Payment of the deposit is a “key” component in most agreements. If it’s not paid at all, that’s a breach. If it’s not paid “in time”, that’s also a breach.
The matter of an uncertified cheque recently was considered by the Ontario Court of Appeal in Preiano v. Cirillo on 19 July 2017.
In this case, the Seller thought better of selling and was looking for an “out”. Six days before closing the Seller’s lawyer said that the deal was “off” because the deposit had not been paid. So, they didn’t close.
The issue was really a case of two deposits. The first was an uncertified cheque and the second was a bank draft.
Here’s part of what the Court of Appeal said:
“The parties reached agreement at 12:30 p.m. on August 21, 2013. The APS required the appellants to pay the deposit of $25,000 CAD within 24 hours of the acceptance, or by 12:30 p.m. on August 22, 2013. The APS stated that “time shall be of the essence”. They delivered $25,000 in certified funds in the form of a bank draft to the deposit holder, Royal LePage, by 1:53 p.m. on August 23, 2013. Royal LePage provided the appellants with a receipt for their deposit.”
It is also important to note that the Court of Appeal also said:
“On August 20, 2013, at the time they signed the draft APS by which they offered to buy the respondents’ house, the appellants delivered a $25,000 personal cheque as the deposit to Frank Finelli of Royal LePage, the respondents’ real estate agent. Mr. Finelli told the appellants that the personal cheque would have to be replaced with $25,000 in certified funds if the respondents accepted the APS. On behalf of Royal LePage, Mr. Finelli retained the appellants’ personal cheque although he did not attempt to deposit it.”
Timeline:
20 August 2013 – Offer submitted, with uncertified deposit cheque
21 August 2013- Agreement struck
22 August 2013- Deposit due
23 August 2013 – Bank Draft delivered
14 November 2013 – Letter of Termination from Seller’s lawyer
20 November 2014 – scheduled closing date
Undetermined date – Buyer commences lawsuit
Undetermined date – Buyer brings Motion pursuant to lawsuit
10 November 2016 – Superior Court of Justice, Order (upon Motion)
19 July 2017 – Ontario Court of Appeal Decision
Lawsuit
The Buyer was aggrieved and brought a lawsuit against the Seller. After all, the deal continued for 3 months before the Seller wanted out.
The lawsuit claims “specific performance” that is, the transfer of the property to the buyer in accordance with the terms of the agreement. Have a look at the “timeline” here. The deal was struck in August of 2013, four full years have now passed. If the Court sides with the Buyer, that’s a very good deal for the Buyer.
From the Seller’s perspective, it took a little “moxey” to try this termination route in the first place. They didn’t get any money on closing. Four years goes by and they still don’t have any money. They still have all the cost and expense associated with having and maintaining the house.
The Court of Appeal basically said that the uncertified cheque paid by the Buyer with the Offer was a “good deposit” on this deal. There was no proof available that if it had been presented to the Bank it would have been dishonoured.
In addition, the Seller is required to pay the sum of $15,000.00 to the Buyer for costs of the application and appeal.
Brian Madigan LL.B., Broker