proceed
and development of the lands went ahead. It can be more
difficult than you expect to enforce a deal. If you find
yourself in this situation, you should consult a lawyer and find
out if your dream home is truly one of a kind or whether you will
be forced to move on.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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