Ontario Civil


Agency

REAL ESTATE AGENTS AND BROKERS
Commission term triggered by qualifyingoffer to purchase

Action by realtor for $8,995 commission plus GST pursuant to listing agreement. Defendant’s property was listed for $199,900. Commission terms of listing agreement stated in consideration of plaintiff listing property, defendant agreed to pay brokerage a commission of 5% of the sale price or 4.5% if sold by plaintiff personally for any valid offer to purchase the property from any source obtained during the listing period and on the terms and conditions set out in agreement or such other terms and conditions as defendant may accept. Plaintiff obtained offer for property at listing price on last day of term of listing agreement, but defendant refused to accept. Defendant argued commission was only payable if he accepted offer and property sold. Defendant further argued that agreement was void because plaintiff was working for him and prospective purchaser and because offer did not meet his conditions of 15-day closing, requirement that buyer install septic tank and well and pay registration fee. Action allowed. There was no doubt defendant began avoiding plaintiff and frustrating his attempts to sell property because he had decided not to sell unless he was able to purchase a farm. “Sale price” in commission clause of listing agreement referred to sale price in offer and did not require a completed sale. Commission term was triggered by qualifying offer to purchase. Offer in question was for listing price. Defendant did not respond to plaintiff’s attempts to contact him about offer until plaintiff advised defendant commission would be payable regardless. Defendant then met plaintiff, refused to sign offer and complained plaintiff was harassing him. Land in question was bare and there was no evidence 15-day closing date and septic tank and well requirement were important terms. Furthermore, defendant had made previous counteroffers that removed these terms. Registration fee was a mere $70, so this was not a material condition. Plaintiff obtained offer matching listing price, so clearly did not breach his duties to defendant. Plaintiff acted in good faith throughout and invested significant work and expense. Defendant changed his mind and turned his back on the contract. Defendant to pay $8,995 commission plus GST. Defendant’s offer to settle for $250 did not impact costs. Trial took two days, with some delay caused by plaintiff’s lawyer’s absence. Defendant to pay $1,225 costs.

T.L. Willaert Realty Ltd. v. Fody (

Oct. 4, 2011, Ont. S.C.J. (Sm.Cl.Ct.), Searle D.J., File No. 144/10) 207 A.C.W.S. (3d) 615 (13 pp.).

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