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关于mutual release的误区,卖家需要签完mutual release form才能relist吗?

本文发表在 rolia.net 枫下论坛答案是否定的,能否relist取决于1。合同有没有条件。2。违约是由哪一方引起的,原因是什么 3。买卖双方有没有CLOSE的意愿,是否尽到了提供对方close的一切便利。第一条很明显,比如验房条款通不过,必须要签mutual release。第二条比较复杂,具体情况具体分析,卖家不签mutual release 就relist的直接后果无非是买家提起诉讼,诉讼请求是什么?无非两点1。要求按照原合同close,2。要求退还定金,mutual release,如果是卖家隐瞒房屋本身重大信息,误导买家签了本身不会签的合同,或者卖方刻意阻挠买房合理的closing诉求,比如安排银行评估,贷款出现问题时要求延期并补偿一定费用,而导致违约的情况,责任自然在卖方,法庭判决有利于买方,反之如果是买家违约on firm deal ,无close意愿,卖家又提供买方close的一切便利,则买方的诉讼理由不成立,如果按原合同执行,是卖方愿意看到的结果,如果要求退还deposit,则如果卖家以比原来高的价格卖出房屋,则deposit会有所抵扣(合同法修改后,此判罚已不成立),反之则deposit全部判罚给卖家(见附录:判罚实例)。最后第三条,卖方是否显示出执行合同的诚意,法庭的依据是买方律师于交接日向买方律师发出的AVAILABLE FOR CLOSE的律师函。以及当买房由于贷款原因提出合理的延期交接的要求,卖方是否尽最大努力提供必要的合作。

以下是关于deposit的法律定义和没有mutual release 就resale的案例。

In Iyer v. Pleasant Developments Inc., [2006] 210 O.A.C. 90, 45 R.P.R. (4th) 147, the Ontario Divisional Court set out the following principles about the nature of “deposits” in Agreements of Purchase and Sale where there was uncertainty (i.e. no provision to the contrary) as to what happens to the deposit upon default by the purchaser:

* A deposit may be forfeited without proof of damages. In other words, even in the case where the seller resells at a purchase price that is high enough to compensate for any loss from the first sale, the seller may nevertheless retain the deposit.
* The use of the word “deposit” in an Agreement of Purchase and Sale, while not determinative, will imply that the payment is intended for forfeiture upon the purchaser’s breach. If the agreement is silent and the purchaser defaults, the deposit, by its very nature is forfeited to the seller.
* There are circumstances where the loss of a deposit may be subject to relief from forfeiture. If there is relief, the deposit is returnable, in whole or in part, to the defaulting purchaser.

Whether a Court will return a deposit to a defaulting purchaser depends on a three-part test (all of which must be satisfied):

* Was the conduct of the purchaser reasonable in the circumstances?
* Was the purpose of the deposit to secure the payment of the purchase price?
* Was there a substantial disparity between the value of the property forfeited and the damage caused to the seller by the breach?

案例
Recently, the Supreme Court of British Columbia in the case of Tang v. Zhang, 2012 BCSC214 clarified how deposits are dealt with when a real estate transaction fails. In this case, Mr. Zhang entered into a standard form real estate contract to buy Ms. Tang’s and Mr. Tsang’s property. Upon acceptance of his offer, Mr. Zhang paid a deposit of $100,000 to the realty company which holds the deposit in trust until the completion date. On the completion date, Mr. Zhang (Buyer) failed to complete the purchase and the contract was terminated. Ms. Tang and Mr. Tsang (Sellers) ultimately sold their property to another buyer at a higher price.

Ms. Tang and Mr. Tsang sued Mr. Zhang to keep the deposit. In their view, the Buyer repudiated the contract and the deposit should be forfeited to the Sellers. In response, Mr. Zhang argued that the Sellers never suffered any damages as the property was in fact sold for a higher price.

Section 12 of the standard contract of purchase and sale states that:
“12. TIME: Time shall be of the essence hereof, and unless the balance of the cash payment is paid and such formal agreement to pay the balance as may be necessary is entered into on or before the Completion Date, the Seller may, at the Seller’s option, terminate this Contract, and, in such event the amount paid by the Buyer will be absolutely forfeited to the Seller in accordance with the Real Estate Services Act, on account of damages, without prejudice to the Seller’s other remedies.”

It may seem like natural justice that a Buyer who breaches a contract for no good reason should have his deposit forfeited as “punishment” or “penalty”. Surprisingly to some, the judge in Tang held that Mr. Zhang was entitled to the full return of his $100,000 deposit. The proper construction of these contractual terms is this: If the sale does not complete, the deposit is not non-refundable or automatically forfeited to the Seller. Rather, the Seller is only entitled to claim the moneys paid as a deposit on account of its damages. Therefore, if the damages are less than the deposit, the Seller is not entitled to the excess, but it is returned to the Buyer.

It is notable that in this case, the Buyer was lucky enough to have breached the real estate contract in a rising market. If the Sellers had not in fact sold their property for a better price, the deposit would still have been deducted or absolutely forfeited as damages for the sellers’ loss.

Following the reasoning in Tang v. Zhang, Section 12 of the standard form contract was amended by the BC Real Estate Association to read: “… the amount paid by the Buyer will be non-refundable and absolutely forfeited to the Seller.”

Moral of the story: the usage of different wording in legal contracts may mean the difference of $100,000 (or more).

Vyvyan Tsui & Charles J. Cao, Barristers & Solicitors更多精彩文章及讨论,请光临枫下论坛 rolia.net
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  • 枫下家园 / 枫下觅巢 / 关于mutual release的误区,卖家需要签完mutual release form才能relist吗? +10
    本文发表在 rolia.net 枫下论坛答案是否定的,能否relist取决于1。合同有没有条件。2。违约是由哪一方引起的,原因是什么 3。买卖双方有没有CLOSE的意愿,是否尽到了提供对方close的一切便利。第一条很明显,比如验房条款通不过,必须要签mutual release。第二条比较复杂,具体情况具体分析,卖家不签mutual release 就relist的直接后果无非是买家提起诉讼,诉讼请求是什么?无非两点1。要求按照原合同close,2。要求退还定金,mutual release,如果是卖家隐瞒房屋本身重大信息,误导买家签了本身不会签的合同,或者卖方刻意阻挠买房合理的closing诉求,比如安排银行评估,贷款出现问题时要求延期并补偿一定费用,而导致违约的情况,责任自然在卖方,法庭判决有利于买方,反之如果是买家违约on firm deal ,无close意愿,卖家又提供买方close的一切便利,则买方的诉讼理由不成立,如果按原合同执行,是卖方愿意看到的结果,如果要求退还deposit,则如果卖家以比原来高的价格卖出房屋,则deposit会有所抵扣(合同法修改后,此判罚已不成立),反之则deposit全部判罚给卖家(见附录:判罚实例)。最后第三条,卖方是否显示出执行合同的诚意,法庭的依据是买方律师于交接日向买方律师发出的AVAILABLE FOR CLOSE的律师函。以及当买房由于贷款原因提出合理的延期交接的要求,卖方是否尽最大努力提供必要的合作。

    以下是关于deposit的法律定义和没有mutual release 就resale的案例。

    In Iyer v. Pleasant Developments Inc., [2006] 210 O.A.C. 90, 45 R.P.R. (4th) 147, the Ontario Divisional Court set out the following principles about the nature of “deposits” in Agreements of Purchase and Sale where there was uncertainty (i.e. no provision to the contrary) as to what happens to the deposit upon default by the purchaser:

    * A deposit may be forfeited without proof of damages. In other words, even in the case where the seller resells at a purchase price that is high enough to compensate for any loss from the first sale, the seller may nevertheless retain the deposit.
    * The use of the word “deposit” in an Agreement of Purchase and Sale, while not determinative, will imply that the payment is intended for forfeiture upon the purchaser’s breach. If the agreement is silent and the purchaser defaults, the deposit, by its very nature is forfeited to the seller.
    * There are circumstances where the loss of a deposit may be subject to relief from forfeiture. If there is relief, the deposit is returnable, in whole or in part, to the defaulting purchaser.

    Whether a Court will return a deposit to a defaulting purchaser depends on a three-part test (all of which must be satisfied):

    * Was the conduct of the purchaser reasonable in the circumstances?
    * Was the purpose of the deposit to secure the payment of the purchase price?
    * Was there a substantial disparity between the value of the property forfeited and the damage caused to the seller by the breach?

    案例
    Recently, the Supreme Court of British Columbia in the case of Tang v. Zhang, 2012 BCSC214 clarified how deposits are dealt with when a real estate transaction fails. In this case, Mr. Zhang entered into a standard form real estate contract to buy Ms. Tang’s and Mr. Tsang’s property. Upon acceptance of his offer, Mr. Zhang paid a deposit of $100,000 to the realty company which holds the deposit in trust until the completion date. On the completion date, Mr. Zhang (Buyer) failed to complete the purchase and the contract was terminated. Ms. Tang and Mr. Tsang (Sellers) ultimately sold their property to another buyer at a higher price.

    Ms. Tang and Mr. Tsang sued Mr. Zhang to keep the deposit. In their view, the Buyer repudiated the contract and the deposit should be forfeited to the Sellers. In response, Mr. Zhang argued that the Sellers never suffered any damages as the property was in fact sold for a higher price.

    Section 12 of the standard contract of purchase and sale states that:
    “12. TIME: Time shall be of the essence hereof, and unless the balance of the cash payment is paid and such formal agreement to pay the balance as may be necessary is entered into on or before the Completion Date, the Seller may, at the Seller’s option, terminate this Contract, and, in such event the amount paid by the Buyer will be absolutely forfeited to the Seller in accordance with the Real Estate Services Act, on account of damages, without prejudice to the Seller’s other remedies.”

    It may seem like natural justice that a Buyer who breaches a contract for no good reason should have his deposit forfeited as “punishment” or “penalty”. Surprisingly to some, the judge in Tang held that Mr. Zhang was entitled to the full return of his $100,000 deposit. The proper construction of these contractual terms is this: If the sale does not complete, the deposit is not non-refundable or automatically forfeited to the Seller. Rather, the Seller is only entitled to claim the moneys paid as a deposit on account of its damages. Therefore, if the damages are less than the deposit, the Seller is not entitled to the excess, but it is returned to the Buyer.

    It is notable that in this case, the Buyer was lucky enough to have breached the real estate contract in a rising market. If the Sellers had not in fact sold their property for a better price, the deposit would still have been deducted or absolutely forfeited as damages for the sellers’ loss.

    Following the reasoning in Tang v. Zhang, Section 12 of the standard form contract was amended by the BC Real Estate Association to read: “… the amount paid by the Buyer will be non-refundable and absolutely forfeited to the Seller.”

    Moral of the story: the usage of different wording in legal contracts may mean the difference of $100,000 (or more).

    Vyvyan Tsui & Charles J. Cao, Barristers & Solicitors更多精彩文章及讨论,请光临枫下论坛 rolia.net
    • 好 内容很丰富。
      • 谢谢,不想偏颇与任何一方,只是想指出,合同精神是诚信的基本原则,耍小聪明的代价是也被耍小聪明,买家可以违约不close,卖家也可以违约不签mutual release就重新上市。双输的结局。 +4
        • 9494。其实违约一直都有,也不是现在才有。诚信,还是诚信! +1
          • 跟在这里好了!更明显的位置。
            • 无耻之尤songlin在(#10801757@0) 造谣诬陷:“探长代表的另类盼跌们力荐买家毁约”。
    • 请版主加精! +2
      • 探长周二愉快
    • 学习学习。。。 +1
    • 你就直接说吧,如果是买方贷款下不来了close不了。卖方可否马上relist同时拿走买方定金
      • 不能,如果买家要求close合理延期并补偿期间产生的费用,卖家应当予以配合。
        • 如果卖家因为某些原因,不予以配合,会怎么样?
          • 那么,卖家将在法庭上失去优势地位!
          • 有条件的合同过期以后,
            如果买家不给签回release的话,中介会想办法和对方中介联系,尽快让客户签release合同。如果对方中介不合作,另一方中介会想办法和对方中介的manager联系push客户签release。至于毁约,我就不知道了。估计双方中介一定会在中间做一些工作,想办法先把事情给解决了。
      • close前,买方律师会事先拿到银行的联系方式,如果买方贷款下不来了,买方律师会尽快通知卖方律师要求延期的。
    • 已收,谢谢! +2
    • 如果因为买家没有意愿交接而造成违约事实后,Mutual release又达不成一致,卖家要尽快安排上市,以充分的市场Exposure和合理的交易程序卖房,这样才能向违约买家主张差价赔偿。 +7
      • 比如,违约的合同价格为110万,重新上市叫抢购价89万,一周后以94万成交,这样卖家主张违约方赔偿差价16万的主张得不到法庭认可,因为程序不正确。 +2
        • 卖家不能以扩大违约方损失的方式卖房,正确的做法是先叫110万,然后过段时间逐步降价。 +5
          • 赞老评为,非常详细!
    • This is a case not suitable to current downside market. +1
      • If the new sale cannot make profits to all parties on the property in dispute, especially in court motions, this property should not be attempted for a resale by any means. +1
      • In this case, if the seller sold the property at a lower price and claimed a damage caused, the buyer may file an anti-motion for court investigation if the new sale was fair and the procedure was legit. +2
        More or less there would be drawbacks found in any real estate transactions.
      • Conclusion: Why there were few court rulings in dispute of real estate transactions? The reason is that nobody can afford to the court ruling in comparison to a much lower cost of mutual release or out-of-court settlement. +1
        • 90%的情况会签mutual release,是因为买家承诺放弃定金,卖家承诺不再追究,还有10%的买家耍无赖不close,还要拿回定金才能签mutual release,卖家当然不会答应,打就打,卖家的损失绝不不会高过买家。 +2
          • How do you prove the "Damage" is real? If the seller don't sell the property, there would be no "Damage" at all. And if the original sale was fair, why the new sale cannot be at least at par?
            • 买家毁约的官司, +2
              举证责任在买家,卖家只要要列举自己的damage,比如两次交易的差价,买家需要举证一一反驳并让法庭彩信,如果没卖房,也不代表卖家没有damage,律师费,误工费,新房close延期产生的费用都是damage,至于现在为什么没卖到当初的价就更不是理由了,完全是一个主管的标准,对方律师一句,为什么在卖出更高价的时候就没有买家来提当初的价格是不是fair price,就把你打回去了。除非买家能证明卖家当初卖出的价格是通过刻意误导取得的,比如虚报面积,地税,虚侯竞标者的。不然成交价就是市场价。
              • That's why the deposit applied here.
                The sale price must be fair from the day of contract to the day of completion. There is no damage which can be claimed more than the deposit. The rules made by TREB becomes meaningless if the sale price is no longer fair. Contract must be judged by law. TREB cannot make law.
                • 你没搞懂什么叫Fair market price. 去查一查定义吧。 +3
                • 不带这么瞎说的LOL. +2
    • 学习了
    • zhang和tang的官司: standard contract section 12 措辞(wording)有漏洞导致法官判决卖家返还买家的定金,这个案子结案以后,standard contract section 12修改了,定金必须给卖家. 我理解的对吗?
      • 理解的对,我也指出了,合同法条款因此案而修改,堵上了漏洞
    • 如果签了mutual release是不是肯定没有后续的法律责任了?
      • 对,所谓mutual就是双方自愿的基础上互相让一步,跟撞车私了一样,你赔点钱,我同意不报保险。有法律效力的。
    • 贴子里的案例是提到的bc省的合同,这个条款在安省的好像没有,有没有安省的类似案例呢?