June 8th - 2004

Merv’s Column No deposit, no deal?

A buyer submitted an offer which provided for a deposit of $10,000 to be made.

A buyer submitted an offer which provided for a deposit of $10,000 to be made. The offer was conditional on an inspection. The buyer then told her
agent to waive the condition and make some other changes to the offer. An Amendment Agreement was prepared and signed and the sellers' REALTOR was advised.  It also mentioned that the buyer was to make the deposit as required by the original offer. The sellers accepted the amendment that same day. The buyer never did pay the deposit. In fact she said that she told her agent not to present the amendment. The judge did not believe her.

In any event the amendment could have been accepted within a reasonable time, and was in fact accepted on the same day as it was presented. The buyer then said that, since she had not made the deposit, the deal was null and void. The judge and appeal court decided that there was a deal.

Maeiero v. Czyzyca 2003 ONSC DC 01BN-11704

 

MERV'S COMMENTS
The buyer also sued her REALTOR for her losses on the basis that they had not acted as she had instructed. The judge chose to believe the evidence of the REALTOR rather than the buyer. She lost that issue as well. It is interesting to note that the 2004 OREA Amendment Agreement has specific provisions for a time for acceptance.

As to the "no deposit equals no deal" argument, the appeal court properly said: "The defendant points out that the defendant's failure to pay the deposit as required under both the original agreement and the amendment to agreement should make the agreements null and void. As the contract was originally and subsequently with the amendment, under seal, albeit the usual printed seals, no further consideration would be required. In any case, it lies not with the appellant who defaulted under the agreement to now look for some advantage for that default. To conclude otherwise would suggest that the defendant was not acting with good faith in the matter."

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