Sharon Brown

What’s Up (With the) Dock? #479

Legally Speaking

By Jennifer CleeB.A. LL.B. Waterfront properties with private docks are looking attractive at this time of the year, particularly with the weather we’ve been enjoying this summer. Licensees involved in the sale of such properties need to be aware of, and inform their clients of, the possibility that any dock or other structures built upon

Environmental Liability #478

Legally Speaking

In Dolinsky v. Wingfield, oil from a leaky underground tank contaminated the property next door.1 When the affected property’s owner sued to recover clean-up costs, the court held several current and former owners of the source property liable. In this case, the properties were adjacent, with Ms. Dolinsky’s property downhill. Further downhill, beneath both properties, lay the

Old Is Not Necessarily Obsolete #480

Legally Speaking

On occasion, buyers become interested in properties that are subject to historical easements, some over one hundred years old. The Property Law Act provides that a court may cancel an easement where the easement is “obsolete.”  Some buyers, and occasionally their advisors, assume that anything old must, for that reason alone, be obsolete and proceed

Defects, Disclosure and Caveat Emptor #430

Legally Speaking

By Jennifer CleeB.A., LL.B. It’s trite law that a seller and a listing REALTOR® have a duty to disclose known material latent defects, but not patent defects. Sometimes the distinction as to what constitutes a patent defect or a latent defect isn’t clear. Take a sump pump in the crawl space, for instance. Is it

Drafting a Listing Exclusion #429

Legally Speaking

A listing contract may say that no commission is payable in certain circumstances; for instance, if the buyer is a certain person. Since the particular circumstances are excluded from those that attract commission, this arrangement is often called a listing exclusion. There is no standard wording for a listing exclusion. If the listing brokerage and seller

Representations Regarding Property Boundaries #428

Legally Speaking

By Edward L. Wilson Lawson Lundell LLP A REALTOR® should always take care when making any representation about the boundaries of a parcel of land. The location of buildings, fencing, landscaping, sidewalks and roads are often misleading indicators of a property’s true boundaries.  In a recent decision,1 the court considered a case where the buyers, in

Limited Dual Agency Can Still be a Risky Business #427

Legally Speaking

A recent BC Supreme Court decision awarded damages against a REALTOR® for breach of fiduciary duty while acting as a limited dual agent.1 The relationship between the plaintiff and the REALTOR® first began in 2005 when the plaintiff answered a newspaper ad concerning the sale of a property listed by the REALTOR®. The plaintiff, who was

Human Rights Code Complaint Against Licensee by Another Licensee; Minor Defect in Comparison With Larger Contract Benefit Didn’t Justify Repudiation #401

Legally Speaking

By Gerry NeelyB.A. LL.B. “Don’t shoot the messenger”—this must have been the reaction of a licensee against whom two complaints of discrimination under the Human Rights Code were made by another licensee. The first was discrimination on the basis of family status with respect to a service customarily available to the public under s. 8.

Strata Corporation — Suit by Some Owners Against Strata Council Members Personally; Strata Corporation — Unequal Habitable Areas but Equal Payment of Common Expenses Not Significantly Unfair #400

Legally Speaking

By Gerry NeelyB.A. LL.B. A strata corporation may sue one or more owners as representative of all owners, except those who are being sued, on a matter affecting the common property. It may also sue on behalf of one or more owners about matters affecting their strata lots. In either event, approval by a three-quarters’ majority vote of owners

Townhome and Apartment-Style Strata Units – Significantly Unfair Allocation of Expenses and Section Creation #399

Legally Speaking

By Gerry NeelyB.A. LL.B. Section 164 of the Strata Property Act (SPA) gives the Supreme Court of BC the authority, upon application by a strata owner or tenant, “to prevent or remedy a significantly unfair action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant.” The townhome-style owners referred to in column 392

Mortgage Broker’s Exclusive Contract Unenforceable #396

Legally Speaking

By Gerry NeelyB.A. LL.B. It’s a rare occasion when one’s expertise is a negative factor influencing a judge’s decision. That happened to an experienced mortgage broker and his client, an owner of two apartment properties and a REALTOR® for 25 years. The owner advised the broker that he needed to $2.3 million to refinance a

Partition of Property Act – When Friendship Turns to Enmity #395

Legally Speaking

By Gerry NeelyB.A. LL.B. Two couples who were close friends jointly purchased a Gulf Islands cottage, each taking a one-half interest in the property. They disregarded advice to agree on a method of establishing the price of a half-interest if one couple decided to sell their interest and the other couple wanted to keep the property.

Human Rights—Section 8 and Discrimination Regarding Accommodation #394

Legally Speaking

By Gerry NeelyB.A. LL.B. (continued from Legally Speaking 393) The obligation to accommodate the needs of a disabled person was applied in a Nova Scotia case where the complainant sought accommodation in a mobile home park. He could not walk further than 25 feet and used a scooter and wheelchair to move about. He needed a 10

Strata Property Act—Common Expenses, Issue Between Non-Sectioned Apartment and Townhome Units; Strata Property Act—Undisclosed Strata Council Conflict of Interest #392

Legally Speaking

By Gerry NeelyB.A. LL.B. A strata corporation incorporated in 1987 had 36 apartment-style units and eight townhome-style units. The original owners agreed it would be fair to allocate 18 common expenses on a percentage basis between the two styles, based on the extent to which the benefit of an expense was attributable to one or

Compensation for Loss of Commission Under a List Back Agreement #391

Legally Speaking

By Gerry NeelyB.A. LL.B. Legally Speaking 62 and 162 discuss cases involving paragraph 8 of the Multiple Listing Contract, which requires an owner to refer all enquiries and offers for the purchase of the listed property to the listing agent. An owner’s breach of this obligation gives the listing agent the right to damages for loss

More Caveat Emptor, Latent and Patent Examples #384

Legally Speaking

By Gerry NeelyB.A. LL.B. The owners of a house, which was old when they bought it in 1979, sold it in 1994 to buyers who discovered after completion that the kitchen floor sloped 2.5 to five centimetres from one side to the other. The buyers elected not to retain a home inspector, although there were

Caveat Emptor and Seller’s Lack of Knowledge of a Latent Defect #383

Legally Speaking

By Gerry NeelyB.A. LL.B. A Supreme Court judge concluded the following advertisement by a representative for the sale of a lot implied a warranty that the buyer could commence construction of a house without unusual expense or building methods:”0.59 (acre) building site in an area of executive homes. South West view property. Fully serviced lot.