This is great news for agents who have worked hard to procure an offer complying with the listing agreement only to have the seller refuse to accept the offer.
In a recent case the Superior Court of Justice has confirmed the judgment of the Small Claims Court that as the full price offer in question was in sufficient compliance with the listing agreement, commission is payable.
The case is fact specific. The listing agent had procured and presented several offers during the listing period.
The court found that the seller was in fact “avoiding and otherwise frustrating” the agent because the seller had “decided not to sell unless he was able to purchase a farm. When the prospect of purchasing the farm evaporated …he became inaccessible…and refused to act in good faith…”.
Although the offer didn’t conform exactly with the terms of the listing agreement, the court found one of those terms to be “amazing miniscule…in such a large transaction” and others to have been contained in the offer or not required.
The court cited a judgment of the Supreme Court of Canada holding that “A vendor may still be liable for the commission even though the transaction does not close, provided the vendor knows or can be taken to know what the agent has undertaken to do to get the commission”.
As a seller, you may consider it prudent to amend the standard form of listing agreement to suit your needs and circumstances.