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Does a Seller Have to Wait for a Better Market to Sell their Property in Order to Mitigate Their Damages Where the Buyer has Failed to Close?

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In Briscoe-Montgomery v. Kelly, 2014 CarswellOnt 9707 (S.C.J.), the plaintiffs sold their hobby farm to the defendant for the sum of $458,000.  The closing was scheduled for September 14, 2012.  The defendant failed to close because of lack of financing.  The plaintiffs then immediately relisted the home for sale at a price of $449,000.  They were unable to sell their property in September, October and November.  On the advice of their real estate agent, the plaintiffs reduced their selling price to $429,000.  They ultimately accepted an offer at $415,000 in January 2013 and the sale closed on March 1, 2013.

The defendant alleged that the plaintiffs could have obtained a higher selling price by waiting to relist their property the following spring since it is generally better to sell in the spring.  As a result, the defendant argued that the plaintiffs failed to mitigate their damages.

The court held that the plaintiffs did not fail to mitigate their damages by not waiting until the spring to relist their property just because it is generally better to sell in the spring. It was reasonable for the plaintiffs to promptly return their property to the market and to accept the first reasonable offer that they received.

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