A real estate litigation lawyer can challenge a presale purchase you cannot complete by relying on the Real Estate Development Marketing Act (“REDMA” or the “Act”). Under REDMA section 23, a developer’s breach of the Act can make the contract unenforceable against you and support the return of your deposit.
Presale buyers sign years before completion, and circumstances change. Financing tightens, an appraisal comes in low, or the market value drops below the contract price, and the buyer who cannot complete the purchase faces a demand for the full balance plus a claim for any resale shortfall. That pressure is real, and it is not the whole story. In Ye v. Vesta Properties (Latimer) Ltd., 2025 BCSC 773, the Supreme Court of British Columbia voided presale contracts worth $7,699,400 against six buyers and ordered their deposits returned. This guide explains the scenario, the REDMA mechanism behind that result, and what a real estate litigation lawyer examines before deciding whether a developer can force you to complete.
When You Cannot Complete a Presale Purchase
Cannot complete a presale purchase means you are unable to produce the balance owing on the completion date, usually because financing fell through, the appraisal came in low, or the market value dropped below the contract price. A developer can then forfeit your deposit and sue for the shortfall.
This is the failure point that turns a presale into litigation. When a buyer cannot close the transaction, the standard developer response is to keep the deposit, resell the unit, and pursue the buyer for the difference between the original contract price and the lower resale price, along with carrying costs. On a high-value unit that exposure runs into hundreds of thousands of dollars, and across a group of buyers it can reach the millions. Many buyers assume the only choices are to find the money, complete at a loss, or walk away and absorb the claim. There is a third path that the developer will not raise. Before any of those outcomes is accepted, the presale contract, the disclosure statement, and the developer’s conduct can be measured against REDMA, because a developer that broke the Act may not be able to enforce the agreement at all.
How REDMA Section 23 Makes a Presale Contract Unenforceable
REDMA section 23 states that a presale purchase agreement is not enforceable against the purchaser by a developer who has breached any provision of Part 2 of the Act. A disclosure or marketing failure can therefore block a developer from forcing a buyer to complete.
Part 2 of REDMA sets out the developer’s core duties, and section 23 ties enforceability of the contract to compliance with them. Those duties include filing and providing a proper disclosure statement under sections 14 to 16, plainly disclosing all material facts without misrepresentation, handling deposits in trust under section 18, and meeting the marketing requirements of the Act. When a developer breaches one of these provisions, section 23(1) makes the purchase agreement unenforceable against the buyer. This is a different door from the seven day rescission right in section 21. Section 21 is a short statutory window to unwind the deal soon after signing, while section 23 is a defence that turns on the developer’s non-compliance and can apply long after the seven days have passed. Section 23(2) preserves enforceability in narrow cases, such as an innocent misrepresentation the developer corrected by a timely amendment, which is why the analysis depends on the documents. The full provision appears in the Real Estate Development Marketing Act.
What a Real Estate Litigation Lawyer Examines
A real estate litigation lawyer reviews the disclosure statement, every amendment, the marketing materials, and the completion terms against REDMA, searching for a Part 2 breach that makes the contract unenforceable or supports a damages claim under section 22.
The work is documentary and precise. A real estate litigation lawyer reads the presale contract clause by clause and compares it against what REDMA required the developer to disclose and do. Completion date transparency receives close attention, because a developer that presented misleading or non-compliant estimates of when construction would finish may have breached its disclosure obligations. The lawyer checks whether every material fact that affects the value, price, or use of the unit was disclosed, whether amendments were filed and delivered when the project changed, and whether the deposit was held in trust as section 18 demands. Where the disclosure statement contained a misrepresentation, section 22 gives the buyer a separate right of action for damages, with the buyer deemed to have relied on it. Each finding either strengthens a defence to the developer’s completion demand or builds an affirmative claim — as the firm demonstrated in another successful presale cancellation.
Recovering Your Deposit Through the Court
On a successful challenge, the Supreme Court of British Columbia can declare the presale contracts unenforceable and order the developer to return the deposits. REDMA section 18 requires deposits to be held in trust, which keeps the funds available to be returned to the buyer.
Deposit recovery is the outcome that matters most to a buyer who could not complete, and the statute is built to protect those funds. Section 18 requires a developer to place each deposit with a brokerage, lawyer, or notary who holds it as trustee in a trust account at a British Columbia savings institution, not as the developer’s money. Because the deposit sits in trust rather than in the developer’s hands, a court that finds the contracts unenforceable can order it returned to the buyer. These disputes are resolved in the Supreme Court of British Columbia, where a buyer can seek a declaration that the agreement cannot be enforced and an order returning the deposit. The same finding that frees a buyer from a completion they cannot fund is often the finding that brings the deposit back.
Case Study: $7.7 Million in Presale Contracts Voided
In Ye v. Vesta Properties (Latimer) Ltd., 2025 BCSC 773, our lawyer at ATAC LAW persuaded the Supreme Court of British Columbia to void presale contracts worth $7,699,400 against six buyers under REDMA section 23 and to order their deposits returned.
The April 25, 2025 decision involved six individual buyers whose presale contracts would have required them to produce a combined $7,699,400 to complete at a time when that sum was significantly onerous. The contracts contained onerous terms that shifted substantial risk onto the buyers, and on their circumstances completing was not realistic. Rather than treat the demand as final, our lawyer at ATAC LAW analyzed the contracts and the developer’s conduct against REDMA and contract law, then argued that the buyers were entitled to rely on section 23 to render every contract unenforceable against them. The court agreed, declared the contracts unenforceable, and ordered the deposits returned, saving the clients the full $7,699,400. The judgment holds developers to their transparency obligations, particularly around the completion of construction, and you can read the firm’s account of this court victory protecting presale buyers. It stands as a precedent for buyers told that a presale contract leaves them no way out.
Frequently Asked Questions
Can a real estate litigation lawyer get me out of a presale I cannot complete?
Possibly, where the developer breached REDMA. A real estate litigation lawyer reviews the disclosure statement, amendments, and marketing against the Act, and if the developer breached Part 2, section 23 can make the contract unenforceable against you. In Ye v. Vesta Properties (Latimer) Ltd., 2025 BCSC 773, that argument voided $7,699,400 in contracts for six buyers.
What is REDMA section 23?
Section 23 of the Real Estate Development Marketing Act provides that a presale purchase agreement is not enforceable against the purchaser by a developer who has breached any provision of Part 2 of the Act, subject to narrow exceptions in section 23(2). Part 2 covers disclosure statements, deposit handling, and marketing requirements.
Will I get my deposit back if the contract is voided?
A court that declares the contracts unenforceable can order the deposit returned. REDMA section 18 requires the deposit to be held in trust by a brokerage, lawyer, or notary, not by the developer, which keeps the funds available to be returned. In Ye v. Vesta, the court ordered the deposits returned to the six buyers.
How is section 23 different from the seven day rescission right?
Section 21 gives a buyer a short window to rescind by serving written notice on the developer within seven days after the later of the contract date and the disclosure acknowledgment. Section 23 is different: it is a defence that makes the contract unenforceable where the developer breached Part 2, and it can apply long after the seven day window has closed.
