It is not uncommon that buyers or sellers look for ways of
getting out of real estate deals. In fact, many mediations involve
just that, more often than not, buyers who want to avoid their
obligations to close a real estate deal. Often, they cannot get the
financing they need or have not been able to sell an existing home
or the market has dropped. They then submit requisitions or object
to the seller's formal compliance with tender obligations to
justify their refusal to close. The pleadings in defence to the
seller's claim to damages and forfeiture of deposits are
typically technical and creative.
The courts however tend to favour good faith and reasonable
conduct and as a result, testing the defence in court is fraught
with challenges, especially when the issues raised suggest that
they were not critical to the purchaser's decision not to
close. For that reason alone, the uncertainty of a successful
decision as well as the costs repercussions warrant a
