Law Times

Law Times • June 9, 2014 Page 13 www.lawtimesnews.com Communication missteps Case shows dangers of 'broken English' through e-mail By marg. Bruineman For Law Times hen it comes to closing a real es- tate transaction, it's all in the de- tails. And even with the means available to simplify the process, there are no shortcuts around the details that are necessary to close a deal. A series of missteps in one recent dispute between real estate agents left the deputy judge to begin his observations by noting the perils of miscom- munication by e-mail. "This case would make a good case study for realtors on how not to conduct a real estate transac- tion. And it is another poster- child for the wonders of mis- communication by e-mail." Deputy Judge Sebastian Winny's pronouncement came in the context of a Small Claims Court dispute over a real estate transaction and the f low of of- fers and counteroffers. At its core, Pilon v. Rosu in- volved a deal interpreted dif- ferently by the buyer and seller with questions over the legiti- macy of the contract. There was a $10,000 difference in their re- spective understandings of the sale price of the home in Kitch- ener, Ont., and the buyer failed to close because a tenant hadn't vacated within the expected time frame. "The case itself goes back to the basic principles of of- fer and acceptance," says Mark McMackin, a partner at Brauti Thorning Zibarras LLP. Those principles, taught in law school, are also part of the qualifica- tion courses real estate agents go through to get their licences. "The agent for the purchaser has a duty to communicate ef- fectively not only with the law- yers and the purchasers but the other side. If there was no deal at the amount, then that should have been properly conveyed amongst the agents' brokerage houses. The judge is merely ap- plying the basic law of contract." Ultimately, Winny dismissed the seller's action for damages after determining there was no valid contract. But in his deci- sion earlier this year, he found a series of mistakes that began with the address described in the offer as being 208 Paige St. instead of 208 Paige Place. The court only had the final offer to work with but recon- structed the offers and coun- teroffers transmitted as attach- ments via e-mail. Mistakes in the back and forth of the offers included inconsistent witness- ing and missing signatures. There was also a page frequently missing in e-mail transmissions and signatures absent from the changed price in a counteroffer. Although the signatures were missing alongside the changed price from the sellers' counteroffer, the buyer's agent overlooked the error. But what stopped the deal was the fact the tenants hadn't vacated the premises by closing day and the sellers wouldn't ex- tend the closing date. The sellers later said the house was avail- able, but the deal was already off the table. In his decision, Winny deter- mined there was no enforceable contract. He found there was nothing to indicate acceptance of the counteroffer that was missing a page and contained no signatures on the revised price. "It contained, in fact, nothing to indicate acceptance of their counteroffer," he wrote. And he found a purported final docu- ment transmitted later on was ineffective because it occurred after the counteroffer had ex- pired. "There being no contract be- tween the parties as alleged, the defendants could not be liable for breach of it by failing to close on Dec. 16 and the plaintiffs' claim was dismissed." For lawyer Andrea Kelly, the case underlines the care and diligence required to properly put together a deal and the thor- oughness and clarity necessary in communications between real estate agents and their cli- ents. "Attention to detail was an issue," says Kelly, a sole practi- tioner based in Markham, Ont. "If you get back a supposedly signed document, for goodness sake, make sure it's actually signed and the one you intended to have signed. "If they're going to use e-mail, all I can say is you've got to pay attention." Kelly suggests an extra level of care is necessary when e-mail is the method of communica- tion. Technology, she adds, can be useful but only if the parties use it properly. There's software available to help track various versions of a document that can go back and forth until the par- ties agree on a final contract. And locking a document to prevent alterations it is another option. But for Kelly, the case also raises the issue of the role of the lawyer in a real estate transac- tion. Too often, she says, the lawyer comes in at the end. A better scenario would be to em- ploy the lawyer during the con- tract negotiation phase of the transaction. "This is a great case as well that highlights the sound bite back and forth that exists now in our electronic age," says Mc- Mackin. "This broken English results in a lot of confusion, and I find it a little alarming that these issues weren't sorted out between the lawyers well in advance of [clos- ing]." LT FOCUS We've got law covered. canadianlawyermag.com lawtimesnews.com | canadianlawlist.com canadianlawyermag.com/legalfeeds Untitled-1 1 14-05-07 7:18 AM W If you get back a supposedly signed document, for goodness sake, make sure it's actually signed and the one you intended to have signed.

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