Brian Madigan LL.B., Broker
BRMadigan@Rogers.com

RE/MAX West Realty Inc.,
Brokerage
Independently owned and operated

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300

Cell: 647-404-8150 
Toll Free: 1-888-507-0817

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“Earned Payment Non-refundable Deposit” Clause

January 22, 2018 - Updated: January 22, 2018

“Earned Payment Non-refundable Deposit” Clause
 

We looked at the issue of the proper need to adjust the wording in respect to a non-refundable deposit. If someone purchases a product over the internet for $5,000.00 and puts down a $100.00 “non-refundable deposit”, then fails to complete the purchase, the matter is rarely litigated. The Seller keeps the deposit. The forfeited amount is not significant.
 

When it comes to real estate transactions, the deposit can be quite sizeable.
 

Here’s a clause for consideration:
 

“The Buyer agrees to pay:
 

1)    Initial Deposit in the amount of $25,000.00 herewith,
 

2)    Second Deposit in the amount of $100,000.00 upon waiver of the following conditions:
 

a)     The sale of XYZ property,
 

b)    Confirmation of financing, and
 

c)     Inspection of building by structural Engineer,
 

3)    Third Deposit in the amount of $400,000.00 12 months following the acceptance of the agreement.
 

The parties agree that upon payment of the third deposit, the initial deposit and the second deposit shall become “non-refundable”, and notwithstanding any other provisions of the agreement shall be paid and transferred to the credit of the Seller upon either upon completion or termination of this agreement. Such non-refundable deposit shall be an earned payment in accordance with the provisions of the agreement in the event of termination and shall not be a penalty. In the event of successful completion, such non-refundable deposit shall be credited towards the purchase price.”


 

Comment

 

There are many other clauses. One could also include something of an explanation in another paragraph. The payment was earned due to the passage of time. The payment on non-completion was paid for an option to purchase which otherwise took the property off the market”. Such an explanation assists the Trial Judge arriving at the conclusion that the:
 

·        Parties agreed

·        It was not a mistake

·        They directed their minds to it

·        The property was off the market

·        The Seller should indeed be paid

·        This was not a penalty
 

Most of the time when a “non refundable deposit” is used, there is nothing more in the agreement other than the simple words “non-refundable”. That, of course, begs for an explanation.
 

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com



Tagged with: non-refundable deposit clause agreement deposit forfeiture penalty explanation ontario law
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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

Phone: 416-745-2300

BRMadigan@Rogers.com

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