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Buying property in Canada - mortgage chains

Buying property in Canada - mortgage chains

Old Feb 16th 2021, 1:09 am
  #31  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by Siouxie View Post
I'm confused - don't you live in Australia? Have you been a Real Estate Agent in Canada? Wondering where you are obtaining your information from..
Handy hint - HGerchikov is a Real Estate Agent in Ontario of many years standing (and a damn good one at that!)
Handy hint, I previously resided in Canada for many decades, and my esteemed father was a specialist real estate lawyer for several years at a top national firm before being elevated to a federal judgeship. IANAL, and all that, but I did learn a few things at the family dinner table.

It appears from HGerchikov's latest responses that the apparent difference between us is mostly one of semantics and perspective, in terms of a "seller's condition". S/he is taking it from a pragmatic RE agent's perspective, whereas I am putting forth a more fundamental legal perspective.

Last edited by abner; Feb 16th 2021 at 2:57 am.
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Old Feb 16th 2021, 2:30 am
  #32  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by HGerchikov View Post
IThe difference between a clause requiring Seller to be released from a previous offer and one for the Buyer to obtain financing is that the Buyer can decide not to fulfill that condition and can waive it as it at his discretion - a Seller has no control over whether he is released from the previous offer - that is at the discretion of the original buyer.
In each case, the party in whose favour the condition is imposed, can waive that condition if they so choose, but are liable for the consequences.


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Old Feb 16th 2021, 3:20 am
  #33  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by abner View Post
Handy hint, I previously resided in Canada for many decades, and my esteemed father was a specialist real estate lawyer for several years at a top national firm before being elevated to a federal judgeship. IANAL, and all that, but I did learn a few things at the family dinner table.

It appears from HGerchikov's latest responses that the apparent difference between us is mostly one of semantics and perspective, in terms of a "seller's condition". S/he is taking it from a pragmatic RE agent's perspective, whereas I am putting forth a more fundamental legal perspective.
My last comment was actually just to clear up that when I said a true sellers condition I meant merely a condition where the Seller had control over waiving it, rather than a True Condition Precedent where neither party could waive.

Originally Posted by abner View Post
In each case, the party in whose favour the condition is imposed, can waive that condition if they so choose, but are liable for the consequences.
There is no language in the standard condition for a Seller to be released from a previous deal that allows the Seller to waive it - only fulfill. Obviously he cannot waive it without fulfilling because then he would have entered into two legally binding contracts to sell one property. I think the 'Fundamental Legal Perspective ' of that situation is pretty clear.
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Old Feb 16th 2021, 4:38 am
  #34  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by abner View Post

... the apparent difference between us is mostly one of semantics and perspective, in terms of a "seller's condition". S/he is taking it from a pragmatic RE agent's perspective, whereas I am putting forth a more fundamental legal perspective.
Nope. Your original point was that an offer that has been accepted is not binding on either party until some point in the future. That’s not legal perspective. That’s wrong perspective.

Even with conditions its still binding, subject to conditions. You can’t just change your mind. You are committed as long as the bank gives you the mortgage (or whatever the condition states). Unless you want to break the law. You can break the law and face the consequences but that’s not a sound “legal perspective”.

Particularly dodgy when telling this to folks arriving from the land of gazumping and gazundering.

Last edited by Mordko; Feb 16th 2021 at 4:40 am.
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Old Feb 16th 2021, 4:49 am
  #35  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by Mordko View Post
Nope. Your original point was that an offer that has been accepted is not binding on either party until some point in the future.
Try to keep up. I already admitted the error in drafting that earlier response.
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Old Feb 16th 2021, 6:01 am
  #36  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by HGerchikov View Post
There is no language in the standard condition for a Seller to be released from a previous deal that allows the Seller to waive it - only fulfill. Obviously he cannot waive it without fulfilling because then he would have entered into two legally binding contracts to sell one property. I think the 'Fundamental Legal Perspective ' of that situation is pretty clear.
How then is a Seller to deal with an anticipatory breach of contract by some previous 'buyer', if the matter is still in dispute? In a declining market, the Seller will have an obligation to take reasonable steps to reduce losses from the anticipatory breach, and may, for other reasons, need to realise the value of the property through sale to some third party, even with the anticipatory breach matter outstanding.
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Old Feb 16th 2021, 12:42 pm
  #37  
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Default Re: Buying property in Canada - mortgage chains

Originally Posted by abner View Post
How then is a Seller to deal with an anticipatory breach of contract by some previous 'buyer', if the matter is still in dispute? In a declining market, the Seller will have an obligation to take reasonable steps to reduce losses from the anticipatory breach, and may, for other reasons, need to realise the value of the property through sale to some third party, even with the anticipatory breach matter outstanding.
That is quite a different situation to the one we were talking about, however the same principle applies. Yes an injured party in a breach is required to try to mitigate the damages. However you still cannot accept an offer from a second party until the first offer is either dead in the water or there is a condition acknowledging it needs to die in the second offer. Without one of these the Seller may well find himself being sued for the breach.
I would stop now if I was you, all you are managing to achieve is a perfect demonstration of the truth of the saying 'A little knowledge is a dangerous thing'.
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