Can I Walk Away From a Presale If the Unit Is Smaller Than Promised in British Columbia?
This answer covers the law of British Columbia.
Not automatically. Whether a developer can vary the size or layout of a unit mostly depends on your purchase agreement and the disclosure statement, so read any tolerance clause closely and compare it with the plans you were given.
The key question is whether the difference involves a misrepresentation of a material fact, meaning a fact that affects or could reasonably be expected to affect the value, price or use of the unit. A disclosure statement must not contain a misrepresentation. If a developer learns of one, it must promptly file a new statement or an amendment and give copies to affected purchasers.
If you did not receive a required amendment about a material fact reasonably relevant to your decision, you may rescind if no more than one year has passed after title transferred, though an amendment alone gives no right to rescind if you already received a disclosure statement. You may also sue for damages, but not more than 2 years after the misrepresentation first came to your knowledge. A developer's breach can make the agreement unenforceable against you, though exceptions apply. Because deadlines are short, get advice early.
Key takeaways
- A smaller unit does not automatically let you cancel, because much depends on your purchase agreement, any tolerance clause and the disclosure statement.
- A material fact is one that affects, or could reasonably be expected to affect, the value, price or use of the unit.
- If a required amendment about a material fact was never given to you, you may rescind if no more than one year has passed after title transferred, but an amendment alone gives no right to rescind if you already received a disclosure statement.
- A damages claim over a misrepresentation must start within 2 years after it first came to your knowledge, and it is a defence if you knew of it when you received the statement.