Dec 01, 2004

Delay in Applying for Building Site Approval; a Loss of View; Commission Advance Loans #378


By Gerry Neely
B.A. LL.B.

The phrase "the race goes to the swiftest" describes the result of a dispute between the purchasers of two adjoining lots in a subdivision fronting on Columbia Lake. The lots were subject to a building scheme that required the developer's approval of the building site location and limited construction to a line that marked where the land dropped sharply to the lake.

One lot offered more of a panoramic view of the lake and surrounding mountains than the other, because the line jutted out toward a finger of land. The person who bought this lot from the developer resold it to buyers attracted by this feature. These buyers neither made their offer to purchase conditional upon getting approval to build on the jut-out, nor did they ask the developer if permission would be given.

In the meantime, the purchasers of the adjoining lot promptly proceeded to obtain plan approval and started construction. More than a year elapsed before the other owners applied for permission to build toward the jut-out area. The developer declined to approve this preferred location and offered a compromise that was influenced by the location of the house on the adjoining lot.

The jut-out lot owners then commenced an action for approval of their preferred location. Several issues were argued, including bad faith on the part of the developer. However, the owners' failure to protect themselves when they bought, and their delay in applying for approval, led to the dismissal of their action.1

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It's regrettable, but true, that the "lovely view" that led to the purchase of the dream home may shrink or disappear behind fast growing trees, a neighbour's nine-foot fence or an addition to the land. The homeowner who experiences this loses an important amenity and probably property market value.

While all landowners are entitled to the use and enjoyment of their property, what are the consequences of a neighbour interfering with the use and enjoyment of another's land? Apart from legislation, the common law provides a remedy for some intrusions by a neighbour. The question of balancing rights was at the root of an action brought by a homeowner whose previously unobstructed view was limited by her neighbour’s construction of a trellis.

The courts allow claims for damages and requests for injunctions for nuisances such as excessive noise, vibrations, smoke and odours and gases, which are the principal irritations between neighbours. However, the law does not give a remedy where the complaint is a loss of privacy or the loss of a view. The courts have held that giving a remedy for these issues would unduly restrict the neighbour's use and enjoyment of his or her land.2

If one is fortunate enough to be able to dictate terms, then a covenant by the neighbour not to infringe on view corridors is registerable against the neighbour's title.

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While it's commonly thought that a discharged bankruptcy is released from all previous debts, an exception occurs when the debt arose from false pretences or fraudulent misrepresentation. An Ontario company lent money as an advance against commission to a REALTOR who filed for bankruptcy and was ultimately discharged. The lending company sued for $23,697 on the basis of this exception.

In a lengthy, complicated judgment, the company lost because it was unable to prove the REALTOR was deceitful. Those who are interested in knowing more about the facts and law can find them in the federal Bankruptcy and Insolvency Act, Part 7, s.178(1)(d), (e) and the case cited below.3

  1. Murphy et al. v. Columere Park Developments et al., SCBC, Invermere Registry, Reasons for Judgment, May 8, 2000.
  2. Strachan v. Sterling and Sterling, BCPC, Vancouver Registry, Reasons for Judgment, May 14, 2004.
  3. Real Advance Ltd. v. Boutet, Ontario Superior Court of Justice, Reasons for Judgment, May 21, 2003.

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