Removing Fixtures; Whim or Fancy #205

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

If section 441 of the Criminal Code of Canada were better known to tenants, less of them might trash rented premises. This section makes it an offense, punishable upon conviction for up to five years imprisonment, if an occupant of a dwelling house or other building deliberately and to the prejudice of a mortgagee or owner, demolishes or removes any part of the building or a fixture.

A charge under this section was brought recently against the owner of a home whose property was subject to a foreclosure action brought by a bank. The home was sold by court order and between the date of the sale and the date the purchaser took possession, the owner removed kitchen cupboards and other fixtures which the bank paid to replace. A jury convicted the owner of an offense under this section.

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Not all decisions establish a precedent for future cases as the B.C. Court of Appeal made clear this year in reasons for judgment which confirmed the decision of a Supreme Court judge in favor of an agent. The agent was entitled to a commission upon a binding contract of sale being signed. A binding contract was signed with a purchaser who failed to close on the due date, but who was willing and able to close a day later. The vendor refused to grant an extension.

In deciding in the agent's favor, the Supreme Court judge said that the vendor could have sold its property to the purchaser if it wished by granting the extension of time. It is clear from the judgments of both courts that the refusal to extend the time influenced the decision in favor of the agent because the Court of Appeal stated that "different circumstances in the failure of a purchaser to complete may give rise to a different result". (The Supreme Court decision is discussed in Column # 1 89.)¹

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Another decision in the "whim or fancy" or "option or offer" series of cases; this one from Alberta. The conditions involved a title review, appraisal of land and equipment and environmental assessment, all to the satisfaction of the purchaser. These are conditions that depend entirely upon the subjective state of mind of the purchaser. Their subjectivity is such that there is no test a judge can apply to determine whether the purchaser had used his best efforts to satisfy the conditions.

No contract binding upon either party is created until the conditions have been removed. In the meantime, the vendor may terminate the contract at any time. This type of contract has been referred to as an option, but unless consideration is paid by the purchaser to the vendor for the option, the option is invalid. (See Column #57 for a more complete discussion, and your course material for a short consideration clause.)²

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A resolution approved by a strata council was declared invalid because an absent member of the strata council voted by proxy. The authority in the Condominium Act which allows members of a strata corporation to vote by proxy, does not extend to voting by strata council members.³

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A listing contract with a company for the sale of its land, does not protect the agent holding the listing for a commission where the shares of the company instead of the land are sold. The company owns the land, not the shareholders and the shareholders and company are different persons.

An Alberta agent advanced the argument unsuccessfully that it was entitled to a commission because the sale of the shares was in substance a sale of the land .4 To avoid this result and to comply with section 46 of the Real Estate Act which requires an exclusive listing to be in writing, the licensee should have obtained two listings, one signed by the company for the sale of its land and the other signed by the shareholders for the sale of their shares (or one listing with the appropriate language and signatures.) Refer to Column #16 for a discussion of the limitation upon the sale of shares to non-shareholders of a company.

	1.	Western Mortgage (Realty) Corporation vs. Small World Holdingsu, 77 B.C.L.R. (2d) 325.
	2.	Harvey vs. Black, [ 1993], 3WWR527.
	3.	Vold vs. Strata Corp. 202, Supreme Court of British Columbia, Victoria, Reasons for judgments, February 15, 1993.
	4.	International Werner Technologies Inc. vs. Galaxie Syndicated Real Estate Ltd., [1992], Alta. D. 3783.1-01.

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