(905) 441 0770 allen@allenehlert.com

The Consequences of Walking Away

by | July 16, 2025

Trees don’t grow to the sky; and neither do real estate prices. Sometimes, real estate prices go down. This can be particularly troubling when it comes to new construction. There is a time lag between when the home is ‘purchased’ and when the home is completed and the deal can ‘close’. During this lag time, substantial changes can occur in the real estate market that causes home prices to fall; sometimes meaningfully. When that happens, does it make sense for a new home buyer to close the deal, or should you walk away?

If you decide to walk away from a pre-construction property purchase agreement, especially in Ontario, you could face several significant legal consequences. Let me provide a professional overview of the potential risks involved.

Consequences of Walking Away

Protecting Yourself: Steps to Consider

Simplified Scenario

Calculating the Break even Point

Calculating the Break-even Appraisal Value

Interpretation of Scenario Results

Real Life Considerations

Scenario Analysis

Consequences of Walking Away

When considering the purchase of a pre-construction property, buyers often underestimate the consequences associated with failing to complete the transaction. While circumstances may vary, the decision to walk away from a pre-construction contract carries serious financial, legal, and personal repercussions. From the immediate forfeiture of your initial deposit, which typically ranges from 5% to 20% of the property’s value, to the potential for significant legal actions brought by the developer to recover additional damages, the stakes are substantial.

Moreover, unresolved disputes can escalate into court judgments leading to asset seizure or wage garnishment, severely damaging your credit profile and future financial opportunities. Beyond the tangible impacts, the legal proceedings and uncertainty can profoundly affect your emotional and mental well-being, emphasizing the importance of fully understanding these risks before deciding to abandon a pre-construction agreement.

  • Loss of Deposit
  • Legal Action for Damages
  • Court Judgments and Credit Implications
  • Legal and Emotional Stress

Loss of Deposit

The most immediate and common consequence of walking away is losing the deposit already paid to the developer. Typically, pre-construction deposits can range from 5% to 20% of the property’s total purchase price. Unless the agreement specifically allows for the return of your deposit under certain conditions (rarely the case), the developer generally retains this money as compensation for your breach of contract.

Legal Action for Damages

Beyond just losing your deposit, developers often reserve the right to pursue legal action to recover additional losses. This might include:

  • Market Damages:
    If the developer resells the unit for less than your original contracted price, they can sue you for the difference between your agreed-upon price and the lower resale price.
  • Holding Costs and Interest:
    Developers can also claim for costs incurred due to delays in closing, such as extra financing costs, property taxes, insurance, maintenance fees, and legal fees.
  • Administrative and Legal Fees:
    Often, legal fees and administrative expenses associated with pursuing litigation against a buyer are also claimed, potentially adding substantial costs.

Court Judgments and Credit Implications

If the developer obtains a judgment against you for these damages:

  • Asset Seizure or Wage Garnishment:
    Court judgments can allow developers to seize assets or garnish wages to recover the owed amount.
  • Negative Credit Impact:
    A court judgment becomes part of the public record and can severely impact your credit rating, complicating future financial decisions, including securing loans or mortgages.

Legal and Emotional Stress

Walking away and entering litigation isn’t just financially costly; it can also impose considerable stress, disrupting your financial and emotional wellbeing.

Protecting Yourself: Steps to Consider

If you’re contemplating walking away from a contract, it’s prudent to first:

  • Consult a Real Estate Lawyer:
    They will review your purchase agreement and advise on your exact liabilities and potential defenses.
  • Explore Negotiation with the Developer:
    Many developers prefer to negotiate rather than pursue lengthy and costly litigation. Solutions might include delayed closings, adjusted pricing, or other financial arrangements.
  • Assess Your Finances Clearly:
    Before making any decision, clearly understand your finances to ensure walking away is indeed the better long-term option compared to potentially holding an underwater mortgage.

Simplified Scenario

Before I begin, please understand that everyone’s situation is different and ultimately the answer after considering all the variables is, ‘it depends’.

Let’s assume someone bought a pre-construction for 1 million with 20% down. How much would the new appraised price have to be below the agreed purchase price before it makes sense to consider walking away given that there could be legal fees and other costs for walking away. Now there are other variables to consider, but this is a simplified, broad-strokes way to approach this conundrum.

Since this is a critical financial calculation, so let me clearly outline the logic step-by-step.

Simplified Scenario Overview:

  • Original Purchase Price: $1,000,000
  • Deposit (Down Payment): 20% = $200,000
  • Planned Mortgage at Closing: 80% = $800,000

If, at closing, the market appraisal value falls, buyers face a shortfall they must cover out-of-pocket, on top of the 20% they’ve already paid.

Calculating the Break-even Point

To determine when it makes financial sense to walk away, you need to compare:

A) The amount you’d lose by walking away

versus

B) The extra funds you’d need to close the deal at the lower appraisal value.

Step 1: Costs of Walking Away

If you walk away, your costs typically include:

  • Loss of Deposit: $200,000
  • Potential Additional Legal Fees and Damages:
    Let’s assume a reasonable potential additional cost range (including legal fees, damages, and market losses by the developer) between $50,000 and $100,000.

Total Estimated Cost to Walk Away:

  • Low-end: $200,000 (deposit) + $50,000 (fees/damages) = $250,000
  • High-end: $200,000 + $100,000 = $300,000

Step 2: Cost of Closing at Lower Appraisal

If you proceed with closing, the bank lends based on the new appraised price (usually at an 80% Loan-to-Value ratio):

  • If appraisal is below $1,000,000, the bank covers only 80% of this lower appraisal value.
  • The buyer must cover the difference between original purchase price and mortgage amount out-of-pocket, on top of the initial $200,000 deposit already paid.

Mathematically, this looks like:

Required Additional Funds = $1,000,000 – (New Appraisal × 80%) – Original Deposit ($200,000)

Set this equal to the cost of walking away to find the break-even point.

Calculating the Break-even Appraisal Value

Let’s calculate both scenarios (low-end $250,000 and high-end $300,000):

Low End Scenario (Total Cost $250,000):

$1,000,000−(0.80 × New Appraisal) − $200,000 = $250,000

Simplify:

$800,000 − 0.80 × New Appraisal = $250,000

Solve for Appraisal:

0.80 × New Appraisal = $800,000 − $250,0000

.80 x New Appraisal = $800,000 – $250,0000

0.80 × New Appraisal = $550,0000

New Appraisal = $550,0000 / .80 = $687,500

High End Scenario (Total Cost $300,000):

$1,000,000−(0.80 × New Appraisal) − $200,000 = $300,000

Simplify:

$800,000 − 0.80 × New Appraisal = $300,000

Solve for Appraisal:

0.80 × New Appraisal = $800,000 − $300,0000

.80 x New Appraisal = $500,000

0.80 × New Appraisal = $500,0000

New Appraisal = $500,0000 / .80 = $625,000

Interpretation of Scenario Results

At the lower estimate of costs ($250,000 total):

If your appraisal falls below approximately $687,500, it financially makes sense to seriously consider walking away.

At the higher estimate of costs ($300,000 total):

If your appraisal falls below approximately $625,000, walking away becomes financially rational.

Real-Life Considerations

While the numbers provide clear thresholds, also consider:

  • Credit Impacts:
    Potential long-term impacts on your credit rating and future borrowing capability.
  • Legal Stress:
    Emotional and logistical burden of legal proceedings.
  • Market Expectations:
    Assess whether the market may recover over a reasonable holding period.
  • Negotiation Potential:
    Often, developers prefer to negotiate rather than litigate. A negotiated settlement could significantly reduce your losses.

Scenario Analysis

From a purely numerical standpoint, once the property’s appraised value falls into the mid-to-low $600,000s, you’re reaching a tipping point where walking away could become financially preferable, especially if additional legal costs are moderate to high.

However, due to the complexities involved, you should always:

  • Seek professional legal and mortgage advice
  • Attempt negotiation with the developer for an amicable resolution before walking away
  • Clearly evaluate your financial and emotional tolerance for risk and stress

These calculations equip you with clarity to discuss next steps confidently with trusted advisors.

My Conclusion

Walking away from a pre-construction property purchase is not a decision to take lightly. It can result in significant financial loss, legal actions, credit damage, and substantial emotional stress. However, in some cases, accepting those immediate consequences might still be preferable to the long-term financial risk of accepting a substantially overpriced asset.

Ultimately, your best defense is informed decision-making. Always consult professional legal and mortgage advice to guide you toward the best solution for your situation.

Mortgage and Money Radio Logo
Allen Ehlert

Allen Ehlert

Allen Ehlert is a licensed mortgage agent. He has four university degrees, including two Masters degrees, and specializes in real estate finance, development, and investing. Allen Ehlert has decades of independent consulting experience for companies and governments, including the Ontario Real Estate Association, Deloitte, City of Toronto, Enbridge, and the Ministry of Finance.

Temporary Worker Mortgage Application

Temporary Worker Mortgage Application

Temporary workers in Canada—those employed on a fixed-term contract, through an agency, or seasonally—often face additional challenges when applying for a mortgage. Because lenders prefer stable, long-term employment, temporary workers are seen as higher-risk...
What is a Second Mortgage?

What is a Second Mortgage?

A second mortgage is a loan that is secured against a property that already has an existing mortgage. It is considered "second" because it is subordinate to the first mortgage in terms of priority—meaning that if the homeowner defaults, the first mortgage lender gets...
Housing Supply

10 Factors Impacting Housing Supply

A complex interplay of various factors affects the supply of housing in Ontario. These factors can affect the availability, type, and affordability of housing in the province. Here are ten key factors impacting the supply of housing in Ontario: 1. Land Availability...
Getting a Second Mortgage

Getting a Second Mortgage

If you have a first mortgage, can you just go out and get a second mortgage? The short answer is not always. While it is possible to obtain a second mortgage if you already have a first mortgage, several factors must align for you to qualify. You cannot simply go and...
Non Conforming Apartment

Non-Conforming Apartment Income

As a mortgage agent who underwrites mortgages, I’ve come across countless applications where homeowners and investors alike want to leverage rental income from basement suites or converted spaces to boost their borrowing power. It's a smart move in theory, but the...
Affordable Housing

Ontario’s 10 Most Affordable Cities

Affordability remains a cornerstone of housing decisions, often outweighing even employment factors when individuals and families consider relocating. In Ontario, a diverse province with a wide range of urban and rural settings, certain cities stand out for their...
Toronto Traffic

10 Shortest Ontario Commute Cities

A short commute to work really improves the quality of your life. Workers don't push for remote work if they can live in a community where the commute is short and pleasant. However, if your employer is in a major city, or worse yet, Toronto, and the demand is for you...
Understanding Subordination Agreement

Understanding Subordination Agreements

A subordination agreement is a legal document that modifies the lien priority of two or more mortgages on a property. In the context of first and second position mortgages, this agreement allows a lender with a lower-ranking mortgage (such as a second mortgage or a...
Break Your Mortgage

How to Break A Mortgage

Breaking a mortgage in Ontario, Canada, before the end of its term can lead to significant penalties. It's important to understand these penalties and how they are calculated. Here are the key points to consider: Types of Penalties Interest Rate Differential (IRD)...
Lock In Your Rate

How to Lock in a Good Rate

Locking in a good mortgage rate is a key step in the home-buying process, especially in a fluctuating interest rate environment. Here are steps and strategies to help you secure a favourable rate: Understand Rate Locks Monitor Interest Rates Improve Your Credit Score...