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SALE OF LAND - Breach of - Express term - Damages

Monday, April 29, 2019 @ 10:46 AM  

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Appeal by MacIsaac and cross-appeal by the solicitor from a trial judgment that awarded $80,000 in damages to the respondents against them on a joint and several basis. In 2010, the appellant and respondents entered into a handshake agreement of purchase and sale for a homestead property, which consisted of a farmhouse, barn and 10 acres of land, for $150,000. The solicitor acted for both parties in the transaction. The trial judge found the appellant breached the terms of the agreement by failing to grant the respondents ownership of a portion of the driveway necessary for vehicle access to a barn on the property, failing to provide the respondents with use of the garden lot retained by the appellant, failing to remove materials stored on the property, and encumbering the property with a water easement. The solicitor prepared the water easement and the deed conveying the garden lot to another after the sale agreement was entered into but before it closed. He did not provide a report on the closing to the respondents for over two years. The trial judge concluded the solicitor was professionally negligent, in breach of contract and his fiduciary duties to the respondents. The property was ultimately sold by the respondents for $120,000. The trial judge awarded $30,000 for the reduced value of the property, $45,000 for improvements made by the respondents, and $5,000 charged to the respondents as a repossession fee.

HELD: Appeal and cross-appeal dismissed. The trial judge did not err in finding the agreement was enforceable, even though it was an oral agreement, given both parties had acted in furtherance of the agreement. He made no error in his factual findings on the terms of the agreement. The doctrine of caveat emptor did not relieve the appellant from his contractual obligations under the agreement or from his liability to the respondents for failing to disclose the fact the well on the property supplied water to another lot. The trial judge did not err in finding the appellant breached the agreement. His dismissal of the appellant’s crossclaim against the solicitor was intelligible. Both the appellant and the solicitor contributed to the respondents’ loss. The trial judge did not make a palpable and overriding error in not finding the respondents contributorily negligent. The solicitor’s failings left the respondents unaware of the risks and of their options. The trial judge did not err in finding the appellant’s and the solicitor’s breaches caused damage to the respondents. He made no error in quantifying damages.

Urquhart v. MacIsaac, [2019] N.S.J. No. 147, Nova Scotia Court of Appeal, C.A. Bourgeois, M.J. Hamilton and J.E. Scanlan JJ.A., April 4, 2019. Digest No. TLD-April292019003