Condo buyers hoping to build a case to avoid financial fallout at long-delayed Kitchener tower

Some buyers who have gone into default over condo purchases in Kitchener, Ont. may be able to pursue a legal option. CTV’s Jeff Pickel explains.

A long-delayed condo tower project in Kitchener, Ont. is technically ready for occupancy, and while the developer is calling their ability meet a crucial deadline a triumph, some buyers don’t feel the same way.

The development at 1333 Weber Street East has a tumultuous history. It was originally known as Elevate Condos when construction started in 2020, but the builder soon ran into problems.

A release from Dorr Capital Corporation showed the project experienced cost overruns and the original builder eventually faced bankruptcy.

The future of the four-tower project was murky until Dorr Capital Corporation, Gentai Corporation and ELM Developments stepped in, bought the development for $75 million and began work to finish the build.

“There’s a lot of pride to be able to accomplish what we did,” Elliot Steiner, president of ELM Development, told CTV News. “Everybody came out a winner and we did it all in record time. The city got exactly the project they were promised.”

The new developers were facing a deadline of Sept. 19, 2025 to have the first tower ready for occupancy. It meant the developer either had to meet a bare minimum standard of completion on the units or buyers would be able to terminate their contracts.

The developer was able to meet that deadline, but now people who bought homes in the tower tell CTV News they believe the project was rushed to meet the deadline.

Some buyers also believed when the project changed hands, they would be able to terminate their contracts and get their deposits back without a penalty, however, that was not the case.

Now, several buyers have gone into default, and they said ELM Developments is refusing to reinstate their contracts.

According to ELM Developments, they are under no obligation to reinstate a buyer, who they claim is trying to change the terms of the deal.

“We honored the terms of the Agreement of Purchase and Sale (APS). Purchasers who chose not to, did so at their own peril. We are under no obligation to reinstate. Purchasers who claimed entitlement to reinstatement complete with their own terms and timelines, were respectfully declined.” Steiner said.

Buyers are also raising concerns with when they learned the project had met the occupancy deadline.

“They were on the last minute,” Ajay Louis, a buyer who is now in default, said. “They sent an email to my lawyer at 4:30 p.m. that we did get occupancy. My lawyer’s office was closed at that time.”

Louis said his lawyer’s office was notified he was in default of his agreement on Sept. 19. Despite finding an issue with the statement of adjustments, Louis said he and his lawyer were ready to move forward and close the deal.

“We tried on the following Monday when my lawyer’s office was open,” he said. “They have explicitly told my lawyer that they will not let me back into the agreement of parts of sale.”

Experts told CTV News the owner of the building could stand to profit from refusing to reinstate the deals.

“The builder is incentivised by having the buyer terminate their agreement because in that case, it allows the builder to keep the deposit,” Slonee Malhotra, a partner in real estate law and condo development at Sorbara Law in Waterloo, Ont. explained.

Malhotra said on top of keeping the $70,000 deposit, the developer could also sue for damages.

For example, if the condo was originally purchased for $500,000 and resold by the developer for $400,000, the developer could sue the original purchaser for the difference.

But Malhotra said buyers still have some legal recourse available to them.

“There is a concept in litigation called relief of forfeiture. It allows a buyer who is in technical breach of an agreement to make an application to the judge to walk away without a penalty, or to walk away with a reduced penalty,” Malhotra said.

But she said a judge must determine if the buyer or the builder is out of line.

“Acting ‘unconscionably’ would be acting in bad faith, acting outside of what a reasonable person’s expectations would be. Acting in a way that is unfair,” she explained.

As Louis faces an uncertain financial future, he believes stories like his could scare people away from buying pre-construction homes.

“We’re young Canadians trying to get into the real estate market,” he said. “If this is the state of the real estate market, I don’t know why young Canadians would go forward with purchasing pre-construction.”