Vaughan condo buyers take developer to court over cancelled project

Thestar.com
September 10, 2018
Tess Kalinowski

Buyers in a cancelled Vaughan condo project are asking a court to declare their contracts void so they can sue the developer for the appreciation they lost in the two years between when they bought the pre-construction units and when their deposits were returned.

The unusual legal application, filed Aug. 30 on behalf of 451 buyers of Liberty Development’s Cosmos condos, argues that the sales contracts went beyond what’s allowed by Ontario’s building regulator, Tarion, in pre-construction agreements.

A class-action lawsuit can take years to work through the courts, said the buyers’ lawyer Ted Charney. But this legal application will likely be heard within four months, he said, because it is going through the Ontario Superior Court of Justice Commercial List, a specialized court that handles business matters.

If the application succeeds, Charney says it will put developers on notice that they must stay within those contract rules, even in the kind of heated real estate environment that the Toronto area experienced when the Cosmos units went on the market.

The court action comes amid calls for greater consumer protection for home buyers who face having their deposits tied up for years, only to have the money returned after the cost of similar homes has increased.

Liberty Developments sold Cosmos units in the spring of 2016, when the average price of a highrise condo in the GTA hit about $461,000 in April. When Liberty cancelled the project this past April, that average price had soared to almost $740,000, according to the Building and Land Development Association.

Liberty Development is named on the court application, along with three numbered companies that share the same Markham address. The companies have 45 days to respond to the application. Liberty did not respond to the Star’s repeated requests for comment through its media spokesperson.

Eleven projects with 3,992 units have been cancelled since the beginning of 2017, according to Urbanation, a market research company.

Cosmos buyers signed “take-it-or-leave-it” contracts that gave the vendor, one of the numbered companies, “sole, absolute and unfettered discretion,” to cancel the project if it found the financing terms unacceptable, said Charney.

He compared it to someone making an offer on a house conditional on mortgage financing. “Then if (the buyer) want(s) to drop the deal all they have to do is say, ‘I didn't like the mortgage rates or I couldn't get the mortgage I wanted, see you later,’” he said.

Charney is among those who say developers should have a limited period -- 90 or 120 days -- in which to cancel projects. If they exceed that time limit, he says, they should have to pay buyers the difference in the property’s value.

Liberty has said that it cancelled the project “solely due to the inability to secure satisfactory construction financing.”

It told buyers that the decision was made by vendors. The court application says those vendors are among the numbered companies named on the court application. Darvish Fereydoon is the director and the president of all the companies named on the buyers’ court application.

In April, the company’s spokesperson Danny Roth of Brandon Communications called the Cosmos cancellation an “isolated” event.

The court application notes that Liberty is now planning a new condo project adjacent to the Cosmos site at Vaughan Metropolitan Centre and it is redeveloping the Promenade Mall near Bathurst St. and Clarke Ave. in Vaughan with 1,006 condos in three towers, a hotel and commercial space.

Liberty Development has filed a $1 million defamation suit against Charney, claiming he published “false and defamatory words” about the company on a website designed “to entice hundreds of purchasers to sue Liberty with a false statement as to Liberty’s involvement in the cancellation of the Cosmos condos project.”

Real estate lawyer Bob Aaron, who writes a column for the Star, agrees with Charney that there should be a finite period in which developers can cancel sold projects. The problem is that developers have to pre-sell condos to finance the projects. To change the system there would need to be a period in which sales and financing could be arranged at the same time, he said.

Even though many condos sell to investors who never plan to live in them, the government owes all buyers greater protection.

“Right now there's a loophole in the legislation which allows builders on the flimsiest of excuses to terminate deals when the values of properties have gone up. That does not protect consumers in a rising market,” said Aaron.

Buyers pick up the pieces after condo cancellation

The price, the parking and the proximity to a new subway station at the Vaughan Metropolitan Centre helped the Cosmos condo development sell out in the spring of 2016.

When Liberty Development cancelled the project in April, some purchasers bought other homes. But some say they have been pushed off the property ladder in a tough GTA housing market where their refunded deposit checks simply don’t buy much two years later.

Jay Reddy bought his Cosmos unit as an investment. He planned it as a retirement place for his mom, 70, and dad, 76, who had planned to sell their house.

“For them to live in a four-bedroom house in Vaughan and keep up with everything outside and inside, it was just becoming too much,” Reddy said.

But now, they’re staying.

“They’ll probably just wait and see if it’s worth it to relocate to somewhere in Vaughan condo-wise. My guess is they’ll probably just have to stay there for now,” he said.

“A lot of these condos in Vaughan are just skyrocketing in price. Cosmos was offering parking, the location was better as opposed to further up Jane north of Hwy 7. When we went to the open house, we felt comfortable with what was being offered,” said Reddy, 41.

“Four people that I know of either bought a townhouse or a condo. A lot of them had to go to Etobicoke. A lot of them couldn't stay in Vaughan.”

Reddy is one of a group known as the Cosmos 8 that maintains a Facebook page and helped organize a court application by 451 buyers against Liberty Development.

Their lawyer says there were investors among the 1,100 buyers of the cancelled development, but the 451 purchasers he represents are not offshore high rollers. “For most, it was going to be their major rental property or it was going to be their home,” Ted Charney said.

Here’s where the Cosmos cancellation has left some other buyers.

***

It should have been an evening of joyful anticipation when Julia Notarfonzo arrived at her parents’ Woodbridge home on April 6, the night before her wedding. Instead, the bride noticed that her dad appeared anxious.

She assumed it was the wedding plans until her father handed her a letter from Liberty Development. It informed her that the $465,000, two-bedroom, two-bath condo she and fiancé Luca Loiacono had purchased was cancelled.

She called Loiacono on the verge of tears.

“The night before your wedding you're just thinking, ‘OK, we have our life set up, we're going to get married, we're going to move into our place, everything's going to be great.’ And then it's just like, where do we go?” said Notarfonzo.

It wasn’t her first disappointment with a pre-construction home. Before buying at Cosmos, she had invested in another project that was rezoned, adding $70,000 to the price, so she walked away. When her relationship with Loiacono became serious, the pair decided to buy jointly in 2016. They were living together in a rental and expected to get married and move into their condo. The Cosmos location allowed them to maintain only one car, which Notarfonzo would use for her teaching job while Loiacono could take the subway to work in a downtown bank.

“I had already invested when I was 23 years old. It didn’t work out,” said Notarfonzo, 26. “I worked so hard for that money, extra jobs, tutoring, working at a grocery store. I got screwed twice pretty much.”

After buying their condo in the spring of 2016, “we watched the whole GTA housing market boom at a crazy pace,” said Loiacono.

The couple have since purchased a 17-year-old stacked condo townhouse in North York for $665,000.

“It is a happy ending, except I paid $200,000 more,” said Loiacono, who says he would never again buy a pre-construction home.

“Other people are back to square one and a $70,000 deposit might not be able to get them something they want anymore.”

***

Ina Cici was living with her parents when she bought a 638-square-foot, one-bedroom-plus-den Cosmos unit at the end of her first year as a full-time teacher.

As soon as she signed the contract, she took on extra tutoring work to pay back the deposit money she had to borrow from family.

Two years later, when she got the Cosmos cancellation letter, Cici, 26, thought she was the victim of a scam.

“All along, I thought everything was OK. I couldn't believe it,” she said. “Because the market had changed so much in two years, I felt ripped off. I felt I was being played with. They were keeping my money until the real estate market went higher and higher.”

Now Cici sees herself remaining in her parents home and potentially having to move out of the Toronto area if she wants to own her own place.

She continues to search. Recently, she looked at a Toronto condo plan. The only comparable unit in terms of price was $397,000 for 380 sq. ft., she said. Unlike the Cosmos apartment, this one had no parking. Cici says tighter mortgage rules are also making it tougher to buy.

“I honestly feel like nothing that is affordable is livable anymore -- 380 sq. ft. is a box,” she said. “I could pay for it, but it’s just not livable. It doesn't excite me at all.”

Cici figures that she would need a family member or co-purchaser to afford something comfortable in the Toronto area.

“I don’t think one person alone can afford a house anymore, and it sucks.”

***

Santino Paglia bought his Cosmos unit on his own. Now, he and his fiancée are looking for a place to purchase together while he continues to live with his parents in Bolton.

“Unfortunately, all the places have gone up in price,” he said. They have been checking out new developments in Etobicoke.

The summer has given him time to reflect on the Cosmos cancellation, said the 33-year-old teacher.

“Being able to sit back, I realize how much damage it’s done,” he said. “We bought that place for $280,000, which was a pretty good price in 2016. In those two years, prices have gone up 30 per cent. Now we've got to put down a bigger deposit. Now we're going to be paying $300 or $400 more a month on the mortgage.”

He’s also noticed that the 600-square-foot, one-bedroom unit he bought in Cosmos for $280,000 looks different in other developments.

Now, he says, buildings are configuring two bedrooms into the same space, and “you’re paying $200,000 more at least.”

“I'm angry. I think we’re all angry about what happened and how it happened,” Paglia said.

He thinks the bad publicity and court action around the Cosmos cancellation will make developers a little more cautious about cancelling projects.

But despite his bad experience, “Honestly I think I would still buy pre-construction,” he said.

“More than likely to get something affordable you'll have to get into something pre-construction.”

***

Carla Gravina bought a pre-construction bungalow loft in Tottenham in 2015. She sold her house in Vaughan and planned to make the August 2016 move to the town south of Barrie her last.

But when her nephew asked her to accompany him to the third tower release of Cosmos condos in September 2016, Gravina went along.

She loved the location and the building’s amenities, and decided to buy with an eye to getting a good price on the Tottenham place when the Vaughan condo was ready for occupancy around 2020, where it would be a base from which she could fly south in the winter when she retires.

When Cosmos was cancelled, she said it felt “like the blood moved from the top of my head to the bottom of my feet.”

“The hope was to move back into the GTA without having to spend $2 million on a tiny home,” said Gravina. “I refuse to buy a 500-square-foot something for $600,000. I can’t fathom that.”

Gravina knows that living in a house mortgage free puts her a better position than some first-time home buyers in Cosmos, who have been “devastated.”

But living in Tottenham isn’t her dream. She finds it a gruelling 90-minute rush hour commute to her office near Victoria Park Ave. and Sheppard Ave. E.

“During the winter months, before I leave my home, I have to plan for weather. I have an overnight bag in my car at all times so that if the weather is bad, I will not travel north on the 400 highway and just stay where I am for the night. Because I have two dogs, I also need to plan for them -- take them with me or figure out how to get them looked after if I’m stuck in Toronto,” she said.

Her company allows her to work from home four days a week so she only has to do the drive once but, she said, “I’m basically in a house by myself and working on the telephone.”

That Vaughan is allowing Liberty to build adjacent to the Cosmos site, is galling, she said.

“I get that the city wants to grow, but at what cost?”