Ontario sellers have some onus to try to reduce their losses, such as by accepting reasonable offers when they relist their home. Certainly, having proof of legal fees, restaging costs, or mortgage-related expenses caused by a last-minute cancellation improves the seller’s case. For instance, a seller who bought a new home and is juggling two mortgages may be burdened by the buyer’s cancellation.
The standard of proof is not perfect. Every situation is different, and Ontario courts don’t have a list of actions sellers must take. It’s up to buyers to prove a seller didn’t do enough to minimize their losses. Not relisting or hesitating to do so, accepting less than the home is worth, or not following through on potential offers could be enough for the buyer to avoid liability (Talisman Homes Ltd v Endicott, (2002)).
Mitigation doesn’t, however, require the seller to accept a lower offer from the initial buyer. Once the contract is broken, the seller has the right to walk away and, in many cases, keep the deposit. Axess Law’s North Bay real estate lawyer ensures the agreement of purchase and sale covers what happens to the deposit if the deal falls through.