One of the most important services trading licensees provide to their clients is the ability to draft a legally enforceable contract.

In the case of Russell V Wispinski [1] the judge stated:

“A real estate agent in this province must be qualified and licensed. He and his brethren have a statutory monopoly with all the advantages and burdens that that status bestows. He, in my view, holds himself out as having some special skills and not the least of this is some ability to draft legally enforceable documents relating to his business.”

There are, of course, limits on what is expected of licensees in drafting contracts. Drafting some clauses may be beyond the standard of care of a reasonably prudent licensee, but once a licensee takes on the task, they must do it properly[2].

The key is in knowing when something is beyond your expertise and referring your client to the appropriate expert, likely a lawyer, to draft the clause or contract or generally offer legal advice.

This issue of the Risk Report features Scott Twining’s article, The pitfalls of the poorly drafted contract. He offers several loss-prevention tips on how to avoid claims related to negligence in preparing and reviewing contracts.

Claims for negligence relating to contracts of purchase and sale make up 19% of (now closed) claims that have been reported to E&O since 2010. Watch for these top five problem areas:

1. Subject clauses
2. Taxes/GST
3. Deposits
4. Strata documentation
5. Parties to a contract… tied with… fixtures/chattels

Here are some examples of the types of claims made against licensees in each of these categories.

Subject clauses

• Failing to explain the risks of a subject-free offer
• Failing to remove subject clauses on time
• Failing to recommend appropriate subject clauses
• Drafting unenforceable or ambiguous subject clauses

Taxes/GST

• Misrepresenting who will pay the GST on the transaction
• Misrepresenting that GST or other taxes are not applicable on the transaction
• Misrepresenting the amount of taxes payable
• Failing to ensure the contract sets out who will pay GST
• Failing to advise a client that the foreign buyer’s tax applies

Deposits

• Advising a buyer that their only risk if they failed to complete would be losing the deposit
• Representing that a deposit had been received when this was untrue
• Losing a deposit cheque or bank draft
• Paying out deposit funds without instructions or proper authority

Strata documentation

• Failing to obtain Form B
• Failing to provide the complete set of strata documents requested by the buyer
• Failing to provide minutes or other documents that contain key information such as an upcoming assessment or engineering report
• Failing to discover and disclose information that makes the strata unsuitable for the buyer (e.g. age or pet restrictions)

Parties to a contract

• Failing to ensure you as licensee were dealing with a properly authorized person
• Failing to ensure the instructing party had a valid power of attorney
• Drafting a contract with the incorrect name for the seller
• Forging a signature to a contract

Fixtures/chattels

• Failing to ensure a hot tub or other items are included in the sale
• Wrongfully removing fixtures
• Misrepresenting a heat pump as an air conditioner
• Misrepresenting the age or condition of appliances.

Great Article, as a realtor I value information like this (especially on Misrepresentation)

Puffery or misrepresentation?

By Oana Hyatt, Staff Lawyer

How far can a licensee go in describing the features of a property when marketing it for sale? Do phrases such as “well-designed,” “ready to build,” “state-of-the-art,” “great water supply,” “spectacular,” “well-built,” “newer,” “updated,” “gorgeous,” “high-quality” or “in perfect condition” constitute mere puffery, or do they amount to actionable representations? If the latter, will the inclusion of the general disclaimer commonly found at the bottom of MLS listings relieve licensees from liability?

It depends, but caution is advisable. Section 4-7 of the Real Estate Council Rules requires a licensee not to publish any advertising which the licensee knows to contain a false statement or misrepresentation concerning the property. No disclaimer will relieve a licensee from liability if that licensee knows the statement they are making about the property is false.

The phrases quoted above form a spectrum ranging from:

• statements or opinions as to quality which are mere puffery (such as “gorgeous,” “spectacular”) to;
• statements as to quality intertwined with statements of fact, or statements including quantitative details (such as “ready to build,” “great water supply,” “in perfect condition”), which may be found to be representations.

Liability for negligent or even fraudulent misrepresentation may well result if the court finds there were red flags such that the licensee had reason to doubt the statement made, and to make further inquiries, but he or she did not do so.

In a 1998 case, a judge of the Supreme Court of BC found that the sellers fraudulently misrepresented the condition of the property by saying in the MLS listing that it was in “perfect condition,” and that this description was not mere puffery. The sellers’ failure to disclose known issues with water/sewage ingress and rot in the basement walls, which constituted a material latent defect, resulted in a finding of liability against the sellers. Interestingly, the judge did not find the listing agent liable as the agent did not have a duty to inspect nor any reason to disbelieve the sellers.

Statements as to quality can also be made by buyers’ agents and can also result in liability. In a more recent Small Claims Court case, the buyers’ agent’s statements to the buyers were found to be more than mere puffery, constituting representations upon which the buyers relied, to their detriment. 

The buyers alleged that they had been misled as to the safety of the septic system (which diverted the grey water discharge away from the septic tank/field and into the garden) based on their discovery, some two years later, that the Regional District considered such method of grey water discharge a health hazard which could not continue.

The judge found that the buyers’ agent had told the buyers that grey water discharge into the garden was common in the area and was nothing to worry about, despite there being visible spaghetti noodles on the ground; and that the septic inspection company they had hired was notorious for inspecting and quickly failing septic systems. The judge accepted that the licensee was being honest in making representations and found that the buyers ultimately relied on septic experts.

However, the judge did note that she was troubled by the licensee’s “easy representation” in the circumstances but dismissed the claim against him on the basis that the buyers had not established that the licensee had fallen below the standard of care applicable in the circumstances.

While marketing language often includes superlative terms about the quality or features of a property, licensees must be careful not to make statements of fact without a reasonable basis to believe such statements are true and not misleading.

Case references:

Betker v. Williams (1991), 63 B.C.L.R. (2d) 14 (C.A.)
Edwards v. Crocker, 1998 CanLII 6309 (B.C.S.C.)
Pacific Playground Holdings Ltd. v. Endeavour Developments Ltd., 2002 BCSC 126
Wagner v. Maloney, 2018 BCPC 107

There are two recently announced items relating to real estate in British Columbia that I hope you will give careful consideration to.  Firstly, the anonymous tip line operated by the Real Estate Council of BC; secondly the Speculation and Foreign Buyers Tax. I would like to provide the following comments regarding each of these items.

Anonymous Tip Line

While it is reasonable that an individual wishing to make a complaint about a Licensee may remain anonymous to that Licensee, it is important that the person making the complaint be required to provide their name and contact information to the Tip Line. The reasons for this are twofold. 1. The facts leading up to the complaint may need further examination after the Licensee has been approached and 2. The nature of anonymous online comments and reviews highlights the inaccuracy and often outrageous claims people can be prone to make under the cloak of anonymity, or when they are simply ill informed.

Speculation and Foreign Buyers Tax

The implied message is that wealthy speculators hoping for capital gains are scooping BC real estate at the expense of BC residents in need of affordable housing.

Apparently there is evidence of wealthy people from other countries buying expensive real estate in Vancouver for speculation and perhaps money laundering. That is a separate issue that I am not concerning myself with here. 

My concern is the relatively small number of Canadians wanting to buy retirement homes in BC. When considering the weather alone in most of Canada, it is no wonder that people hope to retire to BC and perhaps spend part of the year here. These people are often the self-employed (farmers, small business people, restaurant workers, etc) who have no pensions to look forward to. They put their savings into homes in Victoria, Kelowna, (and the exempted Salt Spring Island) with the intention of moving here when they can afford to retire. People coming from other provinces for the occasional weekend may not pay income tax in BC, but they support local restaurants, entertainment venues and shops. For the most part, they are not competing for the type of housing we need. The government rules regarding mortgage qualification have made it harder for families of moderate means to buy a house. The working poor, the unemployed and the people with mental and physical challenges that preclude them working are not going to be buying homes – they are the ones the subsidized housing will help.

Please do not impose a further tax for BC residents and Canadians from other provinces who, like most of us, are simply trying to get by.

Sincerely,

Helen Jones