Duty of a Vendor to Make Himself Available on Closing Date #10

By Gerry Neely
B.A. LL.B.

Can vendors who neither want to complete their sale nor pay a commission, succeed by the simple act of making themselves unavailable at the time fixed for completion, and by instructing their conveyancer to do the same. Not according to a decision of a Vancouver County Court Judge in an action brought by an agent for payment of its commission.

The vendors were aware through the notary public who was representing them and who had discussions with the purchasers' solicitor, that the purchasers intended to complete their purchase. However, the Purchasers' solicitor was unable to make the usual arrangements for the execution and exchange of documents and monies in trust, because the vendors' conveyancer failed to answer telephone calls and could not be located on the closing date. The documents and purchase monies were mailed to the notary public but they were not received until the day following the closing date.

Naturally, the vendors' defense was that tender was not made in time. The issue was whether the vendors had a duty to make themselves available on the closing date. The Court held that if the purchasers had met their obligation under the contract, then the vendors' duty was to seek out the purchasers on the date of closing. In reaching this decision, reference was made to an earlier Supreme Court of British Columbia decision (Burtini vs. Sovilj 61 D.L.R. (3rd) 505), where the Court stated that it was the obligation of the vendor to arrange to meet the purchasers at the Land Title Office on the closing date for the purpose of exchanging documents and money. A similar obligation is imposed upon a purchaser.

Fortunately, the vast majority of transactions are completed by the usual trust agreement made between conveyancers acting for both parties, an agreement that avoids a meeting of parties at the Land Title Office. However, these cases indicate a method whereby a vendor or purchaser may clearly establish that either was ready, willing and able to complete his sale or purchase.

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