Sueing

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

Commission, Receiver/Manager Can’t Be Sued Personally for Sale of Unionized Business, Seller Discharged Employees, Not Liable for Payment Made by Buyer to Settle Grievance #327

Legally Speaking

By Gerry NeelyB.A. LL.B. An agent who is given a listing of real property by a receiver/manager licensed under the Bankruptcy and Insolvency Act can confidently expect to be paid if a buyer contracts during the term of the listing to purchase the property in question and completes the purchase. Unfortunately, the agent with a listing from

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

Interest Calculation #95

Legally Speaking

By Gerry NeelyB.A. LL.B. Have you ever had a vague suspicion that the interest quoted to you on the pay-out of a loan was higher than it should be? However, your suspicions were lulled by the delivery by the mortgagee of an amortization schedule showing in detail the amount of interest charged to you over

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 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.

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.

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

Deposits #43

Legally Speaking

By Gerry NeelyB.A. LL.B. While it is not necessary to have a deposit in order to create a binding contract, having a deposit or even the promise of a deposit has proven to be beneficial to vendors where the purchasers have declined to proceed with their purchases. This can be equally as important to the

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

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

Special Circumstances for Listing Agents’ Commission #22

Legally Speaking

By Gerry NeelyB.A. LL.B. Since the subject of this column, which was requested by the Legislative Committee of BCREA, is one which raises more questions than it answers, it would be appropriate to start it by saying, “HELP WANTED – a reference to the report of a decision of a British Columbia Court which might

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