Damages

Broker’s Responsibility to Have Office Policies to Help Representatives Deal With Water Problems; Contract to Enter Into a Contract Is Unenforceable #382

Legally Speaking

By Gerry NeelyB.A. LL.B. An Alberta decision about a broker’s failure to establish policies for representatives to deal with known water problems in homes constructed by a developer in a given area reflects the high value of local knowledge. The broker’s problem started when a new licensee, who had never shown a house by herself,

Goodbye Salespersons, Nominees and Agents; Paragraph 2(f) of the PDS—Building Permits, Licensee’s Standard of Care and Material Latent Defects #379

Legally Speaking

By Gerry NeelyB.A. LL.B. To familiarize ourselves with the name changes for the classification of licensees in the new Real Estate Services Act, Legally Speaking columns from now on will describe salespersons as representatives, nominees as managing brokers and agents as brokerages. * * * A managing broker’s lament about the consequences of a seller who falsely answered

Damages, Licensees’ Purchase of Property Customer Wanted, No Explicit Agency Relationship, Fiduciary Duty; Leaky Condo, Buyer Acted Unreasonably in Relying Upon Property Disclosure Statement #336

Legally Speaking

By Gerry NeelyB.A. LL.B. It should be obvious that licensees cannot purchase property they know their clients want. If licensees are uncertain whether an agency relationship has been created by conduct, they must take all necessary steps to satisfy themselves that the buyers have abandoned their interests in the property, before offering to purchase it.

Purchaser's Knowledge of When Approval of Financing Given; Criminal Rate of Interest; Is an Application to Discharge a Mortgage Sufficient Evidence of Clear Title? #194

Legally Speaking

By Gerry Neely B.A. LL.B What are the legal consequences for a purchaser whose Contract of Purchase and Sale was subject to raising a mortgage by October 19, 1990, when the purchasers were not made aware that the mortgage had been approved by that date. The purchasers contracted to use their best efforts and it

Commission Cases #189

Legally Speaking

By Gerry Neely B.A. LL.B The right of an agent to a commission arose in a case where the vendor refused to complete a sale because just two days prior to closing, the purchaser substituted a nominee company for himself as the purchaser of the vendor’s property. The vendor on the afternoon of the day

Licensees' Duty to Know Basic Municipal Bylaws #187

Legally Speaking

By Gerry Neely B.A. LL.B The decision of the city of Cranbrook to extend its boundaries led to a lawsuit against the owner of a small vacant lot and the listing and selling agents involved in its sale to a purchaser who found that the bylaws of the city prevented him from building a home

Area, Mistake Discovered After Closing #157

Legally Speaking

By Gerry Neely B.A. LL.B A vendor innocently misrepresents the area of his lot as 10 acres when it is only six acres. If the purchaser relied upon this misrepresentation and discovered the mistake BEFORE completing his purchase, the probability of the purchaser being able to repudiate the contract is high. That probability may be

Reference: The “72” Hour Clause #141

Legally Speaking

By Gerry NeelyB.A. LL.B. The time clause, which may be whatever number of hours the parties agree upon, is a useful tool for negotiating conditional offers but it can create problems when notice of an acceptable offer made by a second purchaser cannot be delivered promptly to the first purchaser. The first reported case of

Garden Removal – Damages; Oral Revocation of a Counteroffer #137

Legally Speaking

By Gerry NeelyB.A. LL.B. A Victoria couple’s love of their garden led them to take it with them when they moved. Its absence was not noticed at first by the purchasers, who had taken possession on a dreary rainy January day. However when the weather cleared, as it occasionally does in Victoria, the pockmarked shrubless

The Stakeholder Provisions of Section 48 of the Real Estate Act, and the Method of Dealing With a Deposit Where There Is a Dispute Between Parties #135

Legally Speaking

By Gerry NeelyB.A. LL.B. The stakeholder provisions of Section 48. of the Real Estate Act are so well known to agents that the disposition of the deposit where there is a dispute between the parties is routinely dealt with. A recent decision supports a reexamination of part of the method suggested on page D-15 of the Professional

New Home Contract – Damages for Incomplete or Deficient Work, and for Stress #132

Legally Speaking

By Gerry NeelyB.A. LL.B. The plans were for a home with unusual design features to be constructed by a competent contractor experienced in the construction of standard design homes only. The home was to be built for a demanding client who expected very “high” quality workmanship from a contractor who intended to provide “good” quality workmanship. Cost was a

Breach of Duty and Fraudulent Misrepresentation #129

Legally Speaking

By Gerry Neely B.A. LL.B Termites, latent defect, non-disclosure, breach of duty, fraudulent misrepresentation, and all occurring in Toronto. A young couple purchased a home in an area of termite infestation which had started about five years prior to their purchase. They were aware of this problem because an earlier conditional offer made by them

Bank Foreclosure – Customer Rights; CMHC Guarantee – Negligence #114

Legally Speaking

By Gerry Neely B.A. LL.B Financial institutions often demonstrate a casual if not contemptuous disregard for requests for pay-out statements or delivery of an executed discharge of a mortgage. While they are quick to demand payment where default occurs, or interest if payment is delayed, they are not as quick to provide statements or discharges.

Landlord's Liability – Leased Premises #109

Legally Speaking

By Gerry Neely B.A. LL.B What do the Province of British Columbia, the Municipalities of Enderby and Chilliwack, Hudson’s Bay Company, Safeway, Grouse Nest, Royal Canadian Legion and landlord have in common? They have been sued under the Occupiers Liability Act by someone injured on premises over which they had a responsibility to ensure that

Appraiser and Real Estate Licensees – Question of Liability #105

Legally Speaking

By Gerry Neely B.A. LL.B John and Joan were looking for revenue property which they found in 1980 thirteen miles east of Smithers Iying between the Yellowhead Highway and the Bulkley River. In addition to the house they intended to occupy, the parcel of land contained eighteen mobile home pads and a recreational camping ground

Leases #93

Legally Speaking

By Gerry NeelyB.A. LL.B. Unless you are a property manager and actively involved in residential leases, the oddities of the Residential Tenancies Act, once known to you, may now be forgotten. This could apply particularly to a fixed term house lease, say of 12 months which as everyone knows, automatically expires at the end of the

Lease, Agreement To – Void for Uncertainty #85

Legally Speaking

By Gerry NeelyB.A. LL.B. Lance lay on the chesterfield, his headache just beginning to respond to his wife’s soothing cool hand on his forehead. The cause of his headache – a three-day trial and a judgment that was a blow to Lance’s pride. You see, Lance thought of himself as an expert in leasing property,

Commissions – Listing Agreements for Court Ordered Sales #82

Legally Speaking

By Gerry NeelyB.A. LL.B. A recent decision in an action which is likely to go on for some time involves an owner of a foreclosed property that was sold by Court Order, who has sued the lawyer who was advising him throughout the foreclosure proceedings. The basis of the action is that the lawyer consented

Property Manager’s Liability for an Assault Upon a Tenant #79

Legally Speaking

By Gerry NeelyB.A. LL.B. A case involving an assault upon a tenant will be of interest not only to property managers and owners of rental properties, but perhaps also to Strata Corporations. The facts involve the rape of a tenant by an employee of the Company managing the property for the owners. The police concluded

Salespersons’ Duty to Obtain Highest Price – Part 2 #75

Legally Speaking

By Gerry NeelyB.A. LL.B. You have listed for sale a house, to be described in the ad as a handyman’s special, which is located on a heavily-trafficked road in the middle of two blocks of mixed residential tenancy and low profit non-conforming commercial uses. Over the past ten years, repeated attempts to rezone the area

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.

Nonfeasance or Misfeasance – A Gratuitous Promise #58

Legally Speaking

By Gerry NeelyB.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

Commission Dispute Between Agent and Salesperson #34

Legally Speaking

By Gerry NeelyB.A. LL.B. A salesperson’s right to payment of a commission or of a bonus earned during his employment, but not paid before the salesperson left the agent with whom he was employed, has been examined in several cases. In the first case, after an amicable parting, the agent considered that some of the

Solicitors Conflict of Interest Rules Affecting Vendors #33

Legally Speaking

By Gerry NeelyB.A. LL.B. Column No. 26 discussed the increasing number of successful damage actions brought against lawyers by vendors in transactions where the lawyers in question considered that they were acting for the purchasers only. These actions were successful because the Courts held that in the particular circumstances, the lawyers owed a duty of

Licensee’s Authority to Bind His Principal #30

Legally Speaking

By Gerry NeelyB.A. LL.B. Two recent decisions illustrate the extent to which a licensee can create a binding contract of sale by a vendor, in circumstances where the vendor argued that the licensee had acted without authority. In the first case, a purchaser made an offer through the selling agent to purchase the vendor’s house

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

Clauses in the Offer to Purchase #8

Legally Speaking

By Gerry NeelyB.A. LL.B. The Offer to Purchase used by the Multiple Listing Service of the Victoria Real Estate Board contains the following clauses:” . . . Balance of cash payment to be deposited in trust by the purchaser by 5 p.m. on ____________,19__. Balance of cash payment to be made to the Vendor and

Licensees’ Duty to Disclosure of All Facts to His Principal #1

Legally Speaking

By Gerry NeelyB.A. LL.B. The selling agent brought an offer to the listing agent for $85,000.00 on September 26, 1977, which was accepted by the vendors, subject to their obtaining a release of a prior offer by September 29th. The release was obtained, the contract became binding and on September 30, 1977, the selling agent