When a Hamilton Buyer Went Silent: Tendering a Failed Closing

The situation

Anh and Tuan, both early childhood educators, had owned a single rental property in Hamilton for several years. It was a modest three-bedroom house that had given them steady rental income and, they hoped, a comfortable retirement cushion once they eventually sold. When they decided the time was right, they listed the property and accepted an offer of roughly $525,000 from a buyer named Dante. The agreement of purchase and sale went firm after the standard conditions — financing and a home inspection — were satisfied within the first two weeks. From that point, in the eyes of the law, both sides were bound to close.

For the first several weeks after the deal firmed up, everything proceeded normally. Dante's lawyer requested the usual documents, and Anh and Tuan's real estate lawyer at Treadstone Law prepared the standard closing materials: the statement of adjustments, the transfer, and the discharge statement for the small remaining mortgage on the property. Then, roughly two weeks before the scheduled closing date, communication from the buyer's side went quiet. Emails went unanswered. Phone calls to the buyer's lawyer produced vague reassurances but no confirmation that financing was actually in place.

The legal problem

An agreement of purchase and sale that has gone firm is a binding contract. Once financing and inspection conditions are satisfied, or waived, both the buyer and the seller are legally obligated to complete the transaction on the closing date named in the agreement. A buyer who simply stops responding does not get to walk away without consequence — but a seller who wants to hold that buyer accountable has to follow a precise legal process, and follow it correctly, or risk losing the ability to claim damages later.

The core of that process in Ontario is called tender. On the day set for closing, a seller who is ready, willing, and able to complete the sale must formally present themselves as such — typically through their lawyer delivering the signed transfer, keys, and other closing documents, and demonstrating that everything on the seller's side is in order for the deal to close. If the buyer then fails to close, the seller's tender becomes the evidence that the seller did everything required of them and that the failure to close rests entirely with the buyer. Skip or botch this step, and a seller who later sues for damages can find their claim undermined by an argument that they, too, were not truly ready to close.

The stakes were real. If the sale collapsed and the property had to be relisted, Anh and Tuan risked selling for less in a softer market, paying carrying costs — mortgage interest, property tax, utilities, insurance — for however many weeks or months it took to find a new buyer, and having no clean way to recover any of it from Dante without the paperwork to prove he was the one who breached the contract.

What we did

1. Escalated communication formally and in writing. As soon as the silence became a pattern, our team sent a formal written requisition to the buyer's lawyer confirming the closing date and asking for written confirmation that financing was secured. This created a paper record that the sellers had acted diligently and given the buyer every opportunity to confirm his position before closing day arrived.
2. Prepared to tender regardless of the buyer's silence. Rather than waiting to see whether the buyer would show up, we prepared Anh and Tuan's closing documents exactly as if the deal were proceeding normally: the signed transfer, an up-to-date mortgage discharge statement, keys, and a statement of adjustments. Readiness had to be genuine, not just claimed — the mortgage discharge had to actually be in hand, and the sellers had to be able to deliver clear title on the day.
3. Formally tendered on the closing date. When the closing date arrived and the buyer's lawyer confirmed there was no financing in place, our team completed the tender: presenting the sellers as ready, willing, and able to close, and putting the buyer's lawyer on formal notice that the sellers considered the buyer in breach of the agreement. This step, done correctly and on the record, became the foundation for everything that followed.
4. Terminated the agreement and retained the deposit. Once the buyer failed to close, we sent formal notice terminating the agreement of purchase and sale and confirming that the roughly $26,250 deposit — five percent of the purchase price, held in trust by the listing brokerage — was forfeited to the sellers, as the agreement's standard terms allowed given the buyer's breach.
5. Relisted the property and tracked the resale shortfall. Anh and Tuan relisted quickly rather than waiting, on our advice, since delay would only add to the carrying costs they were absorbing. We kept a running record of everything relevant to a future damages claim: the original agreed price, the eventual resale price, mortgage interest and property tax paid during the gap, and any additional selling costs.
6. Assessed whether to pursue the buyer for the remaining shortfall. Once the resale closed, we calculated the sellers' total loss against what the retained deposit already covered, and gave Anh and Tuan a realistic assessment of what pursuing the buyer further for the balance would likely cost in legal fees and time, against a buyer who showed every sign of having no meaningful assets to collect from.

The outcome

The property sold again roughly ten weeks later for about $498,000 — around $27,000 less than Dante had agreed to pay. Over those ten weeks, Anh and Tuan also carried roughly $9,000 in mortgage interest, property tax, and utilities on a property they had expected to have sold already. Their total loss from the failed closing came to roughly $36,000.

The forfeited deposit of about $26,250 was applied against that loss, leaving a shortfall of roughly $9,750 that was not covered. Because the tender had been done properly and documented at every step, Anh and Tuan were in a strong legal position to pursue Dante in Small Claims Court for the remaining amount. But after reviewing what was known about the buyer's financial circumstances, they decided the cost and time of pursuing a further claim against someone who appeared to have little to collect from was not worth it, and chose to close the file with the deposit as their only recovery.

This was not the clean outcome Anh and Tuan had hoped for when they first accepted Dante's offer. But it was a contained one. Because the tender was done correctly, the deposit forfeiture was never in doubt, and Anh and Tuan absorbed a real but limited loss rather than an open-ended one. Had the sellers not formally tendered — had they simply treated the deal as dead and relisted without going through the process — a buyer's lawyer could later have argued the sellers were never truly ready to close either, putting even the deposit at risk.

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