The plaintiffs, owners of a building, claim damages from former tenants who, by their wrongful acts, have delayed the sale of the building.
The defendants, tenants, ask to be informed when the owners decide to put the building up for sale. They may perhaps wish to become its purchaser.
In the fall of 2009, and after consulting an appraiser, the plaintiffs offer to the tenants to buy the building for $ 339,000. After consulting with a real-estate agent the tenants offer $ 227,500. The parties do not agree on the price and the renting of the property to the tenants continues.
The facts
The residential building belonged to the father of Mr. Sheward since 1948. At his death the father bequeathed the property in equal parts to his two children, Mr. Gordon Sheward and his sister, but leaves the usufruct of it to his partner during her lifetime. The spouse dies and the usufruct ends. Mr. Gordon Sheward and his sister take over the management of the building.
In December 2009, the sister of Mr. Sheward dies and Wendy, the daughter of Mr. Sheward becomes the liquidator. The defendants pay their rent to Mr. Sheward and do business with him when the building needs maintenance.
The owners reside in Alberta. The relationship with the tenants is difficult since their offer was refused. The building is not profitable: income from the rent is low and costs are high. The owners decided to sell.
On 12 November 2010, the owners entrust the sale to a broker who discusses the importance for a buyer to complete the sale before December 31, 2010, if he wants to regain possession of the property to live there. The price of $ 339,000 is competitive and the broker is hopeful of selling at asking price.
Difficulties for visits to the housing
On 12 November 2010, the broker leaves a message for the tenants notified of his mandate to sell and of the fact that he wants to meet them to organize visits. The message is left in their voicemail. The tenants do not answer the broker. He leaves a new message on November 13 and then on November 14. Finally, on November 16, he drops a written message in their mailbox. On November 17, 2010, the tenants agree to meet the broker. The visit is difficult. The tenants oppose taking pictures and any open-house. They impose significant restrictions on visiting hours. They accept no day-visits at all, or during the weekend, despite the fact that the tenants are working from home.
During the visits, the tenant follows the visitors step by step, closes the lights even before the visitors have left the room. The wife of the tenant is aggressive and rude. One of the visitors tells the real-estate agent that it is out of the question for him to do business with such tenants.
The tenants claim that they are doing this to protect the confidentiality of their work papers. The Court concludes that this is just an excuse because it would be easy to store their documents when visitors are passing by in their office.
First buyer
On 15 December 2010 a buyer is interested. He wants a second visit to show the house to his wife and son. He makes a verbal offer of $ 315,000, conditional on an inspection. The broker tries to make arrangements with the tenants for the visit. On 16 December he leaves a message in the voicemail for organizing the visit on 17 December. He tries to send the message by fax and he leaves a written message in the mailbox. In the late afternoon of 16 December, the broker receives a message from the tenant that requires that, in the future, Mr. Sheward should be the one who must directly give notice and also that he should be present during the visits. In addition, for the first time, this tenant says that he ignores who is the agent of the owner. The tenants are well aware that the owners live in Alberta and that Mr. Sheward entrusted the sale of the property to the broker.
On 17 December 2010 Mr Sheward sends an email informing the tenants that he has entrusted the sale to his broker and that they should collaborate for the visit.
On December 18, 2010, the broker went to the residence and found that the tenants went on vacation to Cuba on the night of December 17 until January 1, 2011.
Unable to visit the property the potential buyer is not interested anymore in buying. The deadline of December 31, 2010 passes without the property being sold.
Second buyer
The broker finds another potential buyer and the problems start over again. He wants to visit but the tenant answers that he wants a legal notice stipulating the name and address of the person appointed to administer the property. However, the tenants are well aware that there is no administrator and that Mr. Sheward has been taking care of the property, first with his sister, and then only by himself, since the death of his sister.
On January 23, 2011, the buyer makes an offer to purchase at $ 300,000 when he was not even able to visit the house. The offer is conditional on an inspection within 7 days.
Mr. Sheward considers it preferable to accept the offer as is and not risk losing the sale of the house.
The broker and Mr. Sheward tried repeatedly but unsuccessfully to arrange a visit for inspection. The owner signed the sale with the potential buyer on March 15, 2011.
The judgment of the Superior Court
According to the Superior Court, the tenants’ behavior is inexplicable and unreasonable:
“Moreover, the evidence shows the difficulties faced by Mrs. Deakin (the broker) to organize sales with her potential buyers. On several occasions, she must leave more than one message before they return it. This is an unreasonable behavior.”
Also, according to the Court, it is likely that the owners would have made a counter-offer lower than $ 339,000 but more than $ 315,000. The Court sets the loss at $ 25,000.
For damages for trouble and inconvenience caused by the tenants to the owners the Court awards the sum of $ 5,000.
Finally, the Court awards $ 15,000 as extra-legal fees for an abuse of rights:
“Under the circumstances, to force the applicants to come to Superior Court for an injunction to visit their property and oppose this request was abusive. Judge Lalonde already pointed out in her judgment that requiring the presence of the owner who resides in Alberta for visits was abusive. The defendants had no serious objection to make. The defendants have required an interrogation of Mr. Sheward and Mrs. Deakin. Their counterclaim is also abusive.”
The Superior Court sentenced the tenants jointly to pay to the owners the sum of $ 45,000 in total.
The defendants, tenants, ask to be informed when the owners decide to put the building up for sale. They may perhaps wish to become its purchaser.
In the fall of 2009, and after consulting an appraiser, the plaintiffs offer to the tenants to buy the building for $ 339,000. After consulting with a real-estate agent the tenants offer $ 227,500. The parties do not agree on the price and the renting of the property to the tenants continues.
The facts
The residential building belonged to the father of Mr. Sheward since 1948. At his death the father bequeathed the property in equal parts to his two children, Mr. Gordon Sheward and his sister, but leaves the usufruct of it to his partner during her lifetime. The spouse dies and the usufruct ends. Mr. Gordon Sheward and his sister take over the management of the building.
In December 2009, the sister of Mr. Sheward dies and Wendy, the daughter of Mr. Sheward becomes the liquidator. The defendants pay their rent to Mr. Sheward and do business with him when the building needs maintenance.
The owners reside in Alberta. The relationship with the tenants is difficult since their offer was refused. The building is not profitable: income from the rent is low and costs are high. The owners decided to sell.
On 12 November 2010, the owners entrust the sale to a broker who discusses the importance for a buyer to complete the sale before December 31, 2010, if he wants to regain possession of the property to live there. The price of $ 339,000 is competitive and the broker is hopeful of selling at asking price.
Difficulties for visits to the housing
On 12 November 2010, the broker leaves a message for the tenants notified of his mandate to sell and of the fact that he wants to meet them to organize visits. The message is left in their voicemail. The tenants do not answer the broker. He leaves a new message on November 13 and then on November 14. Finally, on November 16, he drops a written message in their mailbox. On November 17, 2010, the tenants agree to meet the broker. The visit is difficult. The tenants oppose taking pictures and any open-house. They impose significant restrictions on visiting hours. They accept no day-visits at all, or during the weekend, despite the fact that the tenants are working from home.
During the visits, the tenant follows the visitors step by step, closes the lights even before the visitors have left the room. The wife of the tenant is aggressive and rude. One of the visitors tells the real-estate agent that it is out of the question for him to do business with such tenants.
The tenants claim that they are doing this to protect the confidentiality of their work papers. The Court concludes that this is just an excuse because it would be easy to store their documents when visitors are passing by in their office.
First buyer
On 15 December 2010 a buyer is interested. He wants a second visit to show the house to his wife and son. He makes a verbal offer of $ 315,000, conditional on an inspection. The broker tries to make arrangements with the tenants for the visit. On 16 December he leaves a message in the voicemail for organizing the visit on 17 December. He tries to send the message by fax and he leaves a written message in the mailbox. In the late afternoon of 16 December, the broker receives a message from the tenant that requires that, in the future, Mr. Sheward should be the one who must directly give notice and also that he should be present during the visits. In addition, for the first time, this tenant says that he ignores who is the agent of the owner. The tenants are well aware that the owners live in Alberta and that Mr. Sheward entrusted the sale of the property to the broker.
On 17 December 2010 Mr Sheward sends an email informing the tenants that he has entrusted the sale to his broker and that they should collaborate for the visit.
On December 18, 2010, the broker went to the residence and found that the tenants went on vacation to Cuba on the night of December 17 until January 1, 2011.
Unable to visit the property the potential buyer is not interested anymore in buying. The deadline of December 31, 2010 passes without the property being sold.
Second buyer
The broker finds another potential buyer and the problems start over again. He wants to visit but the tenant answers that he wants a legal notice stipulating the name and address of the person appointed to administer the property. However, the tenants are well aware that there is no administrator and that Mr. Sheward has been taking care of the property, first with his sister, and then only by himself, since the death of his sister.
On January 23, 2011, the buyer makes an offer to purchase at $ 300,000 when he was not even able to visit the house. The offer is conditional on an inspection within 7 days.
Mr. Sheward considers it preferable to accept the offer as is and not risk losing the sale of the house.
The broker and Mr. Sheward tried repeatedly but unsuccessfully to arrange a visit for inspection. The owner signed the sale with the potential buyer on March 15, 2011.
The judgment of the Superior Court
According to the Superior Court, the tenants’ behavior is inexplicable and unreasonable:
“Moreover, the evidence shows the difficulties faced by Mrs. Deakin (the broker) to organize sales with her potential buyers. On several occasions, she must leave more than one message before they return it. This is an unreasonable behavior.”
Also, according to the Court, it is likely that the owners would have made a counter-offer lower than $ 339,000 but more than $ 315,000. The Court sets the loss at $ 25,000.
For damages for trouble and inconvenience caused by the tenants to the owners the Court awards the sum of $ 5,000.
Finally, the Court awards $ 15,000 as extra-legal fees for an abuse of rights:
“Under the circumstances, to force the applicants to come to Superior Court for an injunction to visit their property and oppose this request was abusive. Judge Lalonde already pointed out in her judgment that requiring the presence of the owner who resides in Alberta for visits was abusive. The defendants had no serious objection to make. The defendants have required an interrogation of Mr. Sheward and Mrs. Deakin. Their counterclaim is also abusive.”
The Superior Court sentenced the tenants jointly to pay to the owners the sum of $ 45,000 in total.