Tel: 604-574-7431

Real Estate and Mortgage Lawyers in Surrey

Whether you’re up for buying a new house, or refinancing your mortgage, the lawyers at MacMillan Tucker & Mackay, Surrey, can help with real estate and mortgage related cases. We can assist you with the sale and purchase of contracts, legal documents, title examinations and reviews in a timely and cost-effective manner.


Browse through the below articles and learn about the real estate and mortgage-related cases.

IT’S THE LAW – By Tyler B. Dennis 

What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!

A Gruff Limitation?

The three Billy Goats Gruff (“Goats Gruff”) lived in Pitt Meadows on a property that was too small to provide them with enough grass to eat. In 2013 they purchased a property in Langley which had a greater abundance of grass. To purchase the property, they borrowed 1 million dollars from their friend Mr. Troll, who lived under the Golden Ears Bridge, and who operated a lucrative tolling business. Mr. Troll had a mortgage put on the property. The principal amount of 1 million dollars (the Principal) was payable “on demand” and until then the Goats Gruff only had to pay interest on specific dates starting December 01, 2013. 


The Goats Gruff failed to make their first payment on December 01, 2013 but no action was taken by Mr. Troll. Subsequently, the Goats Gruff continued to fail to make payments through to 2016. Mr. Troll finally demanded payment in November 2016 and filed a petition for repayment and foreclosure in December 2016.

The Goats Gruff argued Mr. Troll was statute barred from taking legal action because the two-year limitation period had expired. The Goats Gruff claimed the limitation period had begun when they failed to make the first payment on December 01, 2013. Further, they claimed that the limitation period began when the loan was made and that a demand obligation did not exist in the mortgage.

If You Were The Judge, How Would You Decide?

The Judge ruled that under the Limitation Act 2012 the two-year limitation period required to bring a legal action begins to run either for a demand obligation, when the borrower fails to make payment after the demand is made by a lender, or for a claim on security (such as a mortgage on land) when the specified date set in the security document passes and no payment is made. The Judge ruled that Mr. Troll’s mortgage included a covenant to pay the Principal and a security debt through the scheduled interest payments.

The Judge further ruled that the limitation period on the security debt (the interest payments that had accumulated) had begun when the Goats Gruff failed to make the first payment on December 01, 2013 and therefore the period to bring action had expired on December 01, 2015. However, the limitation period to bring an action on the covenant to pay the principal, (which was stated as “on demand” in the mortgage), had only started when Mr. Troll made his demand for payment in December 2016. Therefore, Mr. Troll was within the limitation period to bring his foreclosure action.

The Judge ruled that Mr. Troll had the right to collect on the principal amount owing as that was within the limitation period, but he did not have the right to collect on the interest accumulated. A Gruff limitation it was for Mr. Troll.

Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By Cassandra Douma

What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern similar to some presented in court and assessed by judges. Test your judgment!

Don’t Make A Costly Mistake!

Barry Buyer was in the market to purchase a new home. Susy Seller had her home on the market, and after Barry viewed the property he made an offer which Susy accepted. The contract was subject to Barry obtaining financing and an inspection within 60 days. The contract also incorporated a Property Disclosure Statement (“PDS”) that Susy had completed about the condition of the property. One of the questions on the PDS asked if the Seller was aware of any structural problems with the building, to which Susy answered “No.” The PDS also contained a standard term urging the buyer to carefully inspect the property or hire someone to do so. 


Barry subsequently removed subjects. He never hired anyone to conduct an inspection but was confident that he would have noticed any issues on his many visits to the property.

When he took possession of the house, Barry noticed the deck was somewhat spongy. He was concerned about this, so he hired a property inspector to take a look. When the inspector came, he looked at the whole property and found that the deck was indeed rotting and would need to be replaced. The inspector further found that there were structural issues with the house which would be quite costly to fix.

Barry decided to sue Susy for the costs of making repairs to the deck and fixing the structural issues.

If You Were the Judge, How Would You Decide?

The common law doctrine of caveat emptor or “buyers beware” applies to the sale of land in BC. Any problems with the property that are discoverable by conducting a reasonable inspection and making reasonable inquiries are known as “patent defects”. In a sale of property, patent defects should have been discovered by a buyer, and a buyer cannot claim any compensation from the seller unless he can show fraud or active concealment by the seller. Here, the state of the deck would be considered a patent defect, and Barry cannot claim compensation for something that he should have noticed.


The structural issues may be considered to be a “latent defect,” meaning one not discoverable by reasonable inquiry. For Barry to be compensated for the structural issues, he would have to prove that Susy knew these issues existed and did not tell him about them when she was obligated to. It would be difficult for Barry to rely on the PDS, as it only asked if Susy was “aware” of any such problems. Unless Barry can show that Susy knew about the problems, Susy will not have to compensate him for these defects either.

Cassandra Douma is an articled student who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By Tyler B. Dennis

What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!

Little Red Riding Hood vs. The Big Bad Wolf

Little Red Riding Hood (“Little Red”) and her Grandma owned a house in rural Cloverdale that they were renting out to the Big Bad Wolf (“Wolf”). During a property inspection by Grandma and Little Red they found that unknown to them, Wolf had three sub-tenants, the Three Little Pigs, living with him. 


Little Red and Grandma notified Wolf of his eviction, had the Three Little Pigs removed, and the locks changed. Wolf brought an application to the Residential Tenancy Branch (“RTB”) to challenge the eviction. Little Red and Grandma filed a counter-claim with the RTB seeking damages and an order of possession against Wolf.

A RTB hearing was held before RTB Arbitrator Hunter (the “Hunter”). Wolf claimed to have never been served with the counter-claim or its materials and therefore was unable to prepare. The Hunter ruled service had been properly given by registered mail based solely on a tracking number provided by Little Red and Grandma. After the hearing took place, the Hunter ruled that a settlement had been reached to have Wolf move out and to have his possessions returned. Wolf applied for a RTB review of the Hunter’s decision, on the grounds that it was unfair because he had never been served with any of the counter-claim materials and had been unable to prepare for the hearing. The RTB review of the Hunter’s decision denied Wolf’s request for a new hearing because he had not submitted it in time. Wolf then brought a petition before the Supreme Court of British Columbia (“BCSC”) to review the entire RTB process.

If You Were the Judge, How Would You Decide?

The Judge ruled that by relying only on the tracking number as evidence of service of the counter-claim materials on Wolf, the Hunter had failed to provide Wolf with the opportunity to review the material and to prepare an appropriate response to the counter-claim. The voluntary settlement the Hunter stated had been reached was the result of unfair circumstances for Wolf and the Judge ruled an adjournment of the hearing should have been given to Wolf, so he had time to prepare an informed response.

Further, the Judge found the RTB review decision had been improperly reached because it relied upon the basis that the Hunter’s decision had been reached correctly and in a fair manner. The Judge ruled that the Hunters decision and the RTB review decision had been reached unfairly. The Judge overturned both decisions and Wolf was granted a new RTB hearing, much to the frustration of Little Red and Grandma.

Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

IT’S THE LAW – By George Gunnink

What would you do if you were the judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by judges. Test your judgment!

Home Sweet Home?

All Mary and her husband wanted was a place to live for the rest of their lives. That’s what they told Mary’s daughter and son-in-law when they gave the kids $150,000 to help them to buy a home with a suite that Mary and her husband could live in. At the time, they decided that they did not want to go on title to the home and, trusting that they would all get along, they did not put their agreement in writing. The arrangement worked out for about nine years, during which Mary and her husband also assisted the kids with $28,500 worth of various household related expenses. However, sometime after Mary’s hubby died, Mary and the kids had a falling out and Mary decided to move out. The kids found a renter for the suite. Unhappy that she now had no home and was out $150,000, Mary sued the kids for what she felt was her proportionate 29% share of the value of the house – which had, of course, gone up considerably in value. The kids did not agree that she was entitled to anything. In their view, the $150,000 was pre-paid rent for about ten years, so she got what she bargained for. Why should they pay because she decided to move out? The courts would have to sort this one out.


If You Were the Judge, How Would You Decide?

A judge initially found that Mary should get nothing except the $28,500 that she paid in household expenses. Mary was not too pleased with this, and appealed the decision to the Court of Appeal. The Court of Appeal partly agreed with the trial judge, finding that Mary never had an expectation that she would get a return on her investment in the home. However, the Appeal court did find that Mary bargained for a place to live rent-free for the rest of her life, something that she did not get. So, the appeal judges told the parties to figure out between them what the value of lifetime rent-free living would be for Mary in a suite of the type that was in the home. And, if they could not come up with an agreement, they could come back to court and have a judge determine the value. 

George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.

MacMillan Tucker & Mackay

5690 176A Street

Surrey, BC V3S 4H1


Tel: 604-574-7431

TF: 800-658-7974

E: inquiries@mactuc.com

Hours

Monday - Thursday 09:00 AM - 05:00 PM

Friday 09:00 AM - 04:30 PM

Service Area

Surrey, Langley, Delta, White Rock, Burnaby, Richmond and Vancouver

Stay connected

Send to a friend

Send the url of this page to a friend of yours

Copyright MacMillan Tucker & Mackay 2019 - Legal
Created by

Legal notice