Do you have a Real Estate dispute? In the legal profession Real Estate dispute work is done by a Real Estate Litigation Lawyer. However, most individuals outside of the legal profession will refer to them as a Real Estate Lawyer.
Please note: We are not Real Estate Solicitors. This means that we do not perform work related to the purchasing, selling, financing of a home etc. McMackin Law is focused on where a Real Estate dispute has arisen. If you need assistance finding a Real Estate Solicitor, we can point you in the right direction.
McMackin Law has experience handling a variety of Real Estate Litigation matters. Some of the Real Estate Litigation matters we can help you with are the following:
There are two types of defects that are commonly relevant in real estate transactions. There are patent defects which are defects that could have been discovered by an inspection prior to purchasing a property. An example of this would be a dent on a railing, a hole in the wall, damaged floor tiles etc. These defects will typically not give you a basis to seek damages. (There are exceptions)
Latent Defects are those defects which cannot be discovered by an inspection prior to purchasing a property. They will usually give rise to a cause of action. This means that you will usually be able to bring a lawsuit seeking damages for correcting defect. The law generally tries to put you in the position you would have been if there had not been the defect(s).
For more information on Patent and Latent Defects, visit McMackin Law’s article, “Can You Sue for Latent Defect & Patent Defect?”
In general, when a buyer fails to close and the seller is ready, willing and able then the buyer will forfeit the deposit. Additionally, the seller can sue the buyer for the losses that occur in reselling the property. This includes any loss in sales price, additional legal fees incurred, closing costs and carrying costs.
Conditions are terms that are essential to a contract to the point where the Buyer would not have entered the contract had it not been for the Condition. If a condition is breached then the Purchaser may be able to seek damages, back out of the deal or request the agreement be rescinded.
Warranties do not go to the root of the contract. They are viewed as additional terms. A breach of warranties would allow the purchaser to sue for damages. It would not give the purchaser the right to seek rescission.
Misrepresentations may be referred to in the following ways:
Negligent misrepresentation typically occurs where something is said that does not represent the true facts. An example would be to say the marble counter tops were put in 5 years ago when they were put in 8 years ago.
Fraudulent misrepresentation is where the seller induces the buyer to enter a contract based on false statements. Examples of this could be where the seller said the house was 5 years old, but it was actually 15 years old. Another example would be if the purchaser in writing asked if there had been any water leaks in the house and the seller responded no but there had been leaks in each of the past 3 years.
Oral misrepresentation is a misrepresentation made verbally. These are more difficult to prove as they require assessments as to credibility to be made by Judges.
Written misrepresentations are misrepresentations in writing and often give rise to a cause of action.
The nature of the misrepresentation will determine the causes of action that are available. Typically, you will be entitled to a claim for one or a combination of the following:
Delay claims typically arise where a subcontractor takes longer than the agreed amount of time to complete the work. As a result of this the other subcontractors are delayed and in many cases, will be owed money in relation to the delay.
A Fraudulent Conveyance is where property is transferred out of one person’s name into another person’s name in an attempt to avoid collection by creditors. This happens frequently when a party is expecting a lawsuit or is in the middle of a lawsuit. If the Fraudulent Conveyance can be proven you will typically be able to claim against the person in possession of the property.
In situations where a Fraudulent Conveyance has occurred the first thing, we usually recommend doing is obtaining a Certificate of Pending Litigation. This requires a motion that is typically brought without notice to the other party. If successful on the motion you can register a Certificate of Pending Litigation against the property. This makes it very difficult for the property to be sold or receive financing without paying you the money you are owed.
If you need a Real Estate Lawyer with Real Estate Litigation experience McMackin Law can help you. Ryan has experience litigating claims for Delay, Misrepresentation, Failure to Close, Fraudulent Conveyances and Latent Defects.
At McMackin Law we proudly serve Pickering, Ajax, Whitby, Oshawa, Durham Region, Courtice, Bowmanville, Newcastle, Clarington, Port Hope, Cobourg, Brighton, Northumberland County, Toronto and surrounding areas.