Aug 01, 2004

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

Aug 01, 2004

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

By Gerry Neely
B.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 of strata units.

The facts in the cases discussed in column 371 were somewhat unusual. It's clear that a strata corporation can enforce a properly worded, non-discriminatory bylaw to restrict the installation of hardwood flooring.

* * *

What obligation does a seller have to repair damage to a roof that occurred between the date a Contract of Purchase and Sale became binding and the completion date? The seller sold a 70-year-old heritage home in Vancouver to a buyer whose first offer of $650,000 lapsed after a home inspector reported the roof needed to be replaced immediately. A second offer of $625,000 was accepted by the seller, in part because of the inspector's report.

The buyer drove by the property immediately after a severe storm and saw shingles on the ground. He called the seller's agent to have him ask the seller to get the roof patched, but the agent declined, saying the seller wouldn't pay for it. The roof sustained water damage and rain water leaked into one suite. The buyer completed the contract under protest on the advice of his lawyer, who said damages were insufficient to repudiate the contract.

The buyer patched the roof, repaired the damage to the suite and sued. He claimed that, since the home wasn't substantially in the same condition as when it was viewed, the seller was in breach of paragraph 8 of the contract. However, his claim was for the cost of replacement of the entire roof. This claim was rejected because the cost of patching and repairing the roof was too insignificant—compared to the purchase price—to be substantially different from the condition of the property when viewed. The buyer got what he had viewed—a house with a deplorable roof in need of immediate replacement.

The buyer also claimed the seller was responsible for any damage to the property until the completion date, and his failure to patch the roof was a breach of paragraph 14. The judge agreed the seller's responsibility was to have a temporary patch job done immediately and awarded damages to the buyer. The need to patch the roof was so evident that the judge did not refer to precedents to support his decision.1

Very few cases involving these "risk clauses" have been reported, and two are from Ontario. In one, a seller failed to disclose a sewer backup. His attempt to remedy the damage was inadequate and the buyer successfully sued to recover the cost of replacing all of the carpeting.2In the other case, the seller vacated the property three weeks prior to closing. After taking possession, the buyer discovered floor tiles had lifted in a recreation room. The seller was liable for the cost of replacing the tiles, even though he didn't know how the damage occurred.3

Does paragraph 14 impose an absolute liability on an owner to repair all damage, no matter how slight it may be? Not if the decisions in several cases, including one in BC, 4 are followed. They set up a test of reasonableness: "to keep the property in a reasonable state of repair" with "the same degree of care that a prudent owner would take."

  1. Brownlee v. Dang et al., BCPC, Vancouver Registry, Reasons for Judgment, February 10, 2004.
  2. Legault v. Adams, 3 RPR (2nd) 36.
  3. Lichtenberg v. Johnstone et al.,41 RPR 225.
  3. Wade v. Chilco Ranches Ltd., [1949] 1 WWR 239.

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