The buyer was under a representation contract with an
agent. During that time the buyer and his wife found a house
that they liked through an open house on the same street that they
currently lived on.
The buyer emailed his agent to tell him that they had found a
house that they had liked and that although the list price was
$439,900 they were able to get it for only $430,000. The buyer went
on to state that the only way he was able to avoid getting into a
bidding war was to give the seller's agent the right to sell
the buyer's house (and thereby earn a commission on that sale
The buyer said that he felt very bad but that his wife wanted to
do the deal right away and that he had no choice.
The buyer refused to pay his agent any commission despite being
under a representation agreement that obligated him to do so. At
trial the buyer claimed that he:
thought he was signing with ReMax and not the plaintiff
did not realize the terms of the agreement (although he
admitted to signing it and that he had an opportunity to review
thought the term of the representation agreement had
The trial judge ruled against the buyer, finding that he knew
and understood the terms of the representation agreement and that
he knowingly breached the agreement.
On appeal to the Divisional Court the buyer tried something new.
He argued that only half of the commission ought to be payable
because both he and his wife signed the agreement of purchase and
sale for the new house and since his wife had not signed a
representation agreement then her half of the commission was not
payable to the buyer's agent.
The Divisional Court Judge dismissed the appeal noting that this
argument was never raised at trial, and because perhaps more
importantly there was no evidence before the court that the wife
had signed the agreement.
Subject to the buyer trying his hand at the Court of Appeal, the
agent is entitled to his full commission.
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