The vendor who eventually re-listed the property after the defendant failed to close, and resold the property at a lower price (the highest offer they received after the failed closing), was awarded the following heads of damages:
- The loss on the selling price,
- ongoing mortgage interest paid while waiting for resell,
- renewal fee for their outstanding mortgage,
- lost interest on the “net” sale proceeds the vendor would have pocketed if the sale went through (at 1% per annum),
- home insurance paid while waiting for the resell,
- realty taxes paid while waiting for the resell,
- additional real estate commissions.
The additional real estate commission arose because the initial sale was brokered through one agent (2% commission), and the subsequent sale was brokered through two agents (a selling and a listing agent, each to get 2.5%). The court held that the defaulting defendant knew the risk that the next sale might go through two agents, and as such would be on for the extra set of commission owing, but the court felt it unforeseeable to the defaulting defendant that the rate would increase from 2% to 2.5%, such that the court only held the Defendant to an additional 2% commission as the penalty for not closing.
The vendor also made a claim for equipment storage fees which was rejected, because the vendor had always expected to keep the equipment stored off-site, and whether the deal fell through or not was immaterial to this cost.
Sansalone v. Qiu, 2022 ONSC 286
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc286/2022onsc286.html