Buyer’s Anticipated Default

Question:

Listing sells with a bully offer for a reasonable “month ago” market price (much higher than now), firm and 5% deposit.

The Buyers now don’t think they can sell for what they “need” in order to fund the purchase. Their Agent suggests Sellers relist now to try and sell it to someone else.

The Sellers purchased their new home after selling so they knew their budget. It is also firm.

The Sellers’ home is a great property but as we know the market is different now (lower) than a month ago.

What would you do as the Sellers’ Agent?

Answer:

This has actually turned into a rather common occurrence due to the changes in the market.

Essentially, this is an “anticipatory breach of contract”. Effectively, that means we can consider that the breach of contract has taken place now, rather than later. So, the obligation to mitigate is now rather than later.

That means re-list and sell to a new Buyer at today’s prices. Waiting can be problematic. You don’t have to prove damages to keep the deposit but you can’t get any more than the deposit without proof. Failure to recognize the Buyer’s anticipatory breach places the Seller at some risk later.

Deal with matters now, rather than wait for the actual, breach to have taken place.

Anticipatory breach is from the3 Buyer’s side. Contact the Seller’s lawyer and have them “document” the communication of the Buyer’s anticipatory breach, so that the property may be re-listed and sold as soon as possible. Otherwise later on, the Buyer could say, no we were still going to close we were “just thinking out loud”, “we were concerned”, and “we were simply hoping for some concession, a reduction in price, an VTB or an extension to the closing date”.

Let’s avoid al that and have the anticipatory breach properly and unmistakenly communicated from the Buyer’s side.

Comment

This was a 2017 situation, but of course, it can occur anytime!

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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