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, 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!
MOVING ON UP
Goldilocks had been in the market for a new property for some time. She had moved from Victoria to Cloverdale due to a transfer from her job as a porridge taster. She eventually found a townhouse that was owned by the Three Bears (Mama Bear, Papa Bear and Baby Bear). Goldilocks inspected the house and agreed to purchase it. She entered into a Contract of Purchase of Sale with The Three Bears. Once the purchase completed, Goldilocks took possession and moved in.
Months later, Goldilocks noticed numerous defects in the purchased property. She started an action in Small Claims Court (“Small Claims”) against the Three Bears for damages in the amount of $35,000, the maximum allowed in Small Claims. The Three Bears disputed that any defects existed and argued the claim was frivolous. To support her claim, Goldilocks had a contractor view the property. After doing so, she brought on an application seeking to transfer the matter from Small Claims to the British Columbia Supreme Court ("BCSC”), as she now claimed the defects amounted to over $45,000 in total damages. The Three Bears opposed this application.
If you were the Judge, how would you decide?
The Judge dismissed the application to transfer the matter from Small Claims to the BCSC. For a Judge to order a transfer, he or she must be satisfied, on the evidence presented by the applicant, that the monetary outcome of a claim (not including interest and expenses) may exceed $35,000. This applies only to a claim and not to the combined amount of any claim and counter-claim. The applicant does not need proof that the claim is worth greater than $35,000; they only need to prove on face value that the claim will exceed that amount.
The Judge found that based upon the evidence Goldilocks provided, which included only rough estimates with no monetary value and no copy of the Contract of Purchase and Sale for reference, she did not satisfy the Judge that her claim may exceed the $35,000 maximum allowed in Small Claims. The Judge sided with the Three Bears, and the request to transfer to the BCSC was dismissed. Goldilocks not only didn't get her transfer, but she had to go home to a cold bowl of porridge and a lumpy bed while the Three Bears enjoyed warm porridge and comfortable beds in their new home.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters, real estate and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment.
IT’S THE LAW – By Daniel Shim
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!
I HAVE THE HIGH GROUND IN LEGAL INTEREST!
Obi Won lived alone in a very big house in the busy City of Coruscant. His best friend, Anakin, broke up with his girlfriend, Padme, a few days ago and needed a place to stay. Obi Won loved Anakin like a brother. He invited Anakin to stay over at his house. Anakin accepted.
Obi Won was getting older. He had no family members. He wanted Anakin to own the house if Obi Won died first. He was advised that instead of writing a will, it would be easier to put Anakin as a joint owner of the house.
Obi-Won added Anakin as the joint owner of the big house, with the intention that Anakin would inherit the house when Obi-Won died. Anakin did not provide any consideration for the house. He also did not give any value in exchange for becoming the joint owner.
A year later, Obi Won was sick of the busy city life and wanted to move to a more remote and sandy place in Tatooine. Obi Won wanted to sell his house and use that money to purchase a place there with Anakin.
Anakin, however, hated sand. “It gets everywhere,” he said. Anakin was too comfortable living in the big house in Coruscant. Anakin claimed that because he was the joint owner of the house, Obi Won could not sell the house without Anakin’s approval. Anakin also added that even if the house was sold, Anakin would be entitled to half of the proceeds from the sale, and the rest of the money would not be enough for Obi Won to move to Tatooine.
Obi Won was devastated. He felt betrayed by his best friend Anakin, whom he loved like a brother. However, Obi Won believed that he still had the high ground in the legal interest of the house. He went to the Court to fight Anakin.
What would you do if you were the Judge?
The Court stated that Obi Won added Anakin as a joint tenant as a gift of the right of survivorship. Anakin accepted the joint ownership as a gift. He did not provide any consideration for the property. He did not provide any value in exchange for his legal interest in the property. The Court stated that Anakin’s legal interest should be considered gratuitous and that Anakin has no control over the house.
Furthermore, Obi Won had a clear, credible, and uncontroverted intention when he added Anakin as the joint owner of the house. Obi Won intended to retain all beneficial interests in the house during his lifetime. He only wished Anakin to inherit the house by right of survivorship on his death.
Obi Won cannot revoke the gift of the right of survivorship. However, Obi Won has the sole authority of the house while he is alive. The Court stated that in such a situation, Anakin is given the right to receive whatever was left of Obi Won’s interest in the house if Anakin succeeded in the “ultimate gamble” and survived Obi Won.
However, nothing remains of that right if Obi Won decides to sell the house in his lifetime. It is just as same if Obi-Won had given Anakin the gift of the right of survivorship in a bank account and then drained the funds during Obi-Won’s lifetime; there is nothing left to pass on to Anakin. In the same way, the gift of the right of survivorship in the house has no value if Obi Won sells the house.
Therefore, Obi Won has the right to sell the house in Coruscant by himself. He can keep all the proceeds of the sales for himself as well. He can purchase a place in Tatooine and enjoy his time in the sandy lands.
IT’S THE LAW – By Corey J. Bow
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!
Daniel Shim is an articled student in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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.
SQUATTING IN YOUR MOM’S HOUSE - UPDATE
Davie is 64 years old and has lived his whole life in his parents’ home. His Mom even cooked his meals well into his 50’s, until she started suffering from dementia and needed help herself. While living in his parents’ home, Davie did help with some things around the house, like yardwork and cleaning. He even helped his Dad with some major construction projects, like building a garage. Davie’s Dad looked after his Mom until he passed away and then Davie helped look after her. His Mom broke her ankle, was hospitalized for a year, and then released back into Davie’s care at home. On Davie’s watch she also broke her hip and returned to the hospital. She never returned home again as she passed away a few months later.
Davie has a younger brother, Nick, and an older brother, Chet, both of whom were able to leave home and get jobs. Chet became a successful businessman and even employed Davie for over 20 years. Davie never had any other work of note, never married, and never had kids.
Chet was the executor of Mom’s estate. Mom had left her estate to her 3 children. Her estate was comprised of about $1 million in investments and the subject $2 million dollar house.
After Mom passed away, Davie continued to live in the house. He conveniently could not find the original copy of Mom’s will and refused to leave the house. During this time, the real estate market was hot and it would have benefitted all 3 sons if the house was sold, and the estate divided amongst the 3 children.
Since Mom’s will could not be found, Chet applied to the court to administer the estate with no will. This would mean that the 3 children would still each receive 1/3 of the estate. Davie, however, suddenly found the original will, probably because he realized he could start a will variation claim if there was a will. That is what he did. He claimed the will was unfair to him and because of all his help to his parents and their alleged promises, he deserved the whole $3 million estate to the exclusion of his brothers.
What Would You Do if You Were the Judge?
The Court did vary the will, but to only a small extent. Davie was awarded about $100,000 for his several years of looking after his parents. Since the estate was valued at over $3 Million, this was a very small victory for Davie, but mostly a win for our clients, Nick and Chet.
Since Davie’s dad had promised to pay him about $25,000 a year for looking after them, the judge felt it would be fair to compensate Davie a little bit.
Because of the small victory, Davie is appealing the judgment. He apparently will never leave the house except by force.
Corey J. Bow is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!
MOVING ON UP
Goldilocks had been in the market for a new property for some time. She had moved from Victoria to Cloverdale due to a transfer for her job as a porridge taster. She eventually found a townhouse that was owned by the Three Bears (Mama Bear, Papa Bear and Baby Bear). Goldilocks inspected the house and agreed to purchase it. She entered into a Contract of Purchase of Sale with The Three Bears. Once the purchase completed, Goldilocks took possession and moved in.
Months later, Goldilocks noticed numerous defects in the purchased property. She started an action in Small Claims Court (“Small Claims”) against the Three Bears for damages in the amount of $35,000, the maximum allowed in Small Claims. The Three Bears disputed that any defects existed and argued the claim was frivolous. To support her claim, Goldilocks had a contractor view the property. After doing so, she brought on an application seeking to transfer the matter from Small Claims to the British Columbia Supreme Court (“BCSC”), as she now claimed the defects amounted to over $45,000 in total damages. The Three Bears opposed this application.
If You Were the Judge, How Would You decide?
The Judge dismissed the application to transfer the matter from Small Claims to the BCSC. For a Judge to order a transfer he or she must be satisfied, on evidence presented by the applicant, that the monetary outcome of a claim (not including interest and expenses) may exceed $35,000. This applies only to a claim and not to the combined amount of any claim and counter-claim. The applicant does not need prove the claim is worth greater than $35,000, they need only prove on face value that the claim will exceed that amount.
The Judge found that based upon the evidence Goldilocks provided, which included only rough estimates with no monetary value and no copy of the Contract of Purchase and Sale for reference, she did not satisfy the Judge that her claim may exceed the $35,000 maximum allowed in Small Claims. The Judge sided with the Three Bears and the request to transfer to the BCSC was dismissed. Goldilocks not only didn’t get her transfer, but she had to go home to a cold bowl of porridge and a lumpy bed, while the Three Bears enjoyed warm porridge and comfortable beds in their new home.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!
Helpful Hanna was upset, as people often are when they resort to the courts. She had been very involved in her Aunt Annie’s businesses for many years and had also helped Annie with a lot of her personal affairs. Hanna figured she should be getting something for her efforts and became concerned when Annie made arrangements to transfer many of her assets to other family members. Hanna also discovered that Annie had signed a will that left all her estate to another niece. Hanna felt it was worth picking a fight over, as Annie’s assets were worth many millions of dollars. So, she started a claim, alleging that Annie had agreed to leave the bulk of Annie’s estate to Hanna by her will. While there was no formal written agreement, Hanna presented three letters that she said were written by Annie, confirming the alleged deal. In this case, unusually, Annie was alive to defend the claim and presented evidence of her own claiming that two of the alleged letters were not written by her. Experts were called upon to analyze the letters for authenticity, independent witnesses were called upon, and the judge had to weigh the credibility of the parties during the trial.
What Would You Do if You Were the Judge?
The courts treat agreements to do something by a will with great caution. The judge, in this case, was no exception, and he rejected Hanna’s claim. Although Annie’s memory was somewhat weak, he found Hanna less credible, especially because her evidence was inconsistent with the testimony of Annie’s independent advisers. He also concluded that Hanna had type-written the second two letters (the first letter was handwritten by Annie but did not contain the terms of the alleged agreement, so it was mostly irrelevant) and either forged Annie’s signature on them or obtained her signatures surreptitiously. The judge did not find the expert evidence on the issue conclusive and was also skeptical because the content of the letters was more Hanna’s style than Annie’s. Hanna was disappointed with the result and appealed the findings of the Judge to the court of appeal. Three appeal court judges denied her appeal and confirmed the judge’s decision. One wonders whether Hanna regrets having started the action: she came away with nothing except increased family tensions and, one would presume, a hefty legal bill!
George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!
BUYER BEWARE!
The Pied Piper and his wife decided it was time to move from their home in Germany to Canada, after he was hired by a pest control company in Langley, B.C. The Piper family visited multiple homes and finally found a property and home they liked. The owner, Mr. Rat, provided them with a tour of the home. The Piper family liked the home and property so much that they agreed to purchase it.
A contract of purchase and sale was signed between Mr. and Mrs. Piper and Mr. Rat. A property disclosure form was included for Mr. Rat to fill out. It was incorporated into the contract of purchase and sale and specifically formed part of the contract. In the form, it asked a series of questions that Mr. Rat had to answer truthfully. One question dealt with the condition of the roof of the property. Mr. Rat disclosed the approximate age of the roof, to his knowledge, and stated that he was aware of no defects. The Piper family later inspected the property for a second time but did not have the property inspected by a professional home inspector. Instead, they relied upon the disclosures made in the property disclosure form and went through with the purchase.
After moving in, the Piper family noticed issues with the condition of the roof, appliances and other features of the home. After having a home inspector look over the property, they sued Mr. Rat for misrepresentation of the property and sought cancellation of the contract or compensation through damages.
If You Were the Judge, How Would You Decide?
The Judge stated that this case centred on the doctrine of caveat emptor or let the buyer beware. The Judge held that “in general, the purchaser bears the risk of defects in the quality of the property.” The Judge stated that liability will only transfer from the buyer to the seller when it was established the seller committed: a breach of contract, active concealment of the condition, misrepresentation of the condition, or implied a newly built home was habitable. The seller has a duty to disclose any defect that cannot be discovered by a reasonable inspection and if the property is unfit to live in.
In addition, the Judge ruled that when filling out a property disclosure form, the seller must correctly and honestly disclose their actual knowledge of the property, but that knowledge does not have to be correct. They need only put a buyer on notice of any problems they are aware of.
Applying these facts to the Piper case, the Judge ruled that Mr. Rat had properly disclosed the information and had been honest in the information given to the Piper family. Invoking the doctrine of buyer beware, the Judge dismissed the application of the Piper family and upheld that the sale of the property by Mr. Rat had been conducted properly and honestly. It was the responsibility of the Piper family to investigate further, and on this occasion, they did not get to lead the Rats.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!
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 at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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 at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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 at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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 at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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. How would you decide? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
Tough Sell
Seller Susie decided she wanted to move to a smaller home and put her house up for sale. Buyer Barry made an offer on Seller Susie’s house at the asking price of $950,000 which Susie Seller accepted. Buyer Barry paid the required deposit of $50,000 and removed the subjects included in the contract.
After taking these steps, property prices fell dramatically, and Buyer Barry no longer wished to purchase Seller Susie’s house. On the closing date, Buyer Barry had his lawyer tell Seller Susie that he would not be completing the purchase.
Seller Susie was very upset by this news, as she had everything in place to complete the sale. Seller Susie subsequently found new purchasers for her house but, unfortunately, the new buyers were only paying Seller Susie $800,000. After letters from her lawyer went unanswered, Seller Susie’s lawyer filed a claim seeking an order that Buyer Barry pay Seller Susie for her $150,000 loss on the subsequent sale of her home.
If You Were the Judge, How Would You Decide?
Once subjects are removed from a contract of purchase and sale for a property, the contract is considered binding and each party must carry out all their obligations included in the contract. The primary obligation of the buyer is to pay or ‘tender’ the agreed purchase price in exchange for which the seller will transfer or ‘convey’ the title of the property to the buyer.
As Buyer Barry failed to tender the remaining $900,000 of the purchase price on the completion date, Seller Susie is entitled to recover for any loss she suffered as a direct result of Buyer Barry’s breach of contract. The contract between Seller Susie and Buyer Barry included the standard clause relating to deposits which set out that if the buyer failed to pay the balance of the purchase price as agreed, the deposit would be forfeited to the seller on account of damages without prejudice to the seller’s other remedies.
On these specific facts, the judge ordered that the $50,000 deposit be released to Seller Susie and that Buyer Barry pay her the remaining $100,000 shortfall between the price he had agreed to pay and what Seller Susie eventually received. This is in line with the basic principle that the wronged party should be put as close as possible to the position they would have been in if the contract had been carried out. Seller Susie could likely also recover other expenses incurred due to Buyer Barry’s breach, for example, if Seller Susie had to take out a line of credit or bridge loan and incurred interest, the interest incurred would be recoverable.
Cassandra Douma is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!…
Old Bylaws and New Bylaws
Old MacDonald had a farm located just outside Victoria, B.C. In or around January 2019, Old MacDonald purchased a piece of bare land located outside Duncan, B.C., that was part of 27-unit bare land strata. Old MacDonald intended to construct a cannabis production facility on the newly purchased bare land. At the time of purchase, the zoning bylaws and strata corporation (the “Strata”) bylaws did not prohibit licensed commercial cannabis production on the bare land.
It was only after the purchase and when Old MacDonald began the process of obtaining a cannabis license that some of the neighbours, including Old Mother Hubbard, objected to this and were successful in requesting that the strata council call a special general meeting. It was at the special general meeting that new bylaws were passed which prohibited the commercial production of cannabis or any other cannabis-type commercial ventures on the bare land. Old MacDonald was angry that this had been passed after he purchased the land for that exact purpose. He brought an action in the Supreme Court of British Columbia (BCSC) requesting the new bylaws be revoked on the grounds that they were significantly unfair, as he had purchased the bare land relying on the old bylaws, and had had a reasonable expectation they would not change.
If you were the Judge, how would you decide?
The Judge decided that when considering if a Strata acted unfairly, the court needs to consider that a Strata must act in the best interests of all of the owners. Significantly unfair means the conduct of the Strata is oppressive, imposes a burden, lacks in good faith and could be viewed as unjust to the owner(s). The Judge further acknowledged that a Strata must utilize discretion when making decisions that affect a particular owner, as they have a duty to act in the best interests of all owners.
The Judge decided that having a reasonable expectation that bylaws will not change is not grounds to revoke bylaws, as it could give each individual owner a veto over any changes, or seek an exception undermining the strata owners’ ability to make collective decisions. The Judge further ruled that the action of the Strata was not significantly unfair based on the assessment that the action must be more than mere prejudice or trifling unfairness, and the Strata’s conduct must be seen as unfair. The Judge ruled the action by the owners, who instigated the special general meeting, was not unfair as it was merely the owners exercising their rights under the law and working to establish the type of community they wished for the Strata.
The Judge ruled against Old MacDonald and he did not get to build his cannabis farm. Instead, he had to build a barn to raise cows and chicks and left the court upset singing “E-I-E-I-O”.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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. How would you decide? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!
A Deal Too Good To Be True?
Developer Dan acquired a piece of land on which he wanted to build three townhouses to sell. Developer Dan hired Builder Barry to complete the drywall portion of the construction and hired Contractor Carl to complete the stucco work.
Builder Barry completed the drywalling, but Contractor Carl hadn’t been able to complete the stucco work. Developer Dan needed the first townhouse unit to be complete as soon as possible, as it was to function as a show-home to assist in selling the remaining two units. Developer Dan approached Builder Barry about the possibility of doing the stucco work, emphasizing the need to have the show-home completed ASAP and providing a timeline for the show-home’s completion. Builder Barry provided a quote to Developer Dan which Developer Dan thought was too good to be true and immediately accepted. The stucco for the show-home, and then the two other units, was completed by Builder Barry.
Unfortunately, when the project was finished, it became clear to Builder Barry that Developer Dan had believed the quote was for all three units, and not for the show-home only. Developer Dan refused to pay any more than the quote provided, and Builder Barry filed a claim against Developer Dan for the value of the work completed, alleging that Developer Dan should have known that the quote was for only the first unit.
If You Were the Judge, How Would You Decide?
Builder Barry was successful in arguing that Developer Dan should pay the balance owing. Under BC law, a party who unilaterally makes a mistake when entering a contract can still be granted relief if they can establish ‘equitable’ or ‘constructive’ fraud by the other party. The Courts have held such a remedy to be available in the rare circumstance where the written agreement doesn’t accurately reflect the parties’ intentions, and the mistake was one that would be obvious to a reasonable person in the circumstances.
After considering the emphasis placed on the completion of the show-home and how incredibly low the price would have been for all three units, the Court held that a reasonable person in Developer Dan’s position would have discovered the mistake and therefore Developer Dan had constructive knowledge of Builder Barry’s mistake. As Developer Dan knew or ought to have known that Builder Barry had misunderstood a fundamental part of the contract, yet did nothing to enlighten Builder Barry or clarify the terms of the agreement, the Court found in favour of Builder Barry and awarded him his payment for the value of the work done on all three units.
Cassandra Douma is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!
Real Estate and the GST… the Overlooked Tax?
Scipio Africanus (“Scipio”) immigrated to Canada from Rome in 2015, and in 2016, purchased a farm in Mission, B.C for $2,000,000.00 from Hannibal Barca (“Hannibal”) who had immigrated from Carthage in 2000. The Contract of Purchase and Sale was silent as to if GST was applicable in the transaction. Scipio’s lawyer sent vendor documents to Hannibal’s lawyer, one such document being a GST Certificate. Hannibal signed the Certificate declaring the property was “exempt from GST due to being used residential property.” The transaction was completed and Scipio took possession of the farm.
Some months later, Hannibal’s GST returns were audited by the Canada Revenue Agency (”CRA”), and it was determined GST of $100,000.00 was payable, and demand was made for payment by him. Hannibal realized the error made, and after discussions with his lawyer, accountant and CRA, he paid the tax owing. He then demanded Scipio reimburse him for GST. Scipio claimed the Contract did not mention GST, that he relied upon the Certificate signed by Hannibal saying it was exempt from GST and if GST was applicable, it was included in the purchase price. Hannibal sued Scipio for reimbursement of the GST he paid.
What Would You Do If You Were the Judge?
It is settled law in British Columbia that if a Contract is silent as to the applicability of GST in a transaction, then the tax is in addition to the purchase price. The Judge made this clear to Hannibal and advised him that the $100,000.00 was in addition to the $2,000,000.00. He agreed to pay.
The Judge further noted that under Canadian law, in a typical real estate transaction, it is required that the buyer pay the GST (if applicable), and it is the seller’s obligation to collect it from the buyer and remit the GST to the CRA. Further, the seller has an obligation to certify to the buyer if the transaction is exempt from GST. Scipio argued that Hannibal had certified it was exempt, so he should not be liable.
The Judge noted that the law states that if a seller certifies or represents to a buyer that the sale is GST-exempt, and the buyer does not or ought not to know otherwise, then the law deems the buyer has paid and the seller has collected. The Judge noted that in this transaction, Scipio should have known the property was not GST-exempt because he was purchasing a farm which is not usually exempt from GST, and further, Scipio, through appropriate inquiry and advice, would have found that the transaction was not GST-exempt. The Judge concluded a reasonable person would have concluded it was not GST-exempt when looking at these facts.
The law further states that when a seller has not collected GST from a buyer but accounts to CRA for the sale and remits the tax, then the seller has the legal right to bring an action against the buyer to recover the tax as a debt owed by the buyer to the seller. The Judge concluded Hannibal had remitted the funds to CRA and was entitled to reimbursement from Scipio. The Judge ordered Scipio to pay Hannibal the $100,000,00 he was entitled to for having paid the GST to CRA.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, 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!
Huff, and Puff, and …Good Faith Eviction?
The three little pigs lived in Abbotsford, B.C., within one block of each other. One pig lived in a straw house, one a wood house, and one a brick house. They all rented their properties from the Big Bad Wolf, who was their landlord. After the November 2021 flooding, the straw house and the wooden house collapsed (although rumours say it was blown down by unusually strong winds), so all the pigs moved into the brick house.
In January 2022, the Big Bad Wolf gave the pigs a two-month eviction notice to vacate the brick house so that his son, Little Bad Wolf, and his girlfriend, Little Red Riding Hood, could move into the brick house. The pigs did not believe the Big Bad Wolf’s son intended to occupy the brick house, due to his job being located in Kelowna, so they filed a dispute with the residential tenancy branch (“RTB”) and disputed the eviction notice. The eviction was put on hold until a dispute hearing with the RTB could be held. At the RTB hearing, the adjudicator upheld the eviction based on claims by Big Bad Wolf, that Little Bad Wolf and his girlfriend, Little Red Riding Hood, needed to move back so she could go to school at the University of the Fraser Valley. The pigs sought a review of the decision by the RTB, which was denied, and then appealed to the BC Supreme Court (“BCSC”) for judicial review.
What Would You Do If You Were the Judge?
At the hearing, the Judge reviewed the RTB decision and turned to the import question of “good faith”. The Judge noted that when looking at what this term means, it should be meant to mean “honestly without fraud, collusion, or participation in wrongdoing”. The Judge said that a landlord must truly intend to do what it says, and that it must not be guilty of “dishonesty, deception, or pretence”. In this case, the Big Bad Wolf provided no evidence of Little Bad Wolf or Little Red Riding Hood moving down to Abbotsford, no evidence of school acceptance, or even a written letter from his son. In addition, the Judge said the pigs provided evidence to the RTB of texts from the Big Bad Wolf, requesting the pigs vacate or agree to a rent increase, which showed he had ulterior motives. To the Judge, it looked like the Big Bad Wolf had not provided the eviction notice in “good faith”.
The Judge overturned the RTB decision that affirmed the eviction notice, and remitted the case back to the RTB for a new hearing, based on the BCSC’s decision that good faith had not been present. At the RTB, the pigs won the right to stay in the brick house and the Big Bad Wolf huffed, and puffed, and blew away his chances at an eviction, because he did not act in good faith.
Tyler B. Dennis is a lawyer who practices in Cloverdale with the firm MacMillan Tucker at 5690 – 176A Street, Cloverdale (Surrey), B.C. At MacMillan Tucker, lawyers are available to answer questions about wills and estates, real estate, personal injury, professional negligence, family matters, business, and other issues. If you require legal assistance, please call (604) 574-7431 to book an appointment