Legal Blog

Time of Essence

Deangelis v. Weldan Properties Inc. 2017 Ont SCJ

Closing set for August 23. Time was of the essence in the agreement. On the date of closing, purchaser’s lawyer contacted the developer vendor’s lawyer indicating that, although the mortgage was approved on August 22, it could not be advanced in time for the closing; the lawyer requested a 3-day extension. Later that day, the vendor’s lawyer responded noting that there was an anticipatory breach, terminating the agreement, and claiming forfeiture of the $20,000 deposit. In effect, the purchaser repudiated the agreement and the vendor accepted that repudiation or before the closing date to terminate the agreement. The purchaser moved for specific performance and the vendor moved to obtain the deposit. On a summary judgment motion, the judge held for the vendor. Good faith was not relevant and the inability of the purchaser to close the transaction had nothing to do with the vendor. Parties must be allowed to insist on strict compliance with the terms of an agreement; otherwise there is uncertainty.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.