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Real Estate

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Tuesday, February 21, 2017 @ 11:45 AM

CONSUMER AGREEMENTS - Interpretation - Time share agreements

Appeal by the plaintiff, JEKE Enterprises, from dismissal of its breach of contract claim against the defendant, Northmont Resort Properties. The plaintiff was the lessee of two time share units in a hot spring resort. The defendant acquired the ownership interests of the resort's developer in 2010 following foreclosure proceedings. Time share interests were governed by Vacation Interval Agreements (VIAs), which assigned responsibility for all costs incurred in the operation, continuing maintenance and repair of the resort to unit owners and lessees. In 2012, the defendant determined that significant funds were required for extensive renovations, repairs, and to resolve financial deficits. The defendant levied a Renovation Project Fee (RPF) upon owners and lessees. Some responded by paying the fee or surrendering their interests to the defendant. The plaintiff was among a group of approximately 25 per cent of lessees or owners who took no action. The plaintiff refused to pay annual maintenance fees. It commenced litigation alleging the defendant breached the VIAs by requiring payment of the RPF or cancellation fee. The plaintiff sought a declaration that the defendant's fundamental breaches of the VIAs constituted a repudiation that relieved it from any further obligations thereunder. The trial judge dismissed the claim. The trial judge found that the RPF was within the scope of costs encompassed by the VIAs, and that the defendant's conduct in assessing and calculating the RPF did not constitute a fundamental breach of the VIAs. The plaintiff appealed. ... [read more]

Thursday, February 16, 2017 @ 7:00 PM

Real Property Law - Sale of land - Agreement of purchase and sale - Conditions and warranties - Completion - Time for - Remedies - Forfeiture of deposit

Appeal by Invecom Associates from a ruling that it forfeited a deposit under an agreement of purchase and sale with the respondent numbered companies. The appellant paid $400,000 to the respondents pursuant to an agreement to purchase three properties. The parties’ agreement contained several conditions of closing in favour of the appellant, one of which was a deadline for waiver of conditions by written notice to the respondents, following which the conditions would be deemed satisfied and waived. An agreement extended the waiver date. On the extended date, the appellant sent the respondents a draft amendment and extension agreement proposing a further 15-day extension. The respondents indicated through their real estate agent that they would not agree to a straight extension. The appellant took the position that the deal was at an end and the transaction failed to complete. The respondents took the position they were entitled to retain the appellant’s deposit and litigation ensued. An application judge found the appellant in default of the parties’ agreement and declared the deposit and accrued interest forfeited to the respondents. Invecom appealed. ... [read more]

Thursday, February 16, 2017 @ 11:40 AM

Former OSC official joins Pallett Valo

Pallett Valo LLP welcomes Barbara Hendrickson to its business law practice. ... [read more]

Monday, February 13, 2017 @ 11:39 AM

OCCUPIERS' LIABILITY - Particular situations - Injury to children - Liability for injury by animals - Landlord and tenant

Appeal by the plaintiff, Holmes, from summary judgment dismissing her action as against particular named defendants, the Edmunds. The plaintiff's daughter, age five, was bit by a dog, Chopper, while visiting the owners' residence. Chopper's owners were tenants at a premises owned by the defendants. The tenants' lease required the defendants' permission for any new or additional pets. The defendants had permitted the tenants to have a dog. However, that dog passed away in 2010 and was replaced by Chopper. No permission was obtained in respect of Chopper. The defendants' applied for summary judgment dismissing the claim against them. They submitted there was no basis for finding liability in negligence or under the Occupiers' Liability Act (OLA). The chambers judge granted the defendants' application. The plaintiff appealed. ... [read more]

Monday, February 13, 2017 @ 11:36 AM

SALE OF LAND - Agreement of purchase and sale - Conditions and warranties - Completion - Time for - Remedies - Forfeiture of deposit

Appeal by Invecom Associates from a ruling that it forfeited a deposit under an agreement of purchase and sale with the respondent numbered companies. The appellant paid $400,000 to the respondents pursuant to an agreement to purchase three properties. The parties' agreement contained several conditions of closing in favour of the appellant, one of which was a deadline for waiver of conditions by written notice to the respondents, following which the conditions would be deemed satisfied and waived. An agreement extended the waiver date. On the extended date, the appellant sent the respondents a draft amendment and extension agreement proposing a further 15-day extension. The respondents indicated through their real estate agent that they would not agree to a straight extension. The appellant took the position that the deal was at an end and the transaction failed to complete. The respondents took the position they were entitled to retain the appellant's deposit and litigation ensued. An application judge found the appellant in default of the parties' agreement and declared the deposit and accrued interest forfeited to the respondents. Invecom appealed. ... [read more]

Thursday, February 09, 2017 @ 7:00 PM

Landlord & Tenant Law - Commercial tenancies - Lease - Restrictive covenants

Not applicable ... [read more]

Thursday, February 09, 2017 @ 7:00 PM

Real Property Law - Condominiums - Declarations - Essential elements - Statement of common areas and elements available

Appeal by the Strata Plan and the co-petitioners from a judgment granting minority owners exclusive use of seven disputed parking spaces. The parties disagreed over the legal status of seven parking spaces in a 37-unit townhouse development. Each townhouse had a garage. Seven parking spaces were adjacent to seven townhouses. Historically, the spaces were described in the original disclosure statement as visitors parking and were treated as such by the owners, and by new purchasers. However, it subsequently surfaced that the strata plan did not show the parking spaces as common property. Instead, the spaces were described as limited common property, such that the owners of the adjacent units were able to assert exclusive right to use of the spaces. The majority of owners argued that the description of the parking spaces as limited common property was a mistake. The dissenting owners brought a petition claiming exclusive use of the parking spaces with related relief to protect that use. The majority of the owners brought a co-petition alleging the description of the parking spaces was in error, and the Strata Plan acted unfairly in failing to amend it through a resolution pursuant to s. 257 of the Strata Property Act. The judge allowed the dissenting owners’ petition and dismissed the co-petition. The co-petitioners appealed. ... [read more]

Thursday, February 09, 2017 @ 10:59 AM

B.C. organization offers online small claims resolution tool

The B.C. Civil Resolution Tribunal (CRT) is offering an online tool to help small claims litigants settle disputes among themselves. ... [read more]

Thursday, February 09, 2017 @ 10:49 AM

Martyn joins McMillan's real estate group

Scott Martyn has joined the commercial real estate group of McMillan LLP. ... [read more]

Tuesday, February 07, 2017 @ 10:39 AM

CONDOMINIUMS - Declarations - Essential elements - Statement of common areas and elements available

Appeal by the Strata Plan and the co-petitioners from a judgment granting minority owners exclusive use of seven disputed parking spaces. The parties disagreed over the legal status of seven parking spaces in a 37-unit townhouse development. Each townhouse had a garage. Seven parking spaces were adjacent to seven townhouses. Historically, the spaces were described in the original disclosure statement as visitors parking and were treated as such by the owners, and by new purchasers. However, it subsequently surfaced that the strata plan did not show the parking spaces as common property. Instead, the spaces were described as limited common property, such that the owners of the adjacent units were able to assert exclusive right to use of the spaces. The majority of owners argued that the description of the parking spaces as limited common property was a mistake. The dissenting owners brought a petition claiming exclusive use of the parking spaces with related relief to protect that use. The majority of the owners brought a co-petition alleging the description of the parking spaces was in error, and the Strata Plan acted unfairly in failing to amend it through a resolution pursuant to s. 257 of the Strata Property Act. The judge allowed the dissenting owners' petition and dismissed the co-petition. The co-petitioners appealed. ... [read more]