Lost in Translation: Avoiding Misunderstandings When Dealing with Clients in Languages Other Than English #528

In BC, real estate contracts are only available in English. However, clients may prefer to communicate in a language other than English and may choose to work with a REALTOR^® who can communicate in this language. When this happens, and especially when such clients have not purchased property in BC before, there is an opportunity for misunderstandings.

A recent Ontario case¹ illustrates the potential for misunderstandings when dealing with clients whose preferred language is not English and who may not understand real estate contracts as written. In this case, the parties and licensees communicated in Russian throughout the transaction. When the transaction collapsed, the buyer claimed he had not read or understood the terms of the contract of purchase and sale or subject removals he had signed, all in English, and therefore he should not be held to the contract terms. This type of legal defence has a Latin name, non est factum, which means “it is not my deed.” It is well-settled law that a party is bound by a contract they have signed, absent fraud or misrepresentation.²

For the court to accept a non est factum defence, it becomes necessary to scrutinize the circumstances of the execution of the contract of purchase and sale and any other documents related to the transaction. The licensee’s memory of the circumstances of the execution of the contract of purchase and sale, including any specific terms discussed, will often be called upon.

In this case, the judge accepted the licensee’s evidence that she had reviewed and explained the subject conditions with the buyer, and the implications of removing those subject conditions. The licensee also gave evidence that she believed the buyer understood and was familiar with the process from prior transactions he had been involved in. The judge did not believe the buyer’s claim that the licensee had told him that, even after subject removal, he could still get a home inspection and get out of the contract up until the closing date. As a result, the buyer was held to have breached the terms of the contract.

The opposite conclusion was reached in an older Ontario case,³ where the judge found that two licensees had failed to properly explain the terms of an exclusive buyer’s agency agreement and a contract of purchase and sale to their clients, who were recent immigrants from Russia with little or no English proficiency, making their first real estate purchase.

In this case, the judge accepted the buyers’ evidence that they had met with the licensees late at night when they were very tired. The licensees had a stack of papers that they asked the buyers to sign as they flipped through the pages. The licensees did not explain any of the documents, nor did they leave copies with the buyers. One of the documents the buyers signed was an acknowledgment that the property they were making an offer to buy had been a marijuana grow op. The judge accepted the buyers’ evidence that they would have never signed such a document had they understood what it was, as one of the buyers had severe asthma. The judge also accepted the buyers’ evidence that they would have never signed the buyer’s agency agreement had they known it had a term of six months. The judge found the licensees had breached their fiduciary duty to the buyers and ordered damages against the licensees.

When working with clients whose preferred language is not English, Realtors should spend ample time to adequately explain the terms of any and all documents the clients are asked to sign; refer to another professional such as a lawyer or a certified translator if there are any areas of concern; and take good notes of any discussions had with clients. When dealing with clients who are new to Canada or to real estate purchases in Canada, Realtors should also remember that in other jurisdictions, contract law or commercial practice with respect to subject conditions or deposits, for example, may differ and clients may need these concepts explained.

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