We signed an Agreement of Purchase and Sale in March and in the description the lot depth was described as 100 feet deep. We have previously developed and sold a property on a small lot and are very aware of the lot coverage zoning. According to the lot depth and size, we had planned on putting an addition on the property because we didn’t have 100 per cent coverage; as we are allowed under the zoning. We realized just before closing that the lot was actually only 93 feet deep thereby reducing our lot size so that we were now at full coverage. Our lawyer has stated that this is a problem, what should we do?
The first thing is that because the lot was described in the contract as 100 feet deep, you can rely upon this description as a matter of contract right up to the day of closing (regardless of any requisition date). Your lawyer should attempt to negotiate an abatement (reduction) in the purchase price to compensate you for the inability of the vendor to deliver what you had contracted for. Your lawyer should be proactive about this problem — even if this is up to the date of closing.
If you find that the vendor is uncooperative, you have the right to tender on the vendor: That you were ready, willing and able to purchase the property but they had not provided the abatement you had requested. This is a horrible situation for both the vendor and the purchaser but a legal necessity if you want to preserve your rights against the other parties.
Let’s hope it doesn’t come to that point.
– Jeffrey D. Cowan is the principal of Cowan & Taylor, Barristers & Solicitors, jeff@cowanandtaylor.com. The information contained in this article should not be relied upon as legal advice.
