Listing Contract - Cancellation and Relisting; Discharge - Ministry Of Highways - Attempt to Reserve Property for Future Highway Use #280

By Gerry Neely
B.A. LL.B

Column #279 discussed the cancellation of a listing, which cancelled the holdover clause and the practice of cancelling an MLSO listing of property, which has been on the market for a number of days to give the listing a fresh appearance.

However, there is more to this issue, as the following scenario indicates. A seller and salesperson agree to cancel a 60 day listing and then relist the property for a further 60 days. During the first listing period, the salesperson had shown the property to a potential buyer who seemed to be interested, but did nothing. The property is not relisted a third time.

In the month following the end of the second listing, the buyer approaches the seller directly and a sale is made within the second holdover period. The seller says sorry, no commission, because during the second listing the buyer was neither introduced to the seller nor shown the property. That occurred during the period of the first listing, a listing cancelled by the second listing. The seller's argument would succeed, if the decision of the judge referred to in the 1984 case discussed in Column #54 is followed.

Where the parties agree to a cancellation, but not to a relisting, then a licensee should consider not an outright cancellation, but instead the modification of the listing contract. The listing agent would release its exclusive right to list the property, giving the seller the right to deal with the property, before the end of the listing.

The seller would release the listing agent from the duties owed to the seller and acknowledge that paragraph 5(b)(ii), the holdover clause, and paragraph 6 dealing with the assignment of remuneration would continue to be binding upon the seller.

To further protect themselves, a licensee who cancels and relists should alter the second listing contract to provide that commission is payable upon any introduction or showing of the property that occurred during the period the first listing contract was in force.

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For those who suspected that the Ministry of Highways takes more land than it can use, to be set aside for future road purposes that may or may not take place, the following case provides proof of that suspicion, as well as a remedy for the affected property owner. A Maple Ridge developer owned land within 800 metres of the intersection of the Lougheed Highway and 232nd Street in Maple Ridge.

Section 57(2) of the Highway Act requires the approval of the Minister before the adoption of a zoning bylaw, which applies to land or improvements within a radius of 800 metres of the intersection of a controlled access highway with any other highway.

In order to obtain approval by the municipality for zoning of a part of this land to permit residential townhouse construction, the developer registered a restrictive covenant against his title in favour of the province of British Columbia.

The developer subsequently applied under Section 31 of the Property Law Act for an order that the restrictive covenant was unenforceable, because Section 57 could not be used by the Minister to reserve land for future highway development, which was unrelated to the intersection itself.

There was ample evidence of the Ministry's intention to retain the power to restrict further development of the developer's land, because it might be required as part of a corridor for a proposed highway to a proposed bridge crossing the Fraser River.

The judge agreed that the restrictive covenant had little to do with protecting the intersection and concluded that the restrictive covenant was invalid, because the Ministry used Section 57 for a wrongful purpose. In addition, since the future use was not approved and was unfunded, the judge considered the Ministry's plans to be so speculative that he ordered the restrictive covenant to be discharged under Section 3 1.

If its plans were more certain than they appeared to be, the Ministry had the option of purchasing the developer's lands, as it had purchased other lands in the proposed corridor. ¹

1.

Maple Ridge Projects Ltd. v. British Columbia, Reasons for judgment, September 5th, 1997.

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