The facts of the case are relatively straight forward.
The vendor signed a listing agreement with Ariston Realty Corp.
("Ariston"). The listing agreement contained a holdover
clause which provided that the vendor would pay Ariston a
commission of 5% of the sale price in the event that the property
was sold within six months after the expiry of the listing
agreement to any party to whom Ariston introduced the property to
during the term of the listing agreement. Importantly, the holdover
clause also went on to state:
"provided you have notified
me in writing prior to the expiry of this agreement of the name of
such party you or your representatives or cooperating brokers have
introduced to the property."
As you can guess, the property was sold within 6 months after
the expiration of the listing agreement to a party whom the trial
judge "found as a fact" was introduced to the property by
Ariston. The trial judge ordered the vendor to pay Ariston over
$120,000 in commission as a result.
The vendor appealed on a number of grounds, including that
Ariston failed to provide the written notification as required in
the holdover clause. The Court of Appeal agreed with this point,
noting that the law requires "strict compliance" with the
written notification provision and that "having failed to
fulfill this condition precedent, Ariston has no contractual
entitlement to commission."
It would seem then that by sending a simple email or letter
Ariston could have satisfied its obligation and would have been
entitled to its commission.
That being said, all was not lost for Ariston. In another
interesting turn of events, the Court of Appeal awarded Ariston
$20,000, not with respect to the commission, but on the basis of
quantum meruit with respect to services it provided to the
vendor after the expiration of the listing agreement.
Originally published on Slaw
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