Purchaser of Luxury Condo Allowed Return of Deposit

299 Burrard Residential Limited Partnership v. Soroor Essalat (B.C.C.A., June 21, 2012) (34968)

The Purchaser agreed to purchase from a developer a strata title apartment in a luxury condo & hotel development situated at waterfront Vancouver. This was a “pre-sale agreement” and the agreement was signed long before the unit was actually built.

In accordance with the requirements of the Real Estate Development Marketing Act (“REDMA”), the developer filed a disclosure statement, which stated that the estimated date of completion of construction for the development was September 2009. The development was not fully completed until April 2010, even though the City of Vancouver issued an occupancy permit for the unit on January 25, 2010. While the developer continually issued “informal notices” to the Purchaser by way of letters, etc., no formal amendment to the disclosure statement was made to correct the completion date stated on the disclosure statement.

When the time came to close the purchase, the Purchaser refused to close. The developer then began proceedings seeking forfeiture of the full deposit that the Purchaser had agreed to pay.

The trial judge held that the agreement to purchase was enforceable, notwithstanding the incorrect completion date in the disclosure statement.

Court of Appeal ruled in favour of the Purchaser, and ordered that the Purchaser was entitled to return of the deposit. The developer appealed to Supreme Court of Canada but the application for leave to appeal was dismissed with costs.