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Mark’s article this week deals with an instance that it is well to be aware although it happens rarely. I have made some minor edits to protect the privacy of the buyer.
By Mark Weisleder – from Moneyville magazine
Putting your home up for sale can be a very emotional decision, because the house is associated with the memories of all the things that happened within its walls. But beware: once you do decide to sell the house, put up a For Sale sign and accept an offer, you may not be able to change your mind later.
Here’s a case that illustrates the point. Some time ago, Mr. M. and his wife started looking for a house in a prestigious Toronto neighbourhood. They wanted a home that had six important features.
The home had to back onto a ravine and have a lot that was 100 feet wide. It had to be in move-in condition, with five bedrooms as well as have a nanny suite on a separate level. The asking price had to be less than $3.5 million and it had to be near St. Andrew’s Junior High School.
The couple found such a house. They made an offer of $3.325 million on the day they first saw it — which was accepted, and the sale was to close two months later.
A few weeks later, the sellers advised Mr. and Mrs. M. that for personal reasons, specifically the family history associated with the home, they had had a change of heart and decided not to close the deal.
When sellers change their minds about selling property, buyers have a choice. They can try and find a similar house and if they end up spending more money they can usually get the difference from the sellers. Or, they can ask a judge to require the sellers to complete the contract that they originally signed. This is called specific performance. To win the latter kind of case, you need to be able to demonstrate that the house you bought was in many ways unique, and that no suitable replacement can be found.
The M’s chose the second option and decided to sue for specific performance.
The sellers argued that the house was not unique, and that the M’s could find a similar property in the area that suited their needs. They noted that the property next door was for sale for $3.7 million and met the buyers’ criteria. The sellers also would probably have paid for any costs that the buyers incurred had they bought a similar property.
The advertisement for the home they had contracted to buy described the property this way: “Exquisite Residence backing onto a park. Unique architectural design and beautifully updated. The stunning two-storey floor-to-ceiling stone walls at the entrance is the first hint that you are entering into a ‘one of a kind’ prestigious home.”
The buying couple argued in court that the home reminded them of their home in Tehran. They said the house next door was of a different style, both outside and inside; it was also on a corner lot with a smaller backyard, and the children’s bedrooms were in a separate wing of the house.
Ontario Superior Court Justice J. Backhouse noted that the buyers had made an offer on the day they first viewed the house. He found that on a subjective and objective basis the house was unique, and ordered the sale to go ahead.
In all cases, whenever your deal has been stopped from closing, get legal advice in order to understand the alternatives available to you and, importantly, how much it may cost you to sue.
And remember to be very careful in making a decision to sell your home. You may not be able to change your mind later.
Mark Weisleder is a Toronto real estate lawyer. Contact him at firstname.lastname@example.org