A Potpourri of Trivial Tidbits #183

Mar 01, 1992

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By Gerry Neely
B.A., LL.B.

In the tradition of the wisdom of Solomon is a case involving an owner who in the course of excavating for a house foundation, damaged the roots of a tree standing on the boundary line between his and the adjoining owner's property to such a degree that the tree died. The judge decided that each owner had an interest as tenant-in-common in the tree and that damage to 50% of the root system which led to the fatality was a trespass for which the owner was liable in damages of $2,000 payable to the adjoining owner for his half interest in the tree.

Section 59 of the Real Estate Act states that an original purchaser of a lot from a developer is deemed to have relied upon the Disclosure Statement so that if it contains a misrepresentation, the original purchaser can sue the developer. That same right of action against the developer is not available to a subsequent purchaser of the lot.

A condominium owner who ruined the rug in the lobby of the strata building in which he lived when bleach leaked from a box the owner had left on the rug, was sued by the strata condominium's insurance company to recover the cost of replacing the rug. His defense was Section 54 of the Condominium Act which directs the strata corporation to insure against fire or such other perils as are usually the subject of insurance. This section also provides that not only the strata corporation but also the owners are deemed to be included as the named insured on the policy of insurance which is in force under this section. The advantage of being deemed to be an owner under the policy is that no claim could be made against this owner. The question was whether leakage of this kind fell within the perils which the strata corporation should have insured.

The judge decided it was an obvious peril and the breach of the strata corporation's duty to insure for this peril relieved the owner from liability to repay the insurance company.

***

A woman who stored goods in a mini warehouse and who was in arrears of rent was awarded damages of $18,000 to compensate her for the sale by the owner of the warehouse of her goods at auction to net $500. The owner was entitled to sell to recover rent arrears, but his liability arose because he failed to give her notice or to advertise the auctioning of the goods, and the sale at such a low amount breached his duty to exercise the same care that a careful owner who had custody of similar goods in similar circumstances would have exercised.

And to the committees of the boards arranging the annual summer golf tournaments, read on. The organizers of the Alpine Potato Festival 18 hole tournament which was held on July 1, 1986 in Edmunston, New Brunswick didn't expect to end up in a New Brunswick Court of Appeal three years later because of their refusal to deliver an $18,000 Toyota to a golfer who scored a hole-in-one on the second hole. Or was it the 1lth hole or the 18th hole?

The problem for the lucky winner was that the course had nine holes and a shotgun start found him teeing off on the third hole. (For non-golfers, a shotgun start has nothing to do with encouraging slow players to play faster), (a non-golfer is the person who, when asked what his best shot is says, "a scotch and soda".) The hole-in-one occurred on the 18th hole he played which meant that the ball disappeared into the second hole of the first nine or the 1lth hole of the second nine.

The committee invoked local rules to deny the winner his prize. The local rules lacked clarity so that the court reviewed the Royal Canadian Golf Association Rules which required the holes to be played in their correct sequence. Somehow this was, interpreted to mean that it was the second hole of the course rather than the golfer's second hole which mattered.

The lesson is that any deviation from the R.C.G.A. rules which are permitted by those rules should be published and brought to the attention of the contestants to avoid litigation.

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