A locker was improperly described in a condominium complex. The Listing was wrong. The Agreement of Purchase and Sale was wrong. The Buyer’s agent (the purchaser’s own mother) didn’t check or verify it.
The reference was made to an “owned locker”. In fact, it may be exclusive use or assigned, but that is not clear at this point.
What, if anything, can the Buyer do?
This issue poses many different problems.
The Seller is liable in contract to the Buyer. The Buyer’s representative is also likely liable in contract to her own Buyer. The Listing Agent is liable to the Buyer for the false representation in tort (there is no contract). The Buyer’s representative is similarly liable in tort for failing to discover this false and incorrect statement. Should the Buyer choose not to sue her own mother as the Buyer’s representative, then the other parties can add her to the lawsuit anyways.
There is no right under the Agreement of Purchase and Sale to holdback funds. The only realistic option is to sue after the closing has taken place.
What is the value of the “owned locker” compared to the “exclusive use locker” or “assigned locker” or “no locker at all” or whatever it was which was actually received? That’s the value of the claim.
For Small Claims Court purposes, the difference will have to be at least $10,000.00 to justify using a lawyer or paralegal. It would be very difficult to do this sort of case without legal assistance of some kind. If the difference is $15,000 or more, then it’s very worthwhile. If it’s less, then the entire undertaking becomes questionable. And, this is why many of these types of claims never go anywhere.
Brian Madigan LL.B., Broker