There are actually two basic reasons for a deposit in a real estate transaction:
1) to constitute security for payment, and
2) to establish a pre-estimate of the damages in the event of default.
There are other commonly held beliefs like the deposit is a “sign of good faith”. It shows “sincerity” on the part of the purchaser. It is the “consideration” that makes the deal.
However, none of that really makes any sense. Real estate contracts are in writing and usually executed under seal. That means that they are binding with or without consideration. And, when you examine the contract, they provide for the exchange of the title to the land for money. That is a “promise in exchange for a promise”, which naturally constitutes consideration. So, there is no need for a deposit to seal the deal, or make a contract enforceable.
In fact, a deposit is not necessary at all. But, from the seller’s perspective it’s always wise to have a real, or substantial deposit.
The difficulty seems to arise in practice. In Toronto and the GTA (Greater Toronto Area), a deposit in the range of about 5% of the purchase price is quite common and expected with most residential transactions.
For commercial transactions, the practice varies somewhat because frequently, the deposit will made to be “refundable” and will essentially amount to an option to purchase. To be addressed appropriately, it should have been referred to as “part payment of the purchase price”.
In more rural settings, and smaller areas, the local practice appears to be the use of a nominal deposit, that is, $500.00 to $1,000.00 regardless of the size of the transaction. That is often the custom and local practice. Buyers don’t offer any more, and sellers are counselled to accept such a deposit as “regular”.
In my opinion, such a local practice is unacceptable!
So, we are really back to the two primary reasons for the deposit in the first place.
There needs to be some money set in place with a third party to ensure that if the transaction is not completed due to the purchaser’s default, then these funds will be available to the seller.
The funds are placed with a third party stakeholder, and cannot be released until there is mutual consent or a Court Order.
A nominal deposit does not force the buyer to deal with his breach, only a substantial deposit will. Courts look to see whether the deposit provided the buyer withy “motivation” to complete the purchase.
Pre-estimate of Damages
In the case of a claim where the damages can vary from one transaction to the next, the parties are permitted to establish by contract an amount that would estimate the vendor’s expected minimum loss.
This has been handled through the use of the deposit for hundreds of years. The deposit is the pre-selected, pre-negotiated and agreed upon estimate of the minimum amount of the vendor’s damages. No actual proof of damages is required. The amount of the deposit is accepted in contract law to be the genuine pre-estimate. The major case in common law jurisdictions was Howe v. Smith in 1884 in the House of Lords in England, and even in their decision reference was made to “Roman Law”.
Actual Damages Sustained
In addition to keeping the deposit as a pre-estimate of the amount of damages, the vendor is entitled to claim additional damages provided they can be proven.
Let’s consider a situation in which Bob sells his $300,000.00 house to Bill, expecting to be in a position to close on his $500,000.00 new house, the same day.
If the deal falls through on the closing day, due to Bill’s fault, what has Bob lost in terms of money?
Let’s estimate the following:
1) real estate commission on the sale,
2) legal expenses on the sale,
3) mortgage prepayment expenses on the sale,
4) moving expenses,
5) loss of deposit on the purchase,
6) possible real estate commission on the purchase,
7) legal fees on the purchase,
8) mortgage arranging fees on purchase,
9) temporary accommodation expenses,
10)carrying charges, utilities, taxes and mortgage payments on sale until disposition of this property,
11)liability for carrying charges, utilities, taxes and mortgage payments on new property until it can be re-sold by the owner
12)moving expenses associated with second move,
13)interim storage expenses,
14)other expenses attributable to the failure of the sale and the subsequent purchase.
As you will appreciate, quite easily the actual financial losses suffered by Bob will be quite steep, amounting to $25,000.00 or more, in most cases.
A $10,000.00 deposit really wouldn’t go that far.
A 5% of $300,000.00 or $15,000.00 deposit would be helpful, but is still short of the mark.
When it comes to a $500.00 or $1,000.00 deposit; it really isn’t worth having. Marginally, such a deposit has no value in these circumstances.
Sellers must be made aware of the significance of the deposit and the role that it plays in real estate transactions. Agents must seek the “informed consent” of their sellers if they are to structure a transaction with a low, modest or meaningless deposit.
If the seller agrees to a low deposit based upon “local custom”, then this should be specifically noted by the agent in the file.
In my view, there should be one standard practice for all of Ontario, and such local customs should be discontinued.
As an alternative, a provision in the agreement requiring a second deposit or increased deposit on the closing date would help to solve #2, but not #1. So, in areas where there is such a custom, at the very least the second deposit clause should be included.
Brian Madigan LL.B., Broker
Thanks for this detailed info Brian.
In the past 2 years when market was at peaks, many listings or schedule B had added that seller will keep full deposit if buyer defaults and deal is not closed by buyer. I am assuming here that mutual release was not even needed if buyer agreed to the clause.
In that case, what about Listing Agent or buyer agent’s commission.
Does the listing brokerage go to the court to get commission and distribute to LIsting agent and coop brokerage?
Or does the listing brokerage just release everything to the seller?
The Consent of BOTH parties to the agreement, that is, the Seller and the Buyer are required.
The Brokerages are not part of the agreement.
Unless, the parties mutually agree to transfer the money and pay them a commission, then, they will have to go to Court.
The Brokerage requires the Consent of the parties not a Release.
If the parties cannot agree, then they can always secure a Court Order.