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LEGAL PITFALLS TO AVOID WHEN BUYING REAL ESTATE

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Specific Performance
If the vendor or purchaser refuses to go through with a purchase and sale agreement when there are no unfulfilled conditions attached to the agreement, the other party is entitled to go to court and request the court to order that the breaching party specifically perform the terms of the agreement, eg, complete the transaction. The party who succeeds in obtaining the court order would be entitled to ask for the costs of the application from the court. Costs are based on a tariff schedule established by provincial legislation. Generally, court costs awarded represent about 25% to 40% of the actual legal costs incurred; therefore those who “win” at court ultimately “lose” financially in terms of total cost recovery of legal costs expended.

Damages
If one party refuses to complete the agreement, instead of suing for specific performance of the terms of the agreement, the other party can sue for damages. Damages mean the financial losses that have been incurred because the other party failed to complete the bargain. There is a basic legal maxim that says “to get financial damages (compensation), you have to prove you have suffered financial damages.” For example, if a vendor refused to complete the deal because he thought he could make $50,000 more on the sale of the house (if the price had gone up considerably), and if in fact it could be shown that he did sell it for $50,000 more after refusing to go through with your signed commitment, then you could claim $50,000 damages plus court costs. Your loss could be quantified, assuming that there were no other reasons that could explain the differential in price. Alternatively, if the purchaser fails to complete and the vendor can show that he was relying on those funds and therefore the purchase he had planned failed to occur, and so on down the line with various back-to-back purchases and sales that were all relying on the first, there could be considerable potential damages for which the purchaser may possibly be liable. These are called “consequential” and “foreseeable” damages. This is a complex area of law and skilled legal advice is critical.

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