Mar 01, 2005

Title Insurance for Renovations Done Without Permits or Final Approvals; Hazardous Trees and Duty to Inspect #381


By Gerry Neely
B.A. LL.B.

While BC is fortunate to have the Torrens system as the backbone of its land title registrations, some risks not protected by the Land Title Act may be covered by title insurance.1

For example, undisclosed renovations by present or previous owners may not be obvious to a licensee or new buyer. If no permit was obtained, the buyer may only discover the renovations breached the building code when applying for a permit and discovering the breaches must be remedied.

There are conditions for coverage, including:

  • that renovations, which existed at the policy date, were done without obtaining the required building permit and the owner is forced to remove or remedy the breach, or can't use the structure for family purposes, and
  • where any search, as at the policy date, of local government records required in the normal course of a real estate transaction would have revealed the issuance of a building permit, but no final approval was obtained or there was an outstanding work order or deficiency notice.

These conditions are from a First Canadian Title Insurance policy. Similar coverage may be available from other policy providers. Buyers must weigh their circumstances against the cost of covered risks to determine whether payment of the premium is justified.

* * *

Liabilities arising from trees—such as mistaken or deliberate cutting on a neighbour's property to improve views or sunlight, trees blown down by high winds or roots encroaching on adjoining property—have been the subject of several columns.2 A recent decision examines a different question: whether the common law imposes a duty on landowners to have trees on their properties routinely inspected by an expert to determine if any are hazards.

A waterfront owner lost his dock when a large tree on his neighbour's property fell as a result of a disease that caused root and trunk rot. The tree grew at the top of a steep, forested slope and, while it was clearly visible from the neighbour's house, he was unaware of this defect because it was difficult to access. The repairs cost $35,000.

There was a difference of opinion between the expert witnesses called by each party as to whether the amount of foliage, the discoloured and raised bark and a ten-degree lean toward the dock were evidence of a hazardous tree. However, they did agree that only an expert would have been able to determine that it was diseased, which seems somewhat contradictory given their disagreement. Neither lawyer was able to find precedents containing facts similar to those in this case.

The cases they did provide dealt with trees whose branches hung over a lawn bowling club or were located beside a busy highway or street. In each case, injury from falling trees or limbs had occurred and the landowners were found liable for failing to inspect and call in tree service specialists. From these decisions, the judge found no duty on the part of owners of relatively inaccessible, densely forested land to hire experts to routinely inspect their lands.

The corollary to this is that landowners who live next to busy roads or homes or areas used by the public, and who have reasonable access to the trees on their properties, should inspect them for the signs of disease that justify obtaining expert advice.3

  1. Legally Speaking 321 to 323.
  2. Legally Speaking 112, 124, 173 and 183.
  3. McNee and McNee v. Northrop,SCBC, Vancouver Registry, Reasons for Judgment, February 18, 2004.

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