Reasons for Judgement on Another Offer #173

Jul 01, 1991

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By Gerry Neely
B.A., LL.B.

The Court of Appeal has handed down reasons for judgment on another offer or option case. This one concerned an offer to purchase containing conditions which required the vendor to deliver copies of leases and other information to a purchaser for approval. The clauses gave the purchaser the right to be arbitrary in deciding whether to accept the information.

The clauses fall into the category of conditions which depend for their acceptance or rejection entirely upon the state of mind of the purchaser. As such, the contract was merely a standing offer by the vendor to sell the property to the purchaser, which the vendor could revoke prior to the removal of the conditions by the purchaser. Since no consideration had been paid by the purchaser to the vendor to keep the contract open until acceptance, no option was created which the purchaser might have been able to enforce.1

***

Trees, and not just those in the Carmanah Valley, continue to be a subject of controversy. In one case, an owner who wanted more sunlight for his pool, cut down 13 forty foot Hemlock trees standing on his neighbour's three acres of well treed land which was occupied by the neighbour for only one month of each year. One wing of the neighbour's house lost some privacy, but the market value of the property and its overall appearance were not affected appreciably.

The neighbour was entitled to have his land restored to its previous state, but within reasonable bounds. He wanted the trespasser to bear the cost of transplanting 13 evergreens, each 40 feet tall. That would have cost in excess of $185,000, would have taken up to three years in the preparation and care of the transplanted trees, without any assurances that all of the trees would survive. The judge decided that this was unreasonable, and awarded damages of $21,000 to provide for the planting of a sufficient number of 10-12 foot trees to restore the neighbour's privacy.

In addition, the owner was ordered to pay $1,000 per tree as compensation for the loss of privacy during the period it could take for the trees to grow to 40 feet, and $2,000 per tree as punitive damages for the high handed trespass of the owner.2

***

A land owner is liable for damages caused by a tree or limb falling as a result of disease or a defect, the existence of which the landowner knew or ought to have known. The Court of Appeal has examined the facts in a case where the question was whether the owner, "ought to have know of the danger."

The facts were fairly straight forward - Christina Lake, subject to sudden gusts of extremely strong squally wind, led to a woman being pinned to the ground by a tree falling from a cluster of seven or eight trees on her   neighbour's property, followed by the fall of another tree which caused further injury. She complained five or six months earlier to the neighbour that the trees bent so severely over the back of her house in earlier storms, which had uprooted trees in the area, that the trees created a hazard which should be removed. The neighbour's comment that it would cost $400 to remove the trees which he said (untruthfully), he didn't have; were contradicted by evidence from another neighbour that he topped trees and kept a watchful eye for trees at risk which might fall on his building.

"Ought to have known" was said to mean the knowledge a reasonable landowner would have who took the precautions necessary to prevent a hazard on his property from causing damage to his neighbours. Liability was imposed upon the owner even though the trees were not affected by any apparent or latent defects.3

  1. Mark 7 Developments Ltd. v. Peace Holdings Ltd., Court of Appeal, Vancouver Registry CA011107, January 29, 1991.
  2. Kates v. Hall, 53 BCLR (2d) 322, (B.C.C.A.).
  3. Hayes v. Davis, 54 BCLR 2nd 350.

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