Resort Zoning; Condominiums – Bad Design Equals Refund; Property Disclosure Statement – Section 2M Doesn’t Include Past Infestations #335

By Gerry Neely
B.A. LL.B.

Your dream is to buy a vacation home at a resort such as Whistler. You can enjoy it with your family, return the favours of friends by giving them the use of it, and reward staff with a free week in the season of their choice. You calculate that you can cover the expenses with only four weeks of rentals in the peak skiing season.

At that point you should give your head a shake and seek advice about the uses permitted in the relevant zone. You may ask yourself why, when ownership rights include renting. Well, they may not in Whistler, with its residential, tourist, residential/tourist and commercial accommodations zones.

A quick read of the residential zone bylaw in which the home is located, would not make it obvious that rentals were prohibited. The judge who considered these facts came to that conclusion only after an examination of the bylaws for both the residential and the residential/tourist zones.¹

* * *

The owner of a brand new penthouse with high windows and superb views found that when the sun shone - as it occasionally does in New Westminster - the temperature rose up to 40 degrees Celsius. And that was with the vertical blinds closed.

The lack of cross ventilation prevented trapped heated air from escaping. The developer's remedy was to add more blinds to the windows, including the skylights, and to convert some windows so they could be opened. One expert said air conditioning was not a viable option.

The judge agreed with the owner's argument that bad design made the unit uninhabitable, and that the developer's proposed remedies were problematic. The owner wanted the reversal of the purchase and his money back. Since the law favours finality and certainty, this remedy is rarely given when the contract is complete.

One circumstance justifies rescission: where the buyer obtains something very different from that for which he bargained. In this case, the buyer expected to receive a new penthouse fit for habitation. The combination of the work to be done to remedy the problem (which would require the blinds in this view penthouse to be closed during daylight hours), and the uncertainty of the result, led the judge to conclude that the buyer was entitled to his money back.²

* * *

The present tense wording of section 2M in the Property Disclosure Statement, "Are you aware of any infestation by insects or rodents" made a difference to the result of a suit brought by buyers who discovered termites in the home they had just purchased. The sellers had answered "no" to this question even though, two years prior to the sale, they found termites and had them treated by a pest controller. The controller gave the sellers a 10-year warranty and made two inspections in the next year without finding any termite activity.

The issue was whether section 2M was a warranty that there had been no past infestations. The judge decided the present tense wording of the question required the sellers to say no more than they were not aware of the problem.

As a sidebar, the pest controller said termite activity is generally noticeable in the early spring and late fall. The Contract of Purchase and Sale and Property Disclosure Statement were signed in February and the buyers took possession in April. Sometimes timing is as important as location, location, location.³

	1.	Resort Municipality of Whistler v. Miller and Rivera, Reasons for Judgement, January 15, 2001, SCBC, Vancouver.
	2.	Cherris v. Bosa Dev. et al. Reasons for Judgement, February 28, 2001, SCBC, Vancouver.
	3.	Curtin v. Blewett,28 R.P.R. (3d) 115, November 14, 1999, BCSC, Kamloops.

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