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Tag: misrepresentation

Real Estate law: Can You Refuse to Close if Your Condominium Square Footage is Less Than You Bargained For?

In real estate law, representations are very important elements to any agreement of purchase and sale.  Typically the party selling the property will represent things such as the size of the land, the size of the dwelling, that the chattels and fixtures included in the purchase price are free and clear of encumbrances and in working order, etc.  In law, a representation is defined as a statement of past or present fact without the statement necessarily also being a promise, although the law has recognized that a representation can be both a promise and a representation.  While the topic of representations in contracts is extremely comprehensive, 756289 Ontario Limited et al. v. Milan Harminc, (1998) CarswellOnt 1577, 98 G.T.C. 6206 (“Harminc”) is one example of where a representation affected a real estate transactions with respect to the representation of square footage.Harminc is a case wherein a buyer purchased a commercial condominium property from a builder.  The buyer refused to close and the builder sued the buyer for breach of contract and sought damages.  While the defendant buyer advanced a number of arguments for his defence, the case turned on whether the builder misrepresented to the buyer the square footage of the property and if so, whether that misrepresentation was material enough to entitle the buyer to rescind the contract and refuse to close.

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Contract Law: Rescission Anyone?

When a client has an issue with a contract he/she most certainly looks to whether the issues caused any damages.  I would agree that this is an automatic first step in the conceptual process involved in creating a remedy to address a client’s needs.  But what about the case where you simply want the contract to be treated as a nullity and be restored to where you were before the contract was consummated.  In that situation you are asking either the other party to the contract or the court to rescind the contract.There are essentially two types of rescission albeit there is some overlap in respect of the grounds which would justify such rescission.  The first (i.e. common-law rescission) does not require court intervention.  This occurs where the contract on its face has a clause which makes it voidable at one of the party’s option.  So what do you do?  You carefully review the clause, and fulfil the operative steps required to “rescind” the contract.  Other than where the contract specifically provides for it, this “common law” rescission applies where an infant has entered into a contract which is not binding on him/her; fraud; and where a contract has been procured by duress.  Here, the party also has the right to seek other common law remedies.

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HOW TO PLEAD YOUR CASE

It is an action or application  that illustrates the position and/or intention of a party to the proceeding, along with its status. It is a document to start  a proceeding; or to support a step being taken by a party after the proceeding has been started; or to end a proceeding;  or to  follow the final determination of a matter.

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