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

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

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300
Toll Free: 1-888-507-0817

 

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Returning the Deposit in a Failed Transaction

November 29, 2016 - Updated: November 29, 2016

Brian Madigan LL.B., Broker

 

Returning the Deposit in a Failed Transaction

 

What documents do you need?

 

You are going to have to have some paperwork for the file. If the deal fell through and the deposit is to be returned to the Buyer then you will need:

 

1)    A Mutual Release, or

 

2)    A Court Order.

 

Where did I get that idea? Actually, it’s practically word for word from the Real Estate Council of Ontario (RECO):

 

 

“In summary, in the case of a failed transaction, a brokerage should only disburse the deposit in two circumstances:

 

1. In accordance with a release or direction signed by all parties to the Agreement (Mutual Release) or;


2. Upon receipt of a direction from the Court (Court Order).”

 

Source: Bulletin “Failed Agreements of Purchase and Sale” March 25, 2015

 

However, read the section a little more closely. Many registrants have the impression that a Mutual Release is required. That’s not right and that’s not what this Bulletin says. It refers to a “release or DIRECTION” signed by all parties to the Agreement. Unfortunately, it then refers to this document as a “Mutual Release”. It should have also said “DIRECTION” or “Agreement which would have included both documents. Please note: it is “EITHER/OR”.

 

Parties means the Seller or Sellers, and the Buyer or Buyers. Everybody who signed the Agreement of Purchase and Sale would have to “sign off”.

 

Specifically, it does not mean Brokerages. They have nothing to do with it. They have “no say”. Their signatures, consent, or agreement is not required. They are not “parties” to the transaction.

 

Release

 

In fact, a mutual release is not necessary, nor is the release of any party. It should be noted that the standard form Mutual Release from OREA contains a direction with respect to payment of the deposit. Where is it going?

 

Direction

 

The key item is the agreement between the parties as to the deposit. Who gets it? The trustee or stakeholder of the deposit needs to be told by ALL parties. If that is the case, then the deposit can be transferred as agreed.

 

The direction could be a “stand alone” document. It just so happens that there is one in the standard form Mutual Release.

 

However, all that is required is the direction. The release is superfluous and unnecessary.

 

Court Order

 

You can appreciate that if the parties cannot come to any arrangement, then it will be up to the Court to decide. That might be at any point in time, early in the proceedings or as late as sometime following the Judgment. The Brokerage must follow the Court’s instructions.

 

Registrant’s Risk

 

It is important to secure a Direction in order to deal with the deposit. A release probably requires “legal advice”. It would be in error to advise a party that a Mutual Release is necessary.

 

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com


Tagged with: deposits mutual release direction reco advice 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,

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