“Dear Mr. Fleming, we are writing to inform you that your 10-foot ceilings are now 9-feet.  We do not believe this constitutes a ‘material change’ as defined under The Act…..”

What exactly IS a material change?

Let’s have a look…

Let’s examine the exact verbiage as taken from an Agreement of Purchase & Sale on a builder’s form.

Everything written in italics is straight from the Agreement.  Everything else is my darling remarks.

Material Change

41.  “The purchaser acknowledges and agrees that the Vendor may, from time to time in its sole discretion, due to site conditions or constraints, or for marketing considerations, or for other legitamate reason, including without limitation any request or requirement of any of the governmental authorities or any request or requirement of the Vendor’s architect or other design consultants:

What is this saying?

Well first they give us reasons/examples of situations whereby they might need to make changes, such as “due to site conditions” or “marketing considerations,” but then they creep into that grey area when they say “or for other legitimate reasons.”

“Legitimate reasons?”  Who decides what is legitimate or not?  The builder, of course!

How about, “I want to make more money by screwing people out of what they originally paid for.”  Is that legitimate?

(i) “change the Property’s municipal address or numbering of the Unit”

This doesn’t seem like that big of a deal, but it can be if you paid for a certain address!

For example, when East Lofts was first being sold, the address was supposed to be 275 King Street.  But the municipality ended up giving them a 138 Princess Street address.  As stupid as this sounds, perhaps a “King Street” address would have been worth more!

If you bought a condo on the corner of Yorkville Avenue and Yonge Street, I think it goes without saying that a Yorkville-address would be worth far, far more than a Yonge-address!  People pay more to say they live on “Yorkville” than on “Yonge.”  And if you purchased a condominium in the pre-construction phase that was supposed to have a Yorkville address, I believe it would constitute a material change if you were given a Yonge street address when the building was completed.

But it doesn’t matter what I think.  It just matters what the crooks at TARION draft and send to us carved in stone.

(ii) “change, vary or modify the plans and specifications pertaining to the Unit or the Condominium, or any portion thereof (including architectural, structural, engineering, landscaping, grading, mechanical, site servicing, and/or other plans and specifications) from the plans and specifications existing at the inception of the project…”

They’re basically saying here that they can change ANYTHING!

The possibilities are endless, so I’ll give some examples.

Architectural – They can change the entire appearance of the exterior of the building.  You may have thought you were getting a sleek glass tower, but they’re going to build it out of mud and sticks instead.

Structural – Your 10-foot ceilings are now 9-foot because it’s better structurally.  Well, not really – you see, they just want to take one-foot of height from each of the eighteen stories and use those eighteen feet to create two new floors!  And if there are 25 units per floor, well that’s 50 new units to sell!

Site Servicing/Engineering – Your original floor plan called for the HVAC system to be tucked away neatly in the corner of the room so you’d hardly notice it.  But instead, it’s going to be against the wall in the middle of the living room so that it neatly divides your living space in two and eliminates your ability to fit the furniture you had planned.

The possibilities are endless…

(ii – continued) “…or existing at the time that the Purchaser has entered into this Agreement, or as same may be illustrated in any sales brochure(s), model(s), in the sales office or otherwise, including without limitation, making any change to the total number of dwelling, parking, bicycle/storage and/or other ancillary units intended to be created within the Condominium, and/or any change to the total number of levels or floors within the Condominium, as well as any changes or alterations to the design, style, size, and or configuration of any dwelling or other ancillary units within the condominium.”

Now they’re really spelling it out!

The words “without limitation” should scare you.  It’s like saying, “Here are a few examples, however don’t fool yourself into thinking we won’t change a million other things as well.”

And when they reference the “number of floors,” think about what they could do.

Imagine you’re a season-ticket holder for the Toronto Raptors.  Don’t ask me if this is a true story that ended up in the courts, because it should be obvious.  Imagine you have seats in “Row One” and you pay a premium for those seats.  Now, imagine some genius in the marketing department decides to add “Row A” and “Row B” and seat them in front of “Row One.”

How would you feel if you had seats in “Row One,” but it was effectively now row three?

Yeah, I can see how that would end up in the courts.  Too bad the tickets didn’t say “In the very first row on the floor, regardless of seat title” instead of just “Row One.”

Imagine you bought a condo on “Level 17” of a 17-storey building, thinking you were getting the Penthouse.  Now imagine that the developer sends you a kind notice saying that they’re adding six levels to top out the condo at 23-stories.

Clause (ii) basically says that the developer can change just about anything.

(iii) “change, vary, or modify the number, size and location of any windows, columns and/or bulkheads within or adjacent to the Unit, from the number, size and/or location of same as displayed or illustrated in any sales brochures, models, or floor plans previously delivered or shown to the Purchaser, including the insertion or placement of any windows, columns, or bulkheads in one or more locations within the Unit, (regardless of the impact thereof), as well as the removal of same.”

This is a big one!

They’re saying that they can change any window, column, or bulkhead in your unit.

They can move it, eliminate it, or add it.

If your floor plan didn’t show any pillars or columns, well guess what?  Now you have SIX!  I hope Christmas lights are on sale, because you’re gonna have to dress those pillars all year long to hide their ugly gaze!

Remember that floor-to-ceiling window in your master bedroom that was twelve feet wide?  Well now you have a small, two-foot window instead.

And you know how you bought on the sixth floor of the “L-shaped” tower because your unit was at the top of the podium and thus it had zero bulkheads?  Yeah, well they changed that.  You now have bulkheads, thereby reducing your ceiling height by a foot.  But they could have just detailed this in section (ii).

Finally, just to rub salt in the wound, they say “Regardless of the impact thereof,” meaning you and your feelings can go jump off a cliff.

(iii – continued) “and that the Purchaser shall have absolutely no claim or cause of action whatsoever against the Vendor or its sales representatives (whether based or founded in contract, tort, or in equity) for any such changes, deletions, alterations, or modifications, nor shall the Purchaser be entitled to any abatement or reduction in the Purchase Price whatsoever as a consequence thereof.”

This finishes the section on Material Change.

It’s a doozie!

Clearly drafted by a team of legal experts (“founded in contract, tort, or in equity”) these contracts are iron-clad.

There is nothing you can do, and you’re wasting your time if you try.

Builders can change MAJOR features of your condo, but they aren’t considered “material” because of the contract you signed.

I suppose if you paid for a 700 square foot condo and they gave you a 500 square foot condo instead, you’d probably have the basis for a claim.  But I’m sure that even though you are 100% in the right, it would take you years and years to sort it out in court.

So how can I conclude this post?

Should I say, “Don’t ever buy pre-construction,” or perhaps, “I have stopped selling pre-construction altogether”?

Nah.

Instead, I say, “Have a swell day!” 😀