Legally Speaking

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

“Limited Dual Agency Or No Agency,” There Is A Different #446

Legally Speaking

A recent case illustrates the pitfalls awaiting brokerages and REALTORS® when choosing to act as a limited dual agent.1 A couple engaged a brokerage and REALTOR® to assist them in the purchase of a house (the Grandview property). The Contract of Purchase and Sale for the Grandview property was subject to the sale of their

Object Quickly! #445

Legally Speaking

Where time is of the essence, failure to perform an obligation on time is a fundamental breach. The innocent party may treat the breach as repudiation, walk away and sue for damages. Gulston v. Aldred involved the sale of a residential property.1 On March 3, 2008, the parties entered a standard form Contract of Purchase and Sale

Title Considerations: The Clause 9 Problem #444

Legally Speaking

By Jennifer Clee Clause 9 in the Contract of Purchase and Sale requires a seller to deliver title “free and clear of all encumbrances except subsisting conditions, provisos, restrictions, exceptions and reservations including royalties, contained in the original grant or contained in any other grant or disposition from the Crown, registered or pending restrictive covenants

Enforcement of Holdover Clauses #443

Legally Speaking

Commission under listing contracts has always been payable where a legally enforceable Contract of Purchase and Sale is entered into by the seller during the term of the contract. In 1997, the Multiple Listing Contract was amended to expand the circumstances under which a commission is payable. Section 5A(ii) of the Multiple Listing Contract now

Title Insurance #442

Legally Speaking

By Jennifer Clee Occasionally, claims are reported to the Real Estate Errors and Omissions Insurance Corporation (REEOIC) involving complaints by buyers against licensees which might not have been made if those buyers had bought title insurance. Title insurance is an insurance policy provided by title insurance companies that protects residential or commercial property owners and/or

Measuring Commercial Premises #441

Legally Speaking

A recent case confirms that when listing a commercial property, a licensee should break down the rentable area of each floor.1 The property was a building in Kamloops consisting of a main floor and mezzanine.2 On April 16, 2004 the licensee’s brokerage listed the property for sale. The buyer was a corporation in the business of purchasing and

Collapsed Sale — Remarketing and Reasonable Mitigation #440

Legally Speaking

By Edward L. Wilson The falling market of 2008 saw a number of buyers refusing or unable to complete their purchases and sellers were often electing to terminate their contracts, relist and sell their property. Sellers then often sued the defaulting buyer for damages, being the difference between the original sales price and the ultimate

Limited Dual Agency and the BC Court of Appeal #439

Legally Speaking

In 2008, a BC Supreme Court decision awarded damages against a REALTOR® for breach of fiduciary duty when acting as a limited dual agent.1 The REALTOR®, while selling his own property to a client, entered into a Limited Dual Agency Agreement as well having the buyer execute an Addendum to the Contract of Purchase and Sale

Being Sued is No Fun! #438

Legally Speaking

By Jennifer Clee We all know that being sued for allegedly failing to fulfill legal and/or professional responsibilities can be traumatic, but it can also be time consuming and consequently, expensive. A recent decision of our Provincial Court illustrates how legal proceedings involving relatively straightforward legal issues can morph into protracted and strenuous battles.1 The

Collecting An Unpaid Deposit #437

Legally Speaking

If a buyer defaults before a deposit is fully paid, can the seller terminate the Contract of Purchase and Sale and successfully sue for the unpaid deposit money? It depends on the contract. In Agosti v. Winter1, a standard form Contract of Purchase and Sale2 required a $10,000 deposit, “upon subject removal.” No other deposit requirements were

Strata Property Act – Changes to Rental Restrictions Rules #436

Legally Speaking

By Edward L. Wilson Since its adoption, the Strata Property Act has permitted residential strata corporations to adopt rental restriction bylaws. With the adoption of the Strata Property Amendment Act (SPAA), important changes to rental restrictions for new strata developments came into force as of January 1, 2010. Rental Disclosure Statements Developers of residential strata lots have long been

When an exclusion clause is not exclusionary #435

Legally Speaking

In a recent decision, the purchasers of a residential home were awarded over $160,000 in damages from their home inspector for negligence arising out of a pre-purchase inspection.1 That negligence was found was not particularly unusual, but the treatment by the Court of the home inspector’s contract is enlightening. The Court found that the home inspector

Underground Storage Tanks: A Refresher #434

Legally Speaking

By Jennifer Clee For properties built before 1957, the presence of an underground oil storage tank (UST) poses significant environmental and financial risk to buyers and sellers. Not only are properties with USTs at risk of oil contamination from leaking or eroding USTs, properties adjacent to the affected properties are at risk as well. Provincial

Passing Information Accurately #433

In a real estate deal, a client depends on the licensee to accurately relay information between the parties. This is especially critical where the licensee is a limited dual agent. A recent Real Estate Council of British Columbia disciplinary decision makes the point.1 Beginning in 2005, the licensee acted as the owner’s property manager for

Ownership Protected – Mortgage Fraud and the Land Title Act #432

By Edward L. Wilson Lawson Lundell LLP There are very few instances of mortgage fraud involving the registration of fraudulent mortgages in the Land Title Office. A recent Court of Appeal decision addressed the situation where a fraudster forged an owner’s signature to a transfer of the owner’s lot, transferring title to the fraudster’s accomplice

A Developer Must Disclose All Amendments to a Disclosure Statement #431

Legally Speaking

An anticipated result of the current economic situation has been in increase in litigation concerning condominium unit pre-sales. One such recent B.C. Supreme Court case relieved an unhappy purchaser from his obligations under the purchase agreement because the purchaser did not receive all of the amendments to the disclosure statement at the time of purchase.1

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

Limited Duty of Care in Limited Dual Agency #426

Legally Speaking

By Jennifer Clee There have been numerous articles on the legal concept of limited dual agency. Recent decisions of BC courts provide interesting judicial comment on the subject.  What is evident from the cases is that buyers and sellers entering into Limited Dual Agency Agreements (LDAA) still rely on REALTORS® to fully protect their interests.

Contract Fundamentals 101 #425

Legally Speaking

The recent BC Supreme Court decision in Bryjen Holdings Co. v. Pug Investments Ltd. is a refresher on contract fundamentals.1 The property was commercial. The Seller and Buyer were both small business corporations operated by married couples, who, in each case, were the principals of their respective companies. Even though the Seller and Buyer were individual

Commissions and the Power of the Seal #424

Legally Speaking

By Edward L. Wilson Occasionally one hears of a lawyer handling a closing, refusing to pay the REALTOR® their commission out of the purchase proceeds based on instructions from their client. What’s the impact of this action? In Clause 24 of the BCREA-Canadian Bar Association Contract of Purchase and Sale, the seller authorizes and instructs

Commissions and the Power of the Seal #424

Legally Speaking

By Edward L. Wilson Occasionally one hears of a lawyer handling a closing, refusing to pay the REALTOR® their commission out of the purchase proceeds based on instructions from their client. What’s the impact of this action? In Clause 24 of the BCREA-Canadian Bar Association Contract of Purchase and Sale, the seller authorizes and instructs

Buyer Agency Contract Enforced #423

Legally Speaking

Although only five to seven per cent of British Columbia REALTORS® consistently use written Exclusive Buyer’s Agency Contracts, their use and enforceability is growing elsewhere in Canada. In a recent Ontario case,1 a buyer engaged a brokerage and REALTOR® to assist her in finding a residential property to purchase. A suitable property was located and, prior

Brokerage Uses Oppression Remedy to Collect Commission #422

Legally Speaking

An Ontario brokerage recently used a modern corporate remedy to collect its commissions, when the principal of a corporate seller stripped virtually all the assets out of the company, leaving the seller an empty shell with no money.1 Some legal background is useful. Statutes require directors to make reasonable business decisions in light of all

Verify Accuracy in Listing Information #421

Legally Speaking

By Jennifer Clee Most REALTORS® and members of the public recognize the Multiple Listing Service® (MLS®) as an invaluable tool in the purchase and sale of property. The cooperative sharing of information on properties assists buyers search for suitable homes and sellers maximize the marketing exposure for their properties. Many buyers (and some REALTORS®) believe

Limited Dual Agency or No Agency? #419

Legally Speaking

REALTORS® should remember that limited dual agency isn’t the only option available to them when dealing with both parties to a transaction. A REALTOR® approached a property owner to see whether he was interested in selling his property. The REALTOR® faxed an offer to him together with an exclusive listing contract, a Limited Dual Agency

Take Care When Pricing Property #418

Legally Speaking

By Jennifer Clee Advising a seller as to an appropriate list price or reasonable sale price is fraught with risk in a hot market. A seller’s euphoria at achieving a sale price beyond wildest expectations quickly dissipates when the property resells shortly after at a significantly higher price, or when sales of comparable properties suggest

A Strata Council Member’s Liability #417

Legally Speaking

Many licensees own condominiums; some also serve on strata councils. Strata property managers regularly encounter strata council members. Recently, the Supreme Court of Canada had the last word on the liability of some strata council members (the Members) for conflicts of interest. The Strata Property Act requires a council member to fully disclose whether the member has

Full and Honest Answers to PDS Questions #416

Legally Speaking

By Edward L. Wilson Property Disclosure Statements (PDS) have been adopted by real estate boards and associations across Canada, with most being similar to the various PDS provided by BCREA. The care that must be taken in completing the PDS has been considered in several court decisions. In a recent Ontario decision, the court considered

Buyer Beware of Patent Defects #415

Legally Speaking

A seller has a duty to disclose material latent defects, but not patent defects, and the doctrine of caveat emptor (buyer beware) continues to apply to real estate transactions in BC. A seller spent four years renovating their residence, including constructing several retaining walls, relocating the kitchen, adding a bathroom and bar, moving an interior

Home Office or Work Space Expense Deductions #414

Legally Speaking

By Jennifer Clee Section 18(12) of the Income Tax Act permits a self-employed individual to deduct expenses associated in using part of the home as a place of business. However, no claim may be made in respect of any “work space” in a “self-contained domestic establishment” (dwelling house, apartment or similar place in a residence

In a Limited Dual Agency, When is Notice Received? #413

Legally Speaking

In general, when a licensee serves as agent for her principal—the client—the licensee has authority to send and receive communications for that client, unless the client directs otherwise. What about a limited dual agent? If a licensee is a limited dual agent, can the licensee receive notices from other persons for the seller and buyer,

“Time is of the Essence” Means “Time is of the Essence” #412

Legally Speaking

By Edward L. Wilson Lawson Lundell LLP Many REALTORS® assist buyers in locating and negotiating the purchase of new condominiums in pre-build situations. The developer’s form of contract is generally used and such contracts often provide for staged deposits, often over long periods, which invariably contain “time is of the essence” clauses. A buyer entered

Consequences of Breach of Fiduciary Duty #411

Legally Speaking

An agent’s duty of full disclosure to their client and the consequences of a breach of that duty were the subject of a recent lawsuit concerning deficiencies in a new townhouse in a development near Squamish.1 The owner/developer and the buyer of the unit were represented by separate REALTORS® from the same brokerage. The seller,

Conditions Precedent Revisited #410

Legally Speaking

By Jennifer Clee A representative’s primary duty of care to his/her client is to draft an enforceable Contract of Purchase and Sale. This can be challenging when the representative is also trying to protect his/her client’s interests by including certain conditions in the contract for that client’s benefit. A recent decision of the Supreme Court

A Recent Privacy Complaint #409

Legally Speaking

A recent privacy case highlights the need to obtain consent before using an individual’s personal information. The Privacy Commissioner of Canada recently found that a licensee, in an advertisement, breached the federal Personal Information Protection and Electronic Documents Act (PIPEDA) by using personal information about two other REALTORS® without their consent.1 What is PIPEDA? PIPEDA

Legislature Trumps the Courts #408

Legally Speaking

By Edward L. Wilson Lawson Lundell LLP A property owner with surplus lands may be tempted to lease a portion of a parcel of land to gain additional revenue. Farmers lease portions of their lands, as do owners of industrial and commercial properties, often with the assistance of a REALTOR®. However, in many cases, such

Property Disclosure Statement – Shield or Sword? #406

Legally Speaking

By Jennifer Clee In the early 1990s, the profession introduced the Property Disclosure Statement, or PDS (formerly, the Property Condition Disclosure Statement). From its inception, the PDS was intended to shield sellers and representatives from lawsuits by minimizing their risk of liability for negligent misrepresentation. By providing a written record of the seller’s knowledge and

Commission Due Despite Extension of Completion Date #405

Legally Speaking

In general, a brokerage must have a contract with a person to claim commission from that person. In each particular set of circumstances, the wording of the contract determines the brokerage’s entitlement to the commission. In Clause 5 of the Multiple Listing Contract, a commission is payable where a legally enforceable Contract of Purchase and

New Era for Legally Speaking #404

Legally Speaking

After penning his final issue of his illustrious 26-year tenure as author of Legally Speaking last month, Gerry Neely has passed the torch to four renowned BC lawyers, who will share the authorship duties, beginning in March. Please send questions, comments and suggestions for the new authors of Legally Speaking to [email protected] Mike Mangan Mike

One Man’s Opinion – A Conversation with the Readers (Part 2) #403

Legally Speaking

By Gerry Neely B.A. LL.B In his final issue as author of Legally Speaking, Gerry continues with his two-part discussion on legal issues in the real estate profession. When you reflect back on your authorship of Legally Speaking, was there one column that stood out and that you’re particularly proud of? Yes—column 224 (September 1994).

One Man’s Opinion – A Conversation With The Readers (Part 1) #402

Legally Speaking

By Gerry Neely, B.A. LL.B I decided earlier this year that it was time to turn over to others the pleasure of writing the Legally Speaking columns. I made this decision reluctantly, because I enjoy everything involved in the research and writing of the columns, as well as the opportunity to be involved with the people in organized real estate.

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

Ground water regulations and licensees standard of care #388

Legally Speaking

By Gerry NeelyB.A. LL.B. A recent Ontario decision involving a salty well demonstrates the importance of BC real estate licensees advising their clients of the legal requirements associated with the purchase of property containing wells, once BC’s new Ground Water Protection Regulation comes into force on November 1, 2005. See the August 2005 issue of The Bulletin for more

Latent defects – endangered bird species and heritage designation #387

Legally Speaking

By Gerry NeelyB.A. LL.B. An Ontario real estate salesperson learned more than he ever expected or wanted to about the Loggerhead Shrike (eastern population), “a songbird that hunted like a small hawk,” on the federal and provincial endangered species lists. He acted as dual agent on a 129-acre parcel of land, under an agreement not

Modification of an easement agreement #385

Legally Speaking

By Gerry NeelyB.A. LL.B. When is an easement not an easement? “When the rights granted by it detract so substantially from the rights of the servient owner that it must be something other than an easement.” This quote is from the reasons for judgment interpreting an easement agreement granting access over Lot 3 (the servient

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.

Broker’s Responsibility to Have Office Policies to Help Representatives Deal With Water Problems; Contract to Enter Into a Contract Is Unenforceable #382

Legally Speaking

By Gerry NeelyB.A. LL.B. An Alberta decision about a broker’s failure to establish policies for representatives to deal with known water problems in homes constructed by a developer in a given area reflects the high value of local knowledge. The broker’s problem started when a new licensee, who had never shown a house by herself,

Licensee’s Duty to Know Effect of Municipal or Other Governmental Land Use Laws #380

Legally Speaking

By Gerry NeelyB.A. LL.B. The decision in Legally Speaking 379, that the representative had a duty to know the relationship between the building code and municipal bylaws concerning inspections and permits, is one of several decisions examining circumstances where the representative had a duty to know municipal bylaws. Here are three more examples. A representative advertised that

Goodbye Salespersons, Nominees and Agents; Paragraph 2(f) of the PDS—Building Permits, Licensee’s Standard of Care and Material Latent Defects #379

Legally Speaking

By Gerry NeelyB.A. LL.B. To familiarize ourselves with the name changes for the classification of licensees in the new Real Estate Services Act, Legally Speaking columns from now on will describe salespersons as representatives, nominees as managing brokers and agents as brokerages. * * * A managing broker’s lament about the consequences of a seller who falsely answered

Fixtures or Chattels and the Case of the Missing Vacuum Canister #377

Legally Speaking

By Gerry NeelyB.A. LL.B. An experienced nominee recently related an instance of a buyer’s agent trying to settle a problem for his client by paying for a built-in vacuum canister that the seller intended to take. Since stories like this are common, he suggested revisiting Legally Speaking 247 and 260, and the question of chattels and fixtures.

Paragraph 8 of the Multiple Listing Contract—Seller’s Obligation to Refer Inquires and Offers; Commission Lost, Contingent Upon Giving Written Notice #376

Legally Speaking

By Gerry NeelyB.A. LL.B. Paragraph 8 of the standard Multiple Listing Contract requires the seller to refer and deliver all enquires of offers to purchase the listed property to the listing agent. It can be a lifesaver for a listing agent whose claim for commission would fail because his or her acts didn’t fall within

Building Schemes – Consequences of Failing to Obtain Building Plan Approval #375

Legally Speaking

By Gerry NeelyB.A. LL.B. In carrying out their duties, licensees, lawyers and notaries give their clients copies of titles, registered building schemes and other restrictive covenants and, in doing so, often duplicate them. It’s surprising then to find cases involving restrictive covenants, where buyers must have forgotten their existence or significance, with resulting costly consequences.

Legally Speaking 371 – Hardwood Flooring Bylaws Revisited; Paragraphs 8 and 14 of the Contract of Purchase and Sale #374

Legally Speaking

By Gerry NeelyB.A. LL.B. The message some licensees took from the two cases discussed in Legally Speaking 371 was that a strata corporation can’t enforce a bylaw restricting the installation of hardwood floors. In fact they can, due to s.219 of the Strata Property Act, which allows strata corporations to enact bylaws controlling the use and enjoyment

Caveat Emptor – Buyers’ Due Diligence; s.39 of the Real Estate Act and the Power to Impose a Penalty for Frivolous Lawsuits #369

Legally Speaking

By Gerry NeelyB.A. LL.B. A buyer who bought a waterfront home subsequently sued the listing agency and salesperson in the Victoria small claims court for negligently misrepresenting the garage size and stating that the kitchen cabinetry was made of cherry wood. She complained the garage was not long enough to hold a standard sized car

Holdover Commission Clause #356

Legally Speaking

By Gerry Neely B.A., LL.B. A fairly typical holdover clause in a commercial listing contract entitles the agent to a commission if a sale takes place within six months of the expiration of the listing, if a buyer is introduced to the property by the agent during the listing period. In one case, an additional

Untruthful Property Disclosure Statement Deceitful #364

Legally Speaking

By Gerry NeelyB.A., LL.B Paragraph 18 of the Contract of Purchase and Sale excludes liability for misrepresentations made outside it and the Property Disclosure Statement (PDS), when the PDS forms part of the contract. However, it does not protect a party against whom an action for deceit is brought. This issue is discussed in a

Amendments in counter-offer—should seller’s agent advise buyer’s agent of changes to offer? #363

Legally Speaking

By Gerry NeelyB.A., LL.B. The first case in Legally Speaking 362 discussed the liability of a buyer’s agent who had submitted an offer containing a conditional inspection clause. He failed to notice the seller’s counter-offer amended the inspection clause, which led to the buyer’s loss of a $50,000 deposit. Although the agent was clearly negligent, he must have

Buyer’s Agent Failure to Advise of Amendment in Counter-Offer #362

Legally Speaking

By Gerry NeelyB.A., LL.B An Ontario buyer’s agent, who submitted an offer to the seller’s agent, discovered the importance of carefully examining the seller’s counter-offer for amendments the hard way, at a personal cost of $50,000. The offer was subject to an inspection and to the “obtaining of a report satisfactory to the purchaser.” This

An Agent’s Duty of Care – Commission Cases Continued #360

Legally Speaking

By Gerry NeelyB.A., LL.B. Legally Speaking 359 considered a licensee’s successful claim for commission when his principals argued that he breached the standard of care and fiduciary duty owed to them by failing to act upon and disclose information that might have benefited them. The judge decided that the licensee owed no duty to call other agents

Easements – Obsolete or Not – Property Law Act #358

Legally Speaking

By Gerry NeelyB.A., LL.B. Section 35 of the Property Law Act provides for the cancellation of an easement if it is obsolete due to changes in the character of the land, the neighbourhood or other material circumstances. Without this section, the following easement interests, which were the focus of two recent cases before the British Columbia Court

Protected Land: Conservation Covenant Agreements #357

Legally Speaking

By Gerry NeelyB.A., LL.B. A number of licensees are active with local conservation groups. These individuals are dedicated to preserving the natural beauty of the province and the environmental, recreational and heritage values important to their communities. For example, one such licensee was instrumental in the incorporation of The Land Conservancy of British Columbia (TLC)

Life Lease Housing and Seniors (continued) #352

Legally Speaking

By Gerry Neely B.A. LL.B There are several models for life lease housing other than the one referred to in Legally Speaking 351. That model requires the landlord to refund the purchase price to a life tenant whose lease is terminated. Other models include the following: The tenant receives the refund of the purchase price

Life Lease Housing and Seniors #351

Legally Speaking

By Gerry Neely B.A. LL.B Life lease is a term for an alternative residence and ownership arrangement for seniors. The term has been growing in BC over the past ten years because of its appeal to seniors with shared interests and values. The typical arrangement involves a non-profit service club or church sponsoring the construction

Fire Damage Before Closing – Rights and Responsibilities of Buyer and Seller; Easement With or Without Motor Vehicles – No Parking on Easement Area #350

Legally Speaking

By Gerry Neely B.A. LL.B When a fire destroyed or damaged a house before the completion date for its sale, at common law the buyer had to complete the purchase and pay the contract price, unless the contract otherwise provided. For this reason, the Contract of Purchase and Sale includes Clause 16 which allocates risk

Duty of Good Faith to Complete Contracts #349

Legally Speaking

By Gerry Neely B.A. LL.B Lawyers used to feel they could confidently advise clients that, if the buyers failed to pay on the closing dates or sellers failed to deliver executed conveyancing documents by those dates, the contract could be terminated by the innocent party because of the “time is of the essence” clause. However,