Court of Appeal

Old Is Not Necessarily Obsolete #480

Legally Speaking

On occasion, buyers become interested in properties that are subject to historical easements, some over one hundred years old. The Property Law Act provides that a court may cancel an easement where the easement is “obsolete.”  Some buyers, and occasionally their advisors, assume that anything old must, for that reason alone, be obsolete and proceed

Licensee’s Duty to Know Effect of Municipal or Other Governmental Land Use Laws #380

Legally Speaking

By Gerry NeelyB.A. LL.B. The decision in Legally Speaking 379, that the representative had a duty to know the relationship between the building code and municipal bylaws concerning inspections and permits, is one of several decisions examining circumstances where the representative had a duty to know municipal bylaws. Here are three more examples. A representative advertised that

Negligence – on the Base Path – Play Ball (Carefully) #315

Legally Speaking

By Gerry NeelyB.A. LL.B. With so many licensees involved in recreational team sports, such as softball, hockey or basketball, the question of the liability of a person who injures another during the course of a game may be of some interest. This was discussed in a BC Court of Appeal decision of a softball game.

Reasons for Judgement on Another Offer #173

Legally Speaking

By Gerry NeelyB.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

Interest – The Criminal Illegal Rate #151

Legally Speaking

By Gerry NeelyB.A. LL.B. In times like these we might feel that high interest rates are a crime, but they don’t become a crime under the Criminal Code of Canada until the effective annual rate exceeds 60%. Since a rate of 59% per annum baldly stated in a loan agreement would make even the most

Locked-in Mortgage – No right to prepay #84

Legally Speaking

By Gerry NeelyB.A. LL.B. There must still be some high interest mortgages in force because I have received several calls from licensees asking for an update of columns 38 and 39 in which the question of whether or not a locked-in mortgage could be prepaid before maturity was discussed. As you will recall, the opportunity

Section 30 Real Estate Act #78

Legally Speaking

By Gerry NeelyB.A. LL.B. This is the section that prohibits payment of any commission or other compensation to any unlicensed person for “acting or attempting or assuming to act, as an agent or salesman.” BCREA has been asked whether payment of a tip for a tip that leads to a listing, is a breach of

Damages for Breach of Contract – Avoided or Reduced #64

Legally Speaking

By Gerry NeelyB.A. LL.B. Usually a judge will not assist a person who is in breach of contract, to avoid the consequences of that person’s default. One would expect this to be particularly true where the contracting parties agreed that the default of one party would result in “pre-estimated” damages becoming payable to the other

Damages in Lieu of Commission #62

Legally Speaking

By Gerry NeelyB.A. LL.B. The advantages of a listing agreement which fully describes the basis upon which a commission is earned and the obligations of the owner toward the listing agent, in order to support a claim for commission or for damages in lieu of commission, are illustrated by the facts of the following case.

Offer or Option – Chapter 2 #63

Legally Speaking

By Gerry NeelyB.A. LL.B. Column No. 57 discussed at length the problem of deciding whether a condition in an offer to purchase is not what is commonly referred to as a true condition precedent, but rather creates an option which must either be under seal or for which consideration must be given to prevent the

Offer or Option #57

Legally Speaking

By Gerry NeelyB.A. LL.B. The following are all abbreviated examples of the usual “subject to” clauses to be fulfilled by a purchaser, right? “Subject to approval of purchase price and terms by (name of the president of the purchasing company was added here). . . “1 “Subject to my inspection and approval of premises. .

Guarantees #51

Legally Speaking

By Gerry NeelyB.A. LL.B. The fall in real estate values has made the security held by financial institutions of somewhat dubious value with the result that the number of Court actions against guarantors to recover deficits owed by principal borrowers has increased sharply. This is bad news for guarantors since the form of guarantee used

Due Diligence Irrelevant; Time Is of the Essence #36

Legally Speaking

By Gerry NeelyB.A. LL.B. A number of decisions in the past few years have emphasized the necessity of recognizing the commercial reality which leads to the formation of the agreements entered into in the real estate industry. As one Court stated, if all interim agreements to purchase were to include all of the details that

Damages, Deposits; Separate Legal Representation for Vendors #26

Legally Speaking

By Gerry NeelyB.A. LL.B. In an Ontario case which arose because of a purchaser’s refusal to close a real estate transaction, the vendors were awarded S5,000.00 general damages for the “vexation, frustration, distress and anxiety, caused solely by the failure of the Defendants (Purchasers) to complete this transaction upon the date agreed upon.” This was

Land Title Office Records and the Highways Act #27

Legally Speaking

By Gerry NeelyB.A. LL.B. A purchaser entered into an agreement for the purchase of land adjoining the highway which, according to his search of title in the Land Title Office, was of a certain area. Subsequent to the completion of the purchase, a survey revealed that the actual area was twenty five per cent less

Removal of Conditions and the Law and Equity Act #17

Legally Speaking

By Gerry NeelyB.A. LL.B. An offer to purchase the assets of a hunting and fishing lodge, was subject to a number of conditions, one of which was the following: “Subject to obtaining financing, provided that this subject clause shall be removed on November 30th, 1975.” It appears from the decision of the Supreme Court of

Understanding Stock Clauses #5

Legally Speaking

By Gerry NeelyB.A. LL.B. In reviewing lengthy legal documents, we may often concentrate on the meat of the agreement (the payments, the rents, the interest rate, etc.) and cast only a fleeting glance at the clauses which are variously described as the stock clauses, the fillers or just “all that bumpf”. In doing so, we