The importance of complying with the living area and the location of common spaces mentioned in the preliminary contract for the sale of a condominium unit
The signing of the preliminary contract by the purchaser and the developer represents the first step towards the sale of a condominium unit. It is essentially a contract by which the buyer agrees to buy, and the developer agrees to sell the coveted property on the terms of the purchase.
While the construction of a condominium project may involve certain hazards, compliance with the conditions of the preliminary contract is paramount. Indeed, the fact that a developer delivers a condominium unit with a living space or a ceiling height less than that advertised or changes the location of common facilities following the conclusion of the preliminary contract, could expose it to various legal actions undertaken by dissatisfied buyers.
Indeed, the Civil Code of Quebec stipulates that “every person has a duty to honour his contractual undertakings.” In particular with respect to the concept of acreage, the Civil Code of Quebec provides that “where the seller is bound to deliver the area, volume or quantity specified in the contract and is unable to do so, the buyer may obtain a reduction of the price or, if the difference causes him serious injury, resolution of the sale.”
Based on these provisions, the Superior Court in Duval v. Habitats District Griffin Island 10 inc. , condemned the developer to pay the purchaser $73,000.00 as a reduction of the sale price, after the buyer discovered that the net area of his condominium unit was about 12% less than the one indicated in the preliminary contract. The Court of Appeal recently upheld this judgment, adding that the purchaser had not tacitly waived his rights and recourses by signing the deed of sale.
In 6169970 Canada Inc. v. Lesage , the Court of Appeal reiterated the importance of condominium developers respecting the terms of the announced plans for purchasers. In this case, the Court upheld the trial judgment which condemned the developer to repay the deposits paid by the purchaser totaling $84,845.64. The latter had refused to conclude the sale after learning that amenities, such as a training room, would not ultimately be built in his building and that the height of the ceilings of his private unit was less than that announced in the preliminary contract.
Finally, in Labelle v. Liguori Inc. , the Court of Québec condemned the developer to pay the plaintiff $15,000.00 as compensation for loss of enjoyment of her condominium unit. Indeed, after the conclusion of the sale, the plaintiff realized that common facilities, namely the fitness room and swimming pool of the building, had been built in front of her unit, causing her more inconvenience than anticipated. Considering that the location of these facilities differed from what had been agreed on the plans at the time the plaintiff reserved the condominium unit, the Court held that the developer had failed in its obligations and had to repair the damage suffered by the plaintiff.
[1] 1458 al. 1 C.c.Q.;
[2] 1737 al. 1 C.c.Q;
[3] Duval v. Habitats District Griffin Island 10 inc., 2018 QCCS 4703;
[4] 6169970 Canada inc. c. Lesage, 2019 QCCA 1867;
[5] Labelle v. Liguori inc., 2016 QCCQ 9244.