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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

    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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    Posted By: Noah Potechin of Merovitz Potechin LLP

    Associate

    Noah Potechin joined Merovitz Potechin LLP in 2013 as an articling student and was called to the Ontario Bar in June 2014. As an articling student, Noah was exposed to a wide range of legal issues, such as residential and commercial real estate, leasing, business law, estate litigation and construction lien work. He has now begun practicing law full time at Merovitz Potechin LLP, focusing primarily on residential real estate and mortgage enforcement.  Noah also practices in the area of private mortgage financing, title corrections, commercial real estate transactions, residential leasing, development law and the preparation and registration of Notices of Lease.

    When not spending time with his young family or exploring world cuisine with his wife, Noah can be found at the top of mountains eager to snowboard or in his dojo, teaching the martial art Aikido.

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