Nonfeasance or Misfeasance – A Gratuitous Promise #58

By Gerry Neely
B.A. LL.B.

Occasionally a licensee may be asked during the period of a listing to do the owners a favour while they are on holidays by perhaps turning up the heat in the winter or watering the lawns in the summer. Instead of telling the owners that they are getting paid to sell the property and not to act as a caretaker for it, most licensees shrug their shoulders and ask where the thermostat or the outside water connection is located. Very little attention is paid to the liability arising from the: promise to do what the owner wants you to do. Who, if anyone, will pay if damage arises from the action or inaction of the licensee?

That question was asked by an irate owner of Dudley Durite, a licensee who had taken the owner's listing for 90 days. About 30 days into the listing, the owner had phoned to say that he was going to be away on holidays for four weeks and would dear old Dudley look after the watering for him. After all, it was rather a small job involving only half a hectare of ornamental gardens and an expanse of grass that could barely be mown in half a day on a riding mower. Dudley's heart sank as he realized that in the midst of a record heat wave he had simply forgotten his promise. He had been very busy acting as chairman of the downtown clean-up campaign in his home town of Apprazel, B.C., whose motto was "A Town without Comparables in B.C." In addition, the property had been so over-priced that he had advertised it once only without attracting any interest that might have reminded him of his promise. Upon reflection, he realized that he may have forgotten because he didn't like the owner who had been referred to him by Dudley's brother-in-law, the guy who never brought his own beer to the annual family reunion.

When action was commenced for $9,542.00 in damages for resodding the lawn and replacing the dead shrubs, D.D. went to his lawyer to tell him the facts and to obtain his opinion as to his liability.

"Well," said his lawyer, "as I understand it, you were promised nothing, received nothing and did nothing. You may have the perfect defense. I was reading a case recently in which a licensee, unlike you, Dud, did what he agreed to do. He had a listing on two condominiums at Whistler and he was asked by the owner in November to turn up the heat in them. In January a neighbour of the owner discovered extensive damages in one condo which was clearly the result of water damage arising from the melting of water in frozen pipes and fixtures. Since the thermostats were all set to zero when the damage was discovered, the owner concluded that the licensee had turned up the heat in the first condominium but had failed to do so in the second. The licensee's evidence was that he had turned up the thermostats in both condos and that since the key was available to all other licensees in the area, someone else must have turned them down in the damaged condo. If the judge was not prepared to accept his evidence, the licensee argued that he shouldn't be liable in any event. His promise to act was a voluntary act because it was made without consideration. In law, if someone undertakes to perform a voluntary act, that person is liable if he performs it improperly (misfeasance) but not liable if he neglects to perform it at all (nonfeasance)."

"To that argument," said the lawyer to D.D., "the owner responded by acknowledging that while that is a correct statement of the law, when the licensee turned up the heat in the first condo, he had commenced to perform the voluntary act and was therefore liable in damages. The Judge agreed that the licensee would have been liable if he had started to perform and then failed to follow up and finish the act he had promised to do. However, fortunately for the licensee, the Judge accepted his evidence that he had turned up the thermostats in both condos."

"So, Dudley, even if you were not to be paid, if you had gone to the house with the intention of turning on the water and changed your mind on the way, or if you watered once but not again in this heat wave, I would advise you to try to settle this claim. I would give you the same advice if payment had been offered to you. As it is, your nonfeasance combined with your gratuitous promise means no liability. This appears to be a rare instance, Dudley, when not getting paid, paid off."

(The results might have been different if in the discussions between Dudley and the owner leading up to the listing being given to Dudley, the owner had told Dudley that he would be away for four weeks and would Dudley look after the watering. In that case, the granting of the listing might constitute consideration to support the duty to water.)

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