Walking away from contract can lead to a costly lawsuit
Derrick Penner
Sun
When British Columbia‘s real estate cycle was on the upswing, many condominium buyers reaped the rewards of buying so-called pre-sale condominiums which, in many cases, were worth more on closing than the agreed purchase price.
Now the cycle is on the downside and a growing number of buyers are finding themselves compelled to honour contracts they signed to complete purchases of units that have fallen in value. They have few options to get out of deals even if they don’t qualify for a higher mortgage.
Pre-sales can be “a win-win transaction” for both buyers and sellers, in the words of an advice pamphlet produced and distributed by the Urban Development Institute and the B.C. Real Estate Association.
They allow buyers to pick homes they want to live in, and give developers certainty about their ability to sell and finance projects they are taking the risk to build.
If buyers try to walk away after signing a deal, they can be sued by developers, and risk losing not only the deposits they paid to secure units, but the difference between the current, lower market price, and the price they agreed to pay the developer in their contracts.
“What the biggest risk [in pre-sales] is,” said Kenneth Pazder, a Vancouver real estate lawyer, “[that] what you essentially are doing is, you’re playing a futures market in real estate.”
Buyers put down a deposit, usually about 15 per cent, and trust that the price they agree to pay reflects the home’s value on completion of its construction when they have to take ownership.
“How sophisticated is the average [buyer] to do that?” Pazder asked.
At least six different developers are suing some 74 different buyers for not completing the purchase of homes they’d signed contracts to buy. Pazder is in discussions with a number of buyers who want to counter-sue developers.
Developers are required to file disclosure statements that outline their projects’ details and pass them on to prospective buyers.
Pazder’s advice for buyers considering pre-sale purchases is to seek legal advice to understand the contracts they are signing and the disclosure statements they are agreeing to accept.
The B.C. Real Estate Development and Marketing Act (REDMA) allows developers to sell real estate before it is built, and sets out the conditions developers have to meet in doing so.
One of the conditions is that buyers have a seven-day right-of-recision period — the ability to cancel the contract — if they change their minds. Pazder advises clients to use that period to get a legal opinion on the contract, and to bail out if that opinion is negative.
It will cost a buyer $300 or $400 for the service, Pazder said, but he reckons it is worth the fee to understand the potential risks a buyer is assuming in signing the contract.
“Sometimes people feel that they know the price, [the purchase] is going to close in two years, and that’s good enough,” Pazder said. “Then the problem is when, like now, things go sideways.”
Pazder said one of the most common questions he gets these days is how buyers can get out of their contracts.
Often, Pazder said, the buyers’ problem is that they can no longer secure a mortgage to complete the purchase at the price agreed to in the contract. Their bank or lender can lend them funds based only on their unit’s current, and lower, market price.
Pazder said contracts often contain language that allow a developer to seek damages greater than the deposit, if the amount the developer has to cut the price of a unit to sell it in the current market exceeds the value of that deposit when a buyer walks away from the contract.
Pazder added that in the current market, pre-sale buyers will want to try to limit that clause: “You want [the clause] to say, ‘If I don’t complete the purchase, this deposit is forfeited as liquidated damages as the sole remedy of the developer.’ “
He added that buyers will also want to look at firmer language around the completion dates for construction of the units and clauses allowing the developer to make changes in finishings or unit layouts that also give them an out.
The Urban Development Institute and B.C. Real Estate Association pamphlet includes a checklist of items that are required to be in a disclosure statement.
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