LAW 703 Chapter Notes - Chapter 10: Cell Site, Rescission, Equitable Remedy
LAW703 – Lecture 10: Remedies – Chapter 10
Remedies
Buyers Remedies
Affirms APS
Rescinds APS
End APS and seeks Damages
Additional Remedies
Buyer Affirms APS and Wants Property
Buyer Seeks specific performance with abatement or not and claims damages.
NB: Abatement – reduction in price
Registration on Title (Give notice of claim)
1. Certificate of Pending Litigation
2. APS – creates rights in the property that will be carried out in closing
a. Land Transfer Tax applicable
3. Caution – notice that discloses to anyone researching title that there is an issue (Land
Titles Act)
a. 60 days to commence action, register
Once property sold to a third party, specific performance is not an option
Buyer Completes APS and does not seek damages
Clause #14 APS – Elect to close and take insurance money
Clause #10 APS – Buyer requisitions title defect, seller cannot resolve it or get title
insurance, buyer waives requisition
Buyer waives other sellers default
Waives condition precedent.
Buyer Rescinds APS
Buyer returned to position he/she was prior to APS
Buyer Ends APS and Seeks Damages
End APS
Sues for damages
Additional Remedies
Buyer ends APS and seeks return of deposit
Buyer may seek remedy from others (real estate agent, lawyers..)
Condition V. Warranty
- Condition (fundamental term – substantial deprivation), if breached – buyer can elect
not to complete agreement
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find more resources at oneclass.com
LAW703 – Lecture 10: Remedies – Chapter 10
- Warranty (not substantially deprived), if breached – buyer must complete and can sue
for damages
Jorian Property V. Zellenrath
- APS stated property is a 5-plex and can continue to be used lawfully as such
- Property zoned for triplex
- Buyer refused to close and sued for damages
- Clause in APS – Present Use
- Prior to closing buyer finds out
- Judge ruled it was a warranty – not substantial deprivation
- Ideal situation – go to court before not fulfilling closing. Buyer then counter sued for not
closing.
Dravidian Management V. Vrhounik
- Buyer alledged breach by Seller in APS
- Error in expenses
- Buyer went to court seeking specific performance with an abatement
- Reduction in value of property by 10%
- Court ruled it was a condition
Seller’s Remedies
Affirms APS
Rescinds APS
Ends APS and Seeks Damages
APS is completed and Seller Seeks balance of price
Seller Affirms APS
- Completes APS and Sues Buyer for Damages
- Completes APS and does nto sue for damages
Seller Rescinds APS
- Seller wants be placed in position he/she was in before APS
Seller Ends APS and seeks damages
- Seller seeks damges from buyer or forfeiture of deposit
- Seller cancels APS per clause #10 (title defects that buyer wont waive) and gets no
damages or deposit
APS is completed and Seller seeks balance of price
Specific Performance
Historically, Unique parcels of land – damages couldn’t compensate for
Today – Much more difficult for a buyer to get specific performance
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Buyer seeks specific performance with abatement or not and claims damages. Titles act: 60 days to commence action, register. Once property sold to a third party, specific performance is not an option. Buyer completes aps and does not seek damages. Clause #14 aps elect to close and take insurance money. Clause #10 aps buyer requisitions title defect, seller cannot resolve it or get title insurance, buyer waives requisition. Buyer returned to position he/she was prior to aps. Buyer ends aps and seeks return of deposit. Buyer may seek remedy from others (real estate agent, lawyers) Condition (fundamental term substantial deprivation), if breached buyer can elect not to complete agreement. Warranty (not substantially deprived), if breached buyer must complete and can sue for damages. Aps stated property is a 5-plex and can continue to be used lawfully as such. Buyer refused to close and sued for damages. Judge ruled it was a warranty not substantial deprivation.
