20 A U G U S T 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m
sometimes," says Schein, "and that's the
nightmare."
The client must decide whether to
roll the dice or not, and that decision
is likely based on a lawyer's advice. The
challenge for the lawyer is to figure out
if the transgression is serious enough to
justify termination of the transaction
before closing.
The question is if the misrepresentation
will deprive the purchaser substantially of
what they bargained for. A warranty issue,
on the other hand, is related to a quality or
aspect of the home and any related prob-
lems are remediated through negotiation.
The lawyer then needs to decide if the
transgression is serious enough to justify
termination of the contract.
"He [the lawyer] better make the right
call here because, if he's wrong, the conse-
quences can be very serious," says Schein.
"The lawyer has to characterize it some-
how, correctly, in order to arrive at the
appropriate legal consequences."
These issues are more likely to occur
in a rising market when the stakes are
higher. He points to the 1980 recession,
which led to a flood of cases of people
trying to get out of deals, which hap-
pened again about a decade later.
"Just like the market is cyclical, cases
of this nature are cyclical," says Schein.
"If you have turbulence in the real estate
market in either direction, you're going
to find litigation of this nature."
IF YOU HAVE TURBULENCE IN
THE REAL ESTATE MARKET
IN EITHER DIRECTION, YOU'RE
GOING TO FIND LITIGATION OF
THIS NATURE.
IRVIN SCHEIN, Minden Gross LLP
R E A L E S TAT E
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