Legally Speaking

Stickers Aren’t Just for Kids Anymore: Why CSA Labels Matter #547

My children collect stickers and trade them at school as though they are currency. And for adults and licensees, the stickers that should concern you are the Canadian Standards Association (CSA) label and the silver label. Licensees selling a mobile or manufactured home should locate and investigate the validity of a CSA label or silver

Assignment Terms – It’s All in the Contract #546

Licensees must ensure they read the terms of real estate contracts carefully and explain them to their clients. This is especially true when it comes to assignment clauses contained within contracts. Within the past number of years, the government has imposed laws and regulations around assignments in order to protect sellers, prevent ‘shadow flipping,’ and

Licence and Registration Please #545

A strong licensing regime is one of the cornerstones of the BC Real Estate Services Act (“RESA”), and something all licensees will be familiar with. However, some intricacies of licensing requirements may catch you off-guard, which is what happened in two recent BC Financial Services Authority (“BCFSA”) investigations resulting in discipline. Licensing – An Overview

The Increasing Cost of Misconduct #544

Prior to September 30, 2016 the Real Estate Service Act (Act) limited monetary penalties for brokerages and licensees to $20,000 and $10,000 respectively. However, as of September 30, 2016, the Legislature amended section 43(2)(ii) of the Act to allow for monetary penalties of up to $500,000 in the case of brokerages and $250,000 in any other case.

Conflicts of Interest: Sound Judgment Required #543

As Brian Taylor summarized in his February 26, 2021 Legally Speaking article, Learning from an RECBC Discipline Decision #535, the disciplinary landscape for real estate professionals changed dramatically in September 2016. Most starkly, fines and penalties were greatly increased by the then regulator, the Real Estate Council of BC (RECBC). But there is no need

Enforce Your Rights, or Lose Them #542

Anyone who has been involved in a transaction for a property under construction is likely familiar with the potential for delays of completion. While developers don’t often fail to deliver, it can happen. What happens when significant delays do occur? Can a developer be in default under the contract? What about the innocent party in

Tips for Using Clauses and Amending Contracts of Purchase and Sale #541

Standard form contracts of purchase and sale are very useful in real estate transactions. They are familiar, well-tested, and cover off all the basics and much more. However, real estate is complicated and the one-size-fits-all approach may not fit every situation. In cases where a standardized contract of purchase and sale does not entirely address the specific needs of the transaction adding terms and conditions – or

Testing the Waters: Transactions Involving Float Homes #540

Float homes can seem like great options for buyers seeking an affordable waterfront location. However, buyers considering purchasing their first float home may not be aware of some of the differences between such a purchase, and the simple purchase of a boat, or home on land. Here’s an overview of some differences to keep in

Co-Ownership Agreements: “Till Dispute Do Us Part” #539

With the cost of properties continuing to rise in most parts of British Columbia, many people are looking to invest or acquire properties with others. While the co-ownership of property can have financial benefits at the outset, it can also come with a host of problems and disputes. Therefore, parties should consider entering into a

Assignee Beware #538

In a caveat emptor, or buyer beware, jurisdiction such as BC, buyers are required to conduct their own due diligence to satisfy themselves as to the condition of the property they are acquiring. They often employ experts such as home inspectors and environmental, structural and geotechnical engineers to assist them in this regard. These experts

Hot Markets: Risks and Tips to Avoid Getting Burned #537

How hot is the current hot market? Hot enough that earlier this month, the Real Estate Council of BC (RECBC) issued a caution to consumers and real estate professionals, reminding consumers of the importance of due diligence and reminding real estate professionals to have full and frank discussions with consumers, fully explaining the increased risks

Working with Unrepresented Parties #536

Since the restriction on limited dual agency was introduced in 2018, it has become more common for REALTORS® to work with unrepresented parties in a transaction. Dealing with unrepresented parties presents risks to both consumers and Realtors. Realtors should be familiar with the Real Estate Rules for dealing with unrepresented parties so that they understand

Learning from an RECBC Discipline Decision #535

Starting in 2016, the real estate profession has seen numerous regulatory changes, including increased fines, new regulations, greater involvement from the Real Estate Council of BC (RECBC) and the elimination of limited dual agency. As a result, I have tried to focus many of my more recent articles on discipline decisions of RECBC. While discipline

A Whole Lot to Know About the Land Owner Transparency Act #533

On November 30, 2020, the Land Owner Transparency Act1 (LOTA) came into effect, and with it, the Land Owner Transparency Registry (LOTR). Now, with every change in title to a property in British Columbia, a transparency declaration must be filed with the Land Title and Survey Authority of British Columbia (LTSA). Individuals acquiring an interest

Powers of Attorney Can Be Tricky #532

Licensees must be aware of the challenges that exist when representing someone who claims to have the legal right to act on behalf of a property owner on the basis of a power of attorney. Is the power of attorney valid? Was it properly executed? Does it empower the attorney to deal with real property?

Beyond Your Expertise: When to Recommend Clients Get Legal Advice #531

The Question I am asked for advice from licensees on potential claims daily. They often describe a scenario involving complex matters beyond the expertise of a licensee, such as taxes, structural issues/defects or complicated legal questions, like whether a contract alive or dead? They want to know what they should do and what they should

Knowing the Rules May Not Be Enough #529

A recent discipline decision from the Real Estate Council of BC (Council) illustrates how important it is for licensees to be aware of and follow Council guidelines and their interpretations, which can be found in newsletters, notices, articles, and answers to Frequently Asked Questions, all readily available on Council’s website. In this decision,1 a couple

Suing for Unpaid Deposits #527

Generally speaking, if a buyer breaches a contract for the purchase of real estate and the seller accepts the buyer’s refusal to perform the contract (as known as “repudiation”), an innocent seller is entitled to retain the deposit paid by the buyer under a contract of purchase and sale. But what happens when a buyer

Necessity is the Mother of Invention #526

The COVID-19 pandemic has deeply affected many parts of our society and economy – including the real estate industry. Terms many of us hadn’t heard of just three months ago – social distancing, self-isolation, lockdown, and Zoom conferencing – are now as common as, “What’s for lunch?” Buying real estate, particularly in a caveat emptor

Protect Your Clients and Reduce Claims Risks During COVID-19 #525

These are unprecedented times with the arrival of COVID-19. We have all heard that many times and it’s true for all industries, including real estate. Although the market has slowed down, there will still be deals made and deals completed. There will also still be claims made against licensees. For the most part, these claims

Collapsing Deals: A Refresher on the Common Law Principles #524

The current situation with COVID-19 has led to daily changes in the way we live our lives and conduct our business. The rapid changes and daily announcements have led to a lot of uncertainty and questions. In periods of flux, whether economic, political or social, we often see a greater number of collapsing real estate

Strata Termination Update #521

A year ago in Legally Speaking No. 509, I described two Supreme Court of British Columbia cases that addressed whether a strata corporation must first pass an 80% vote (sometimes called a “winding-up resolution”) before strata council may list the whole complex for sale with a brokerage or enter a contract to sell the entire

When Cooperatives Become Uncooperative #520

When we think of residential occupation, our minds turn to fee simple ownership, strata property ownership or maybe rental occupation. A lesser known but growing form of housing is cooperative housing under the Cooperative Association Act SBC 1999 c.28 (“Act”). Unlike strata ownership, members of a cooperative do not own a specific unit. Members of

Back-Up Offers: There’s a Clause for That #519

Roughly twice a year my heart stops when a claim comes to my attention. Why? Because a licensee reports that the seller has sold the property twice! Naturally, the seller is upset. They only have one property to sell and two buyers demanding it.  In these instances, the seller typically accepts an offer for the

Strata Parking May Get Simpler #518

In its newest report (the “Report”), the British Columbia Law Institute’s formidable committee of strata experts (the “Committee”) recommends more changes to the Strata Property Act (the “Act”). If adopted, these changes will make it easier for a REALTOR® to confirm how strata parking is designated. 1 Background Depending on the circumstances, a strata parking

The First Law of Holes #517

Will Rogers defined the first law of holes as follows: “When you find yourself in a hole; stop digging.” A recent discipline decision of the Real Estate Council of British Columbia1 suggests the licensee involved should have taken Mr. Rogers’ advice. The licensee acted as the designated agent of the seller in the sale of

Pitfalls in Transactions Involving Strata Condominiums #516

A recent Civil Resolution Tribunal decision1 highlights some important practice points for licensees in transactions involving strata condominiums. The buyer of a strata condominium claimed against the seller’s agent in misrepresentation and false advertising arising from the description of the building as having a “fully rainscreened exterior” in the MLS® listing. The buyer was surprised

Liability For Strata Insurance Deductibles #515

Many strata owners do not know they may be personally liable to reimburse their strata corporation for its insurance deductible, the portion of the loss the insured must pay in an insurance claim, which can be many thousands of dollars. The British Columbia Law Institute’s formidable committee of strata experts (the “Committee”) recently recommended changes

Death at a Property Revisited #514

In 2007, a man was murdered outside the gates of his Shaughnessy home. The murder, described by the police as a targeted killing, remains unsolved. The victim lived in the home with his wife and two children. The property was owned by his mother-in-law, who resided in China. One of his daughters attended a private

Know Your Seller #513

Seller’s agents must be certain that they are dealing with the person with authority to list and sell the property. Confirming the identity and the authority of your clients may seem simple. However, in the global society today with complex deals, complicated ownerships of property and challenging deals, the pitfalls may be expanding. Examples of

Strata Age Restriction Bylaws #512

Strata age restriction bylaws are alive and well. When providing any accommodation, service or facility customarily available to the public, the provincial Human Rights Code normally prohibits one person from discriminating against another because of the other person’s age or family status, unless there is a bona fide, reasonable justification.1 But, the Strata Property Act

Don’t Forget About Council #511

In the many years that I have taught the Legal Update course, most REALTORS® have shown understandable interest in court decisions and how those decisions might affect their practice and personal liability. Surprisingly, I have not noticed the same level of interest or concern regarding disciplinary decisions by the Real Estate Council of BC (Council).

Disclaimers Against Reliance: Not Always a Magical Cure #510

Number 510 In a recent case from the BC Provincial Court1, the following disclaimer was found ineffective in defending the buyer’s claim that the sellers’ agent was negligent in including incorrect square footage calculations in the MLS® listing: “The enclosed information while deemed to be correct is not guaranteed.” The judge found the sellers’ agent

Strata Termination #509

Where strata owners choose to terminate their strata development, two recent cases clarify when a strata council might list the project for sale or contract to sell it to a buyer.1 Many of our earliest strata developments are roughly 50 years old. An aging strata building may need so much remedial work that it is

Duelling Regulators #508

Recent amendments to the Real Estate Services Act (RESA) granting the Superintendent of Real Estate (Superintendent) greater oversight over the Real Estate Council of BC (Council) resulted in a recent jurisdictional clash between the two regulators.1 In February 2016, in response to concerns about real estate licensee conduct, the Superintendent established an Independent Advisory Group

The Section 9 Trap #507

When a residential listing agent receives an offer in the standard form, Contract of Purchase and Sale (CPS), the licensee should always cross-check Section 9 and any related wording against the seller’s title. In the CPS, Section 9 promises that at completion the seller will deliver clear title, subject only to the following exceptions: subsisting

Remind Consumers: They Are What They Sign! #506

When dealing with consumers, licensees will encounter those who do not read, write or speak English well, or even at all. While licensees are required to be proficient in English as a part of becoming licensed and meeting the English language proficiency requirement of Rule 2-6.1 of the Council’s Real Estate Rules, consumers naturally have

The Disciplinary Power of Real Estate Boards and Associations #505

A REALTOR®’s conduct is subject to review by a variety of bodies. As agents, their conduct is subject to review by the courts where it is alleged that conduct was negligent, breached contractual requirements or was in breach of their fiduciary duties. As licensees, their conduct is subject to review by the Real Estate Council

Third-Party Recommendations and REALTOR® Liability #504

Could a licensee be held liable for the poor performance or negligence of another professional such as a home inspector, contractor, or notary public, whom the licensee referred to his or her client? It depends. Factors to be considered include: whether the licensee conducted any due diligence into the competence or reputation of the referred

Implied Agency: If It Quacks Like a Duck, It May Be a Duck! #503

Implied agency is very much on the brain these days with the Superintendent of Real Estate’s new rules on agency now in effect. Rule 5-10.1 requires that licensees use a new form from the Real Estate Council of British Columbia to disclose the risks faced by unrepresented parties, the limited assistance that licensees can provide

Death at a Property #502

If someone dies at a property, is the death a material latent defect that must be disclosed in writing to all other parties before entering an agreement under Rule 5-13?1 Or, is the death a stigma and, if so, must the listing agent disclose it? In Wang v. Shao, the owner was a grandmother whose

Timing is Everything #501

One often hears the phrase “timing is everything.” In a recent case,1 a pair of unfortunate buyers found that out the hard way. The buyers entered into a Contract of Purchase and Sale (CPS) to acquire a residential property. The parties used the standard form residential CPS, although no REALTORS® were involved. The purchase price

Who Should Verify Zoning? #500

In the recent case Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc., 2018 BCSC 66, the real estate brokerage advising the tenant was found 70 per cent liable for failing to verify the zoning. The tenant had walked away from a lease for commercial premises after the City of Vancouver refused to issue permits

Offer vs. Option vs. Contract of Purchase and Sale #499

Some conditions precedent are so imprecise or subjective that they prevent the formation of a contract. Pending the weak subject’s removal, we have only, in law, an offer. Removing the subject in question amounts to accepting the offer. Until the buyer delivers written notice removing the offending subject by the subject removal deadline, there is

Failure To Disclose Proves Costly #498

In the summer of 2012, a seller was advised by his neighbour that environmental consultants were inspecting the neighbour’s property for possible contamination, and would contact the seller to do similar tests on his property. In August and September, the seller received two separate “Notification of Likely or Actual Migration” forms from the environmental consultants.

Subject Removal #497

When is a party justified in refusing to remove a subject clause? A subject clause typically benefits one party or another. At common law, that party must, in good faith, make all reasonable efforts to remove their subject clause. In the standard form Contract of Purchase and Sale, the contract terminates if a party fails

The Devil is in the Details #496

Judges are often asked to decide between competing versions of events at trial. Lawyers are advocates attempting to persuade the judge that their client’s story should be preferred. When making the decision as to which party’s version of events to believe, a judge may consider which story makes sense, is logical, has a ring of

Vacant Possession #495

Vacant possession means no one else is exercising possession rights in the property. Section 5 in the standard form Contract of Purchase and Sale (CPS) promises a buyer vacant possession, unless a REALTOR® otherwise records the presence of a tenant. Every year, the Real Estate Council of British Columbia (the Council) disciplines REALTORS® for failing

Seller’s Remorse Not Rewarded #494

Too often this column focuses on a REALTOR®’s error or mistake resulting in the REALTOR®’s censure by either a court or the Real Estate Council of British Columbia. Such columns, while concentrating on the negative aspects of practice, are essential in providing REALTORS® with an understanding of the appropriate standard of care and duty expected

Licensees Liable for Not Determining Seller’s Non-resident Status? #493

On March 25, 2017, several local newspapers ran a story with the alarming headline, “House buyer beware: Landmark court ruling will shake real-estate industry.”1 The story referred to a February 10, 2017 BC Supreme Court judgment2 and left licensees wondering about this decision’s impact on their duties to ascertain the Canada residency status of sellers for the

Effective Cause #492

What if a buyer is introduced to a property, or to a seller, during a multiple listing, but later enters a legally enforceable contract to buy the property after the listing expires? The standard Multiple Listing Contract (MLC) preserves entitlement to commission in two stages, subject to one overriding consideration. First, if the seller and buyer enter

Consequences For Breach Of Fiduciary Duties #491

S was the owner-operator of both a real estate brokerage and a mortgage company which intermingled their business enterprises. From 2002 to 2005, M worked as a REALTOR® for the real estate brokerage. In 2004, M purchased a property and by 2007, had consolidated all the mortgages on the property into a single mortgage to

When Disaster Strikes #490

By Jennifer Clee B.A., LL.B. What happens when a property is damaged by fire before completion? Must the buyer complete or can the buyer walk? What if the buyer wants to complete with a price adjustment? A buyer’s options will depend upon a myriad of factors including the law, facts, contract terms and the parties’ conduct.

Owner-Builders Liable For Poor Construction #489

Since the last Legally Speaking on this topic,1 the Supreme Court of British Columbia has awarded significant damages against two owner-builders for poor construction. The provincial government has also raised the threshold for the owner-builder exemption. Since July 1, 1999, unless an exemption applies, every new home in British Columbia must be built by a licensed residential builder,

Recent Regulation Regarding Assignments #488

In May 2016, in response to public concern over the flipping of single family residential properties in a surprisingly robust residential market, the provincial government amended the Real Estate Services Regulation concerning the assignment of Contracts of Purchase and Sale (CPS).1 The amendment is designed to ensure that buyers and sellers are properly advised about

Boo You Really Want to Know? #487

By Jennifer Clee B.A., LL.B. Licensees often ask whether a death at a property must be disclosed by the seller, be it death by murder, natural causes, accident or suicide. The simple answer is no. However, there are practical considerations that may make disclosure of such events beneficial to the seller. Seller’s Disclosure Duty Sellers and

Material Latent Defect Versus Latent Defect. Is There a Difference? #486

Two major disclosure duties govern every listing REALTOR®. Common law requires the Realtor to disclose any known latent defect. At the same time, the Real Estate Council of British Columbia (Council) demands compliance with the Material Latent Defect Rule.1 Are these two requirements the same? Common Law Latent Defect Under common law, the onus is on

Marketing Decisions Can Be Significant #485

A decision as to whether a seller should market multiple lots separately or as a package is usually considered a marketing decision, but it can have legal implications as well. In this case,1 the seller offered two separate commercial properties for sale as a package. Each property was subject to a right of first refusal (RFR)

To Rent or Not To Rent #484

Under the Strata Property Act1 (Act), a strata corporation may pass by-laws prohibiting or restricting the rental of strata units. A rental restriction by-law (RRB) must be filed at the Land Title Office and will take effect: I. immediately upon filing, if filed by the developer prior to the sale of any units; II. alternatively, the later

Property Disclosure Statement Tips #483

The BC Court of Appeal recently decided Nixon v. MacIver, the court’s newest Property Disclosure Statement (PDS) case.1 Once again, the court held in favour of the sellers. It seems timely to offer a few PDS suggestions for licensees. Listing REALTORS® Why use a PDS? It makes sense that the seller, the person most familiar with the

Timing is Everything #482

In today’s busy marketplace, there is a greater risk of mistakes being made regarding dates and times in a contract, amendment, or other agreement for the sale or lease of land. It is of critical importance that licensees carefully review agreement terms with their clients to avoid simple, but costly date and/or time errors. Have

Liability for Commission #481

A recent BC Supreme Court decision confirms that the Multiple Listing Contract (MLC) creates an equitable assignment by irrevocably assigning to the listing brokerage its commission out of the sales proceeds, imposing a trust obligation on the seller.1 For the conveyancing lawyer or notary, this case and recent changes to the standard Contract of Purchase and

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

Caveat Emptor Does Not Always Protect The Seller #477

Legally Speaking

In a recent case, the plaintiff offered to purchase a property “subject to inspection.”1 A Property Disclosure Statement (PDS) accompanied the Contract of Purchase and Sale wherein the sellers had answered negatively to whether they were aware of any structural problems, moisture and/or water problems in the walls, basement or crawl space or damage from wind,

Dealing With Heritage Sites #476

Legally Speaking

By Jennifer CleeB.A., LL.B. How many licensees are aware that the Heritage Conservation Act (HCA),1 which replaced the Archeological and Historic Sites Protection Act (the Act) in 1977, extends the legislated protection of archeological sites on Crown lands, to archeological sites on private property, without requiring formal designation or notice being registered on title? An archeological site by definition is

Leasehold Strata Parking and Storage #475

Strata developers often use long-term leases to generate revenue from the sale of leasehold interests in parking stalls and storage lockers. A recent case1 reminds licensees about the importance of the lease documentation, the requirements for which were updated in 2014.2 In a lease over land, recall that the tenant acquires exclusive possession for the

Selling The Right To Occupy Unsubdivided Land #474

In 2001, Lakefront Ranch Inc. (Lakefront) owned 320 acres of land in central BC. The property was situated within the Agricultural Land Reserve (ALR) and therefore subject to the Agricultural Land Commission Act (ALC Act) which prohibited the subdivision of land within the ALR into smaller parcels except in extraordinary circumstances. The shareholders of Lakefront were four

Practice Limited Dual Agency At Your Risk #473

Despite being fraught with risk, licensees continue to practice limited dual agency. While BC courts have recognized the modifications to the agency relationship agreed to by buyers and sellers who have entered a Limited Dual Agency Agreement, a licensee failing to document the parties’ informed written consent to limited dual agency prior to acting as a limited dual agent

Strata Update #472

Since late 2013, the provincial government has brought into force various changes affecting strata properties. It seems a good time to review these notable developments. Strata RecordsThere are new strata record-keeping requirements concerning parking stalls, storage lockers and depreciation reports. As of April 9, 2014, a strata corporation must keep a current list of each

Aboriginal Title and Its Implications #471

On June 26, 2014 the Supreme Court of Canada released a landmark decision concerning Aboriginal rights and title in the Tsilhqot’in Nation v. British Columbia1 case. In a unanimous decision, the Supreme Court of Canada confirmed that the Tsilhqot’in Nation holds Aboriginal title to over 4000 square kilometers of land west of Williams Lake. This decision is

The Homeowner Protection Act: Protect Your Clients and Yourself #470

Licensees who list, offer for sale or sell a home contrary to the provisions of the Homeowner Protection Act1 (the Act) face penalties up to $25,000 per offence ($100,000 for corporations) and/or up to one year imprisonment per offence. Licensees violating the Act also face negligence claims from clients and/or disciplinary action by the Real Estate Council

The Duty to Review Contract Terms #467

By Jennifer CleeB.A., LL.B. BC courts have accepted that the Limited Dual Agency Agreement (LDAA) limits certain general obligations that a licensee has to their clients. However, licensees must remember that while their duty of loyalty and disclosure are modified by the LDAA, they still owe a duty of “full and fair disclosure of all

Words Count in a Warranty #466

Legally Speaking

A warranty is a minor term in a contract and does not go to the root of the agreement between parties. It expresses some lesser obligation. Breach of warranty permits the innocent party to sue for damages, but not to repudiate or rescind the contract.1 When negotiating a real estate purchase, a buyer may ask

Buyers Must Beware #465

Legally Speaking

A recent Provincial Court decision1 was an excellent example of how BC higher court judgments are applied to the factual problems that arise between buyers and sellers. In February 2005, the defendant, Montpetit, purchased a fire-damaged house. He undertook extensive renovations and in February 2006, listed the renovated property for sale with Coast Realty. Montpetit signed

Parking Stalls and Strata Units #464

Legally Speaking

By Jennifer Clee B.A., LL.B. Licensees often mistakenly misrepresent the parking included with a strata unit sale, as a result of relying upon the seller for that information. As many sellers are mistaken as to their parking rights, licensees cannot rely upon sellers to provide accurate parking information. Parking stalls are designated either as part

A True Condition Precedent #463

Legally Speaking

In Swan Group Inc. v. Bishop, a $130,485 deposit was at stake.1 The issue was whether a subject clause was a true condition precedent (TCP). At common law, a TCP is an external condition whose fulfillment depends on the will or actions of someone who is not a party to the contract;2 for example: [s]ubject to the …

Non-Refundable and Absolutely Forfeited Means Exactly That #462

Legally Speaking

Prior to April 2012, Section 12 of the standard Contract and Purchase and Sale (CPS) provided that unless the balance of the purchase price was paid by the buyer on the completion date set out in the contract, “the seller may, at the seller’s option, terminate this contract, and, in such event, the amount paid

The Impact of the New BC Limitation Act on Licensees

Legally Speaking

By Jennifer Clee On June 1, 2013 the new BC Limitation Act1 (new Act) will come into force. The new Act replaces the former Limitation Act2, which came into effect in 1975. What is the Limitation Act? The Limitation Act sets out how long a person has before he/she must start a civil court proceeding for a legal remedy. “Limitation period”

A Bad Inspection Report #460

Legally Speaking

When a buyer refuses, for a legitimate reason, to remove a subject clause because of a bad inspection report, what is the listing licensee to do with that knowledge? This was the issue in a recent case where the court found the listing licensee liable for $47,000 in damages for failing to fully tell subsequent

Limited Dual Agency and Independent Advice #459

Legally Speaking

Judicial consideration of the practice of limited dual agency continues to evolve. A recent court decision1 considered whether a REALTOR® had a duty to refer their client for independent legal advice before the client entered into a Limited Dual Agency Agreement (LDAA). The plaintiff was a retired labourer with an elementary school education who, together with

Can You Sell Your Home By Email? #458

Legally Speaking

By Jennifer CleeB.A., LL.B. The New Brunswick Court of Appeal recently considered whether an exchange of emails between a prospective buyer and seller of residential property constituted a binding contract.1 The property was listed for sale on Kijiji. After an initial phone call, the buyer and seller negotiated a sale by email. The seller emailed

Provincial Crown Land Leases 101 #457

Legally Speaking

Whether helping a client to buy or sell a leasehold interest in a provincial crown lease, the licensee must investigate the lease. A listing licensee should always ask for the tenant’s original lease document. Later, the Crown Land Administration Division (“CLAD” or “the Administration”) will require the original to process a transfer of the lease.

REDMA’s Reach #456

Legally Speaking

The Real Estate Development Marketing Act (REDMA) regulates the marketing within British Columbia of development properties located inside and outside of BC. A recent BC Supreme Court decision considered the extent of the concept of “marketing” a development property in BC.1 A developer constructed a multi-unit high rise condominium project in Edmonton, Alberta. The units

Verifying Assessment Data #455

Legally Speaking

By Jennifer CleeB.A., LL.B. It has been customary for licensees to rely upon BC Assessment and MLXchange for the assessed value of properties offered for sale. A recent decision of the BC Supreme Court1 illustrates the danger of licensees relying upon that information without ensuring that the information is current, particularly where the information was

A Phased Developer Must Contribute to Common Facilities #454

Legally Speaking

Though many licensees are not aware of it, in a phased strata project the developer must contribute to the cost of common facilities until the final phase is deposited. The British Columbia Court of Appeal’s recent decision in Strata Plan NES 97 v. Timberline Developments Ltd. is a good illustration.1 In that case, a strata

Forfeiture of Deposit #453

Legally Speaking

Section 12 of the standard Contract of Purchase and Sale provides that unless the balance of the purchase price is paid on the completion date “the Seller may, at the Seller’s option, terminate this Contract, and, in such event, the amount paid by the Buyer will be absolutely forfeited to the Seller…on account of damages

Buyers’ Due Diligence Obligations #452

Legally Speaking

By Jennifer CleeB.A., LL.B. There have been a number of recent articles on a seller’s obligation to make full and complete disclosure of all issues respecting property offered for sale. What about a buyer’s obligation when purchasing property? Most licensees are familiar with the doctrine of caveat emptor or ‘buyer beware.’ That maxim holds that

Condo Document Alert #451

Legally Speaking

The majority of all new housing starts involve strata properties. In a dozen municipalities, strata properties now make up more than half of all taxable properties.1 In December 2011, the provincial government changed several important strata requirements.2 Whether a licensee markets strata properties or manages them, the licensee needs to know about these developments. The

Electronic Signatures #450

Legally Speaking

As computer technology plays an increasing role in the real estate industry we are forced, from time to time, to evaluate these technologies in order to ensure they are consistent with the law and responsible practices. Contracts of purchase and sale and other documents used by REALTORS® are already commonly delivered or transmitted by fax

What’s in a Name? Engineering Reports and the PDS #449

Legally Speaking

By Jennifer A. CleeB.A., LL.B. The recent BC Supreme Court decision of Meslin v. Lee1 considers what constitutes an “engineer’s report” for the purpose of disclosure on the Property Disclosure Statement (PDS). The action involved a condominium sale (the property) that failed to complete. On the completion date, the buyers rescinded the Contract of Purchase and Sale

Foreclosure and Residential Tenants #448

Legally Speaking

Licensees often wonder whether during foreclosure proceedings the borrower can rent the property to a residential tenant so the tenancy survives the foreclosure. Generally speaking, the answer in British Columbia is “no”. The recent decision in First National Financial GP Corp. v. Sirotka, illustrates why.1 In 2009, the lender began foreclosure proceedings which the borrowers did

Property Disclosure Statements: Benefit or Burden? #447

Legally Speaking

By Jennifer Clee The real estate industry is in a furor over the recent decision of the Ontario Court of Appeal in Krawchuk v. Scherbak1; both the sellers and the real estate agent were found liable to the buyer despite disclosing past settlement of the home and despite the buyer’s obligation to make enquiries of and