The developer of a condominium building had not completed it by the closing date as set out in an Agreement of Purchase and Sale. The builder and purchaser had intended that there would be terms governing the vendor’s right to extend the closing date. However, in the agreement, these terms were not written out or clearly formulated.
That meant that when the closing date came and the vendor could not close and give occupancy, the purchaser had the absolute right to terminate the agreement. (Schneeberg v. Talon International Development Inc., 2010)
* * * * *
In another case, W was a principal of a corporation that built a condo complex. W purchased one unit and built a third floor in the attic, but had no building permit.
The plaintiff purchased W’s unit and found water damage and mould on the third floor. It was determined that the space on the third floor was deemed a “common element” with questions of legality.
The plaintiff sued the condo corporation, the property management company and the law firm that acted for her on the purchase. The court held that the lawyer did not meet the standard of care.
It was found that the lawyer had to review the plans of the condo corporation in regard to particular units and meet with the client to discuss her purchase and exactly what she was buying. By doing so, the third floor would be discovered to be illegal and the client would have been warned. She then would not have proceeded since the third floor did not belong to the unit.
The law firm was ordered to pay $225,000 for the loss of value of the third floor, substantial return of legal fees and the significant costs to close up the third floor.
(Orr v. Metropolitan Toronto Condominium Corporation, 2011)
* * * * *
In another case, a purchaser agreed to buy a home and the developer agreed to provide a gas connection, five feet within the boundary line of the home. The developer acted in good faith and only later learned that the utility, Enbridge, would not install such a “dead-end tail” line from the main gas line.
All the purchaser had to do was put in a furnace and apply for gas, but for some reason, she would not do so. When she sued, the court refused relief because the developer was mistaken about the gas line offered but fulfilled all other obligations. The purchaser was deemed in fact the cause of the problem by her failure to co-operate. (Ahmadi v. Fernbrook Homes (Block 18 Gulf) Limited, 2011)
* * * * *
In another case where a plaintiff sued her real estate lawyer, the plaintiff sought damages for mental distress.
The B.C. court clearly held that the law does not compensate plaintiffs for anxiety or agitation that falls short of an “injury”. It found that there are everyday anxieties that people in a society must accept and that are not actionable damages.
Most of these cases are available for review at www.canlii.org.
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
