Liability

Third-Party Recommendations and REALTOR® Liability #504

Could a licensee be held liable for the poor performance or negligence of another professional such as a home inspector, contractor, or notary public, whom the licensee referred to his or her client? It depends. Factors to be considered include: whether the licensee conducted any due diligence into the competence or reputation of the referred

Environmental Liability #478

Legally Speaking

In Dolinsky v. Wingfield, oil from a leaky underground tank contaminated the property next door.1 When the affected property’s owner sued to recover clean-up costs, the court held several current and former owners of the source property liable. In this case, the properties were adjacent, with Ms. Dolinsky’s property downhill. Further downhill, beneath both properties, lay the

Being Sued is No Fun! #438

Legally Speaking

By Jennifer Clee We all know that being sued for allegedly failing to fulfill legal and/or professional responsibilities can be traumatic, but it can also be time consuming and consequently, expensive. A recent decision of our Provincial Court illustrates how legal proceedings involving relatively straightforward legal issues can morph into protracted and strenuous battles.1 The

Co-Lenders’ Personal Liability for Agent’s Misrepresentation #326

Legally Speaking

By Gerry NeelyB.A. LL.B. Raising financing for a specific project occasionally involves pooling the funds of a number of investors in a mortgage in favour of a limited company which is incorporated and managed by the persons who brought the project to the attention of the investors. An arrangement of this kind is often structured

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.

Caveat Emptor #218

Legally Speaking

By Gerry NeelyB.A., LL.B. For those of us who felt that court decisions had relegated the doctrine of caveat emptor to an earlier era, a recent case confirms that the doctrine is still alive to protect vendors, if the facts are right. In one case, prospective purchasers noticed cracks and a sagging floor during their

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

Negligence of House Inspector: Licensee’s Liability #140

Legally Speaking

By Gerry NeelyB.A. LL.B The answer to this question was given in a 1977 case in which a purchaser was concerned about the soundness of the structure and foundations of an old house he wanted to purchase. A salesman employed by the agency which had the listing, recommended to the purchaser a house inspector who

Soil Contaminated Sites #138

Legally Speaking

By Gerry NeelyB.A. LL.B. What do gas stations with underground tanks, sawmills, pulp mills, paint manufacturing shops, dry-cleaners, shipyards, truck parking yards for moving or fuel companies, junkyards, farms and 63 McClure Crescent, Scarborough, Ontario have in common? With the exception of 63 McClure Crescent, each is a potential site for soils contaminated by the

Soil Contaminated Sites [Continued] #139

Legally Speaking

By Gerry NeelyB.A. LL.B. A whole new growth industry is developing of scientists, engineers, law professors, lawyers, columnists, experts and others, around the pollution of the environment and the liability for doing so. An increased awareness by the public of environmental hazards which pose a risk to health, brings an increased risk to licensees who

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

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

Commission – Solicitor’s Liability for Payment; Garnishee Orders #92

Legally Speaking

By Gerry NeelyB.A. LL.B. The decision of an Ontario District Court Judge is good news for licensees but bad news for solicitors who are too dutiful in carrying out their clients’ instructions. A vendor had accepted an offer containing in the standard form of offer to purchase the following words: “the undersigned accepts the above

Foreclosure – Defence of Vendor/Mortgagor Against Deficiency Claim #72

Legally Speaking

By Gerry NeelyB.A. LL.B. The Real Estate Council has recently advised licensees of the desirability of advising a vendor of the vendor’s continuing liability to a mortgage lender under a mortgage granted by the vendor on property that is then sold to another person who agrees to assume the mortgage payments. The decrease in property

Builders Liens #70

Legally Speaking

By Gerry NeelyB.A. LL.B. Column #69 which discussed a Builders Lien clause resulted in questions which indicate that there is some confusion as to when liens may be filed and lien holdbacks may be paid out. Those licensees who were surprised to discover that a lien could be filed against property even after title of

“And/or Nominee” and “And/or Assignee” #65

Legally Speaking

By Gerry NeelyB.A. LL.B. A request has been received for an update of the current law relating to the use of the above phrases in the preparation and enforcement of interim agreements. Column No. 3 written March, 1981, referred to a case where an offer to purchase made by “the undersigned, Century 21 Real Estate

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

Royal Bank Appraisals; Personal Liability on Company Cheques #61

Legally Speaking

By Gerry NeelyB.A. LL.B. From time to time suggestions are made for topics for Legally Speaking columns and, if they are of general interest and haven’t been covered before, we will try to use them. One suggestion comes from the Vancouver Island Real Estate Board and it concerns a memorandum sent to all Royal Bank fee appraisers.

Legal Advice – The Pitfalls of Giving #59

Legally Speaking

By Gerry NeelyB.A. LL.B. Adam entered his solicitor’s office with a writ in his hand and an expression on his face which his solicitor, as Adam’s old golfing partner, recognized. It was the “how did this happen to me” look that appeared on Adam’s face when, after playing faultless golf for seventeen holes, he sliced

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

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

The Case of the Absconding Apparent Attorney or, Whose Liability #45

Legally Speaking

By Gerry NeelyB.A. LL.B. How would you decide which of two innocent parties, the vendor or the purchaser, should bear the loss which arose when the solicitor acting for the purchaser gave the real estate agent an n.s.f. cheque for the commission of $4,350.00, and then disappeared? By the agreement signed by the parties, the

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

Commission #24

Legally Speaking

By Gerry NeelyB.A. LL.B. “A 1980 decision in which licensees who did not have a listing were successful in obtaining payment for services rendered by them,”. . . illustrates that even in a slumping market for real estate, there are opportunities for a licensee to be of service and to be paid for doing so.

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