这两天我们要递送请愿书至安省政府同时附上这封信写给 Minster of public and business service delivery 请求安省政府提供合理楼花标准合同。
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Dear Hon. Kaleed Rasheed, Minister of Public and Business Service Delivery:
While we deliver our petition (https://www.change.org/respect-our-constitutional-rights-and-protect-new-home-purchasers), we are writing to express our concerns with Ontario’s legislations surrounding purchasing pre-constructed houses from large builders. We signed an unconscionable contract with Mattamy Homes Limited and Mattamy (preserve) Limited for a customized house in February 2017, but Mattamy unilaterally changed its design and elevation. Rather than resolving this issue, Mattamy sold the property to another purchaser in December 2018. Mattamy has never made a cross-claim for the past 4 years of litigation. Mattamy illegally seized our deposit of $154,010.
We are appalled that corporate home builders’ rights entirely trump the new homebuyer’s rights in Ontario.
Schedule A of Tarion addendum
The Tarion addendum is a part of the Agreement of Purchase and Sale (APS), but the early termination condition in the section 6 of the Tarion Addendum was not completed. Moreover, we received a copy of the APS 3 business days after we signed the APS, which unfairly stripped our right to early termination conditions with Mattamy. In addition, schedule A of the Tarion addendum only listed types of permitted early termination conditions for Mattamy–not for both parties.
Under Schedule A of the Tarion Addendum, Section 1(a) states that the builder is permitted to terminate the APS if there is a change to the official plan, site plan, plans, elevations and/or specifications under architectural controls imposed by an approving authority. Yet, Schedule A fails to mention the purchaser’s rights and conditions to terminate an APS.
Builders/sellers of new condominiums are required to provide buyers with the right to cancel the purchase agreement within 10 days without penalty, which is in stark contrast to the lack of cooling-off period when purchasing freeholder house. After a homebuyer signs the APS with the completion of early termination condition in section 6 of Tarion addendum, there is no longer a conditional clause that would allow the homebuyer to change his/her mind. In contrast, why does the builder have an additional 5 business days to determine if the builder is satisfied with the early termination conditions provided? The builder can then choose to terminate the APS pursuant to section 6(g)(ii)(iii) of Tarion addendum.
Critical dates on the Tarion Addendum
On the APS, there are 7 critical dates warranting Mattamy to delay the closing. In contrast, purchasers were not permitted to delay the closing – not even to resolve an important dispute. As such, Mattamy noted us in default on the closing date.
Section 15 of the Tarion Addendum
Section 15 of the Tarion Addendum states that if a builder breaches the contract relating to termination of the APS shall be submitted to arbitration in accordance with the Arbitration Act, 1991 (Ontario) and both parties’ legal cost shall be paid by builder. Mattamy refuses to admit that they breached the contract, and then declares that we had breached the terms of the APS. In the event that the homebuilder refuses to admit to breaching the contrast (as in this case with Mattamy) regardless of evidence, this provision assists homebuilders to restrict the homebuyer’s access to rightful justice in public court.
Section 15 of the Tarion Addendum also contradicts Consumer Protection Act, 2002. Section 7(5) of the Consumer Protection Act, 2002 states that the Arbitration Act, 1991 does not apply in respect of any proceeding unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration. The Tarion Addendum should have been enacted as a consumer protection legislation to provide addition rights to homebuyers, but the opposite has been achieved.
Ontario New Home Warranties Plan Act
The Ontario New Home Warranty Plan Act governs issues that arise between builder and owner. The Act provides for statutory warranties and provides for claims that can be made against a fund where it is alleged that a statutory warranty has been breached. In the Ontario New Home Warranties Plan Act, owner is defined as “a person who first acquires a home form its vendor for occupancy, and the person’s successors in title; (“propriétaire”).” We have not acquired the property. We are not the owner of the property at 3237 George Savage Avenue Oakville Ontario, as Mattamy have already sold the property to another purchaser. As such, the Ontario Home Warranty Plan Act does not apply to homebuyers who are in dispute with home builders.
Currently, individual purchasers are not protected under the Consumer Protection Act, 2002 or the Ontario New Home Warranty Plan Act. There are no legislations that protect the interests and rights of individual new homebuyers. Before the title to the home is transferred to the person, the new homebuyers should have their own regulations that govern the issues that arise between the builder and the new homebuyers. Without any acts or legislations to protect individual homebuyers, this oversight unfairly leaves individual purchasers powerless and easily exploited by large multibillion construction companies.
The unconscionable clauses on the contract
An agreement to buy a home is a legally binding contract, but the contract contained exclusionary provisions, mandatory arbitration provision and other unconscionable provisions. On execution, the APS is therefore not legally binding for the builder.
Builders in Ontario include exclusionary clauses in their contracts, such as "Materials, specifications and floorplans are subject to change without notice. All house renderings are artist’s conceptions. All floor plans are approximate dimensions. Actual usable floor space may vary from the stated floor area." This allows the builder to make various unilateral alterations to the property.
The mandatory arbitration clause requires disputes to be resolved by way of private arbitration and allows Mattamy to hide their actions behind anonymity and does not serve the public interest.
These exclusionary clauses should not force homebuyers to buy a different house from what they expected to purchase. The mandatory arbitration clause should not force the homebuyer to private arbitration to solve the dispute.
Standard Contracts
There is a large power imbalance between large multibillion companies and individual purchasers. Although adhesion contracts from large multibillion companies are a common problem, Ontario has not implemented any standard contracts to protect individual purchasers from being exploited. Large billion-dollar corporations, such as Mattamy Homes Limited, have the financial, legal, and human resources to draft unconscionable contracts that solely protect their interest. Individual purchasers do not have the resources and time to research the details of various APS drafted by each builder or company. Even if the homebuyer retains a lawyer to review the APS and provide the early termination conditions in the section 6 of the Tarion Addendum, the builder can terminate the APS without cause in accordance with section 6(g)(ii)(iii) of Tarion addendum.
Conclusion
As new home purchasers, we deserve a legislation system that provides legal protection to new home purchasers and their contracts against unethical corporate home builders. We deserve that Ontario Government to provide a reasonable standard contract to protect both parties’ interest. Otherwise, the homebuyers face the unreasonable highly risk of abuse from corporate home builders when purchasing pre-construction houses in Ontario.