Greanya Legal Services

  Service, Affordability, Dedication   

Blog

view:  full / summary

Purchasing a Home and Caveat Emptor: Why Residential Real Estate Buyers need to obtain a Home Inspection

Posted on 12 February, 2019 at 0:00

By Daniel Greanya:

One area of law that my office represents people in is in the area of legal disputes related to residential real estate transactions (not the transactions themselves, only lawyers can do that). Usually these matters come to my attention only where the sale falls through for some reason or there is a dispute over the transaction or the property. Residential Real estate transactions are the most important transaction a family will make, and it is very important that care is taken to protect the family’s interest.


It has become common in real estate transactions for a salesperson to suggest waiver of any inspections or conditions to enable clients to get the house. This is a very bad practice for both the real estate salesperson and the homebuyer.


With very few exceptions, residential real estate law in Canada is one of the last bastions of the principle of caveat emptor. This latin term literally means “let the buyer beware”, and stands for the concept that a buyer must satisfy themselves as to the quality and or suitability of the product or service that they are purchasing prior to purchase. The seller may not act deceitfully to hide important information from the buyer, but the buyer is responsible to make sure that they are making a sound purchase.


A purchaser protects themselves under caveat emptor two ways, first by placing warranties (promises by the seller that the home will be in a specific condition, and that they will be responsible if it is not) in the Agreement of Purchase and Sale, and second by attaining a home inspection. Now, a home inspector is only going to report on things that are visible upon inspection, not all things that are wrong with the property, nevertheless an inspection is very important. Outside of discovery of a problem in a home inspection, a buyer generally has no claim against the seller unless they can prove that the problem is one that the buyer could not have discovered upon proper inspection, that seller knew about the problem and that the seller concealed it. If the buyer could have discovered the problem by reasonable inspection and chose not to do so, the seller will not be responsible.


Of course if the seller is not responsible, and the buyer has not inspected, the problem is now the buyers’ problem. This applies even where the buyer would not have purchased the property if they would have known. Often the buyer who thought that they were purchasing a home without problems finds out that they now have a bill for tens of thousands of dollars that they did not budget for, and did not know about, and they are responsible for a home that they would not have bought had they known about the problem. There is no recourse against the seller, so the only option a purchaser has is to absorb the cost themselves or take action against the real estate agent. This brings us to why this is a problem for salespersons.


A real estate agent has a legal and professional duty to properly advise their client and to act in their client’s best interest. After all, that is why the client has hired the real estate agent in the first place. In the scenario where a significant problem is discovered and the agent has not attained an inspection, a real estate agent can be sued for breaching their contractual and fiduciary obligation to the client, and can be on the hook for some or all of the purchaser’s costs.


While it may seem expedient to dispense with an inspection, it is very important for agents to advise that an inspection be completed and for purchasers to demand an inspection. This will help both parties ensure that the transaction is one in which the purchaser is going to be happy with, and prevent unnecessary cost and aggravation later.


DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

Quantum What? A guide to getting paid in business transactions

Posted on 12 December, 2018 at 22:30

by Daniel Greanya


To most people a contract is a written paper signed by both parties with agreed terms on it. In reality only a small number of contracts fit this description. A contract refers to the terms agreed by at least two people where one party provides something in exchange for something else from the other party (an exchange, known as consideration). Contracts can take the form of a signed piece of paper, but they can also be orally made, they can be a letter, or an email exchange between parties. A ticket with terms on the back is also a contract, made by the payment of consideration, which implies the acceptance of the terms on the ticket.


A contract assumes that people agree on the terms that they will abide by. The reality in day to day business transactions is that this does not always happen. Sometimes each side understands what was agreed differently, and if the difference is fundamental to the agreement, a Court may find that a contract was not made (that the parties did not come to an agreement at all). If an agreement is not made, there is no agreement for the courts to enforce, and yet often one or both parties have done what they promised (or thought that they did). If the court were merely to find that there is no contract to enforce, both parties could be out time and money, sometimes considerable time and money. This principle applies equally to situations where there are problems with goods/services provided (but are still not totally useless), or where the goods/services are partially provided.  In these situations, the legal principle of quantum meruit or unjust enrichment applies. Under quantum meruit, a party is entitled to compensation for the contribution that they have made to their end of the bargain. It allows the Court to assess the value of the goods and services provided by a party even where a contract has not been made, and order the party who has received the benefit of another party’s contribution to compensate that other party. For instance, suppose I tell a contractor to construct a deck for me. Now suppose that the contractor agrees to assess the project, draft plans, and purchase materials. The contractor assesses the project, drafts plans, and purchases materials, but then I tell him that his price is too high and I do not wish to proceed. The contractor is now out the work that he has put into the project, which may be considerable. He is not willing to let me off the hook for this amount so he sues me. To be clear, there is no contract, we have not agreed on a set price for the project or for the work done and I may not have even promised to pay a partial amount for his work. Despite this, I receive the benefit of the work to his detriment, and it would be unfair to allow me to escape payment for the work. The contractor can sue me under quantum meruit, and the court will assess the value of the work he has done, which I will have to pay for.


Quantum meruit is a very important tool to allow the Court to ensure that all parties are being treated fairly, and to prevent injustices. In the business world, it allows a goods/services provider to get compensated for the goods and services that they have provided, even where there has not been an agreement on the cost, or where not all of the work has been completed. If you think that quantum meruit applies to your situation, please contact my office at 647-701-5589 or [email protected]


DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.


Let the Buyer Beware: The Perils of Real Estate Transactions

Posted on 11 March, 2018 at 0:20

By Daniel Greanya


When purchasing or selling a home, it is very important to have the advice of qualified real estate and legal professionals. A home is the largest purchase that most families will make in their lifetime. A real estate transaction is a very serious endeavour, which is fraught with risk. Now I have to disclose that I am not a real estate lawyer, and I do not help people complete real estate transactions. I get involved as a part of my civil practice, after a problem occurs with the transaction, such as where the transaction falls through, or where there is another dispute related to the transaction that is small enough that it goes to the Small Claims Court.


Real estate law is one of the last frontiers of the legal maxim caveat emptor, or “let the buyer beware”. This maxim refers to the legal proposition that a buyer must take all steps to protect themselves and to ensure that they are making a smart purchase. A seller could not mislead a buyer, but the buyer was expected to satisfy themselves as to the quality of the purchase made. This legal principle fit well with the laissez-faire economy of the 19th century, however most people would consider it unduly harsh in the modern world. That is why in many cases, it no longer applies, and a deluge of legislation and case law has been developed to protect consumers.


Of course, the nature of real estate transactions make it tough sometimes to protect oneself. Problems often are concealed, for instance where a real estate transaction includes a backyard pool which is closed for the winter. As a result, there are a number of ways that buyers should protect themselves, including home inspection and warranties, or terms that are included in the Agreement of Purchase and Sale to protect the buyer.


In my next post, I will continue to talk about home inspections and warranties and how they protect buyers.


DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

Landlord's, Tenants, and Real Estate Transactions

Posted on 14 February, 2018 at 2:15

One issue that comes up frequently in my practice with small landlords is how to deal with a tenant where the landlord intends to sell the house to someone else. Small landlords often do not know what to do when they decide for whatever reason to stop being a landlord, or to sell a rental property. What complicates the issue is that often the tenant in the property has been problematic. Real estate agents and lawyers manage the transaction of selling a home and they are the experts in relation to the transaction, but do not work with residential tenancies law on a regular basis. Landlords usually want help navigating the legal landmines associated with selling a property.



Residential tenancies in Ontario as noted by Section 18 of the Residential Tenancies Act “run with the land.” A residential tenancy transfers part of the interest in the land to the tenant, who is entitled to occupy the property within certain conditions such as payment of rent, and following other terms (such as outlined in a lease or in the Residential Tenancies Act). A residential tenancy gives what can legally be referred to as a subordinate interest in land. The owner of the property has the primary interest, but the subordinate interest still exists and has to be dealt with through the legal process. The transfer of ownership from one owner to another does not end the subordinate interest, and it continues under the new owner.



Unless otherwise negotiated, an Agreement of Purchase and Sale usually indicates that the seller will provide “vacant possession” to the purchaser. This means that the house will be provided empty for the other party to move in on the closing date. Of course, if there is a tenant, this cannot be done. If a seller has agreed to provide vacant possession and still has a tenant, they are in violation of the Agreement of Purchase and Sale and can be sued for breach of contract. Of course this is the worst possible scenario for the family moving in, which now finds themselves without their home.



One way to prevent this scenario is to tell the buyers that the tenants are there, and sell the house with the tenants that go along with it (that is to sell it with the idea that vacant possession will not be given). Of course, this means that the tenants become the new owners’ problem, and they may not want to do this unless they want the house for a rental property.



The second way to deal with this is to evict a tenant for the purchaser’s own use. This process requires confirmation of the intent of the purchaser to move in. Greanya Legal Services can assist with this process, but it is important also to make sure that this is negotiated up front by the real estate agent working on the transaction to avoid problems later. You will want to make the application early, since it can take up to three months or more to go through the legal process to evict a tenant. Be prepared for delays, the Board has the jurisdiction under Section 82 of the Residential Tenancies Act to delay an eviction if the tenant would suffer hardship.


The sale of a rental property can be navigated. It does however take a bit of special care to navigate the legal problems that may result.


DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

 


Unpaid Invoices and Contract Law: Quality of Goods and Services, Completion of Contract, and a Reasonable Invoice

Posted on 27 January, 2018 at 19:10

In my last post, I introduced the topic of unpaid debts, and addressed the first common justification provided for failure to pay. There are three other common reasons that I wish to address, including disputes over the quality of goods and services provided, disputes about the completion of the contract, and the reasonableness of an invoice.



A common area of dispute between a consumer and a goods/services provider is that of quality of the work or services provided. Aside from any specific duties made in the contract between the parties, there are also common law duties to ensure that goods and services are adequate. These duties have been developed over hundreds of years, and have been modified by provincial and federal laws passed by Parliament or the Legislative Assembly.



The principal of Caveat Emptor or “let the buyer beware” is a traditional contract law concept that required a buyer to satisfy themselves as to the quality of the goods and services that they are purchasing. While this principal is sometimes applied in a modern context, it is not practical to require a modern consumer to take on the responsibility prior to purchase. As a consequence, this principle is not usually applicable in the modern context, and has been modified or discarded in most circumstances. It has been recognized that goods purchased must usually be of a reasonable merchantable quality. Additional rights may be applicable depending on warranties made by the seller, or where the seller was asked if the goods would be suitable for the purpose that the buyer had in mind. Similarly, where services are provided, they must also be of reasonable quality. For example, contractors and skilled tradespeople must use reasonable skill in doing their work; including compliance with applicable building standards (see my previous article on contractors and reasonable quality). Skilled tradespeople are expected to provide competent work and materials that are compliant with the standards of their trade. Additional duties may apply where the nature of the contract or the task requires it. For example, a contractor for the installation of costly imported marble would potentially need to take greater care than the minimum standard to ensure proper installation, in contrast to a contractor installing linoleum.



Another area of dispute is the completion of the goods or services provided. The Court will not award damages and a party is not entitled to claim damages for goods or services that have not been completed. This would be fundamentally unfair. Quite frequently, in disputes of this type, some work has been completed, but other steps have not been completed. In these circumstances, the Court will usually decide how much the goods and services which have been provided are worth, and require payment of this amount.



Another area of dispute is the reasonableness of the debt. Usually, the parties agree on the amount which is reasonable for the services provided, and the Court will not usually replace this with their own judgment of the matter. The court will take action in some of these disputes where the amount of the charge is more than what was contracted for, where the charge is excessive or unconscionable. Under the Consumer Protection Act, a charge for a consumer transaction may not be more than ten percent (10%) in excess of the amount quoted. Of course this may not apply if following a quote, the scope of goods or services provided drastically changes. If you are a contractor or service provider, it is your responsibility to make sure that any estimate you give is realistic and accurate. The consumer is entitled to rely on the estimate made. I should also note that misrepresenting the cost or nature of goods or services may also give rise to a claim of misrepresentation.



This article is intended to provide a vignette of knowledge about unpaid debt claims and how they are dealt with by the Small Claims Court. I cannot fully summarize the law in a short article like this, nor would it be appropriate to do so. If you need assistance with a specific case, contact us for legal advice.



DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.


Unpaid Invoices and Contract Law: A Legal Justification?

Posted on 27 March, 2017 at 11:05

The Small Claims Court deals with a wide variety of legal matters and claims, affecting all areas of life. Unlike most tribunals, it does not have a specific mandate to deal with a set subject area as would the Landlord and Tenant Board or the Workplace Safety and Insurance Board, to give two examples. One of the most important types of claims that the court must deal with is that of unpaid debts, or unpaid invoices for goods and services.


Most people who are not acquainted with the legal system assume that the Small Claims Court will take the unique personal situation of the parties into account when making a determination into payment of an unpaid debt. While the Court aims to make decisions that are fair and in consideration of the parties’ circumstances, it is also limited to decisions which are in agreement with the case law and the defences available to a given scenario. There are four main categories that disputes over nonpayment of a debt usually fall into, including disputes about ability to pay, quality of work, completion of work, and reasonableness of the invoice. These categories are not exhaustive.


The first category, unlike the other three is not really a category at all. It is not a legal defence for a party to claim that they cannot pay their bill; such a claim has no impact on (a Court’s determination of) liability. One notable exception to this is where a bankruptcy proceeding is concerned, but this is beyond the scope of this article or of Small Claims Court. While ability to pay is not a legal defence, it is probably the most common reason that unpaid debts make it to Small Claims Court. While a court will not excuse liability on this ground, it can address proposals for terms of payment and or grant some relief when a judgment is being enforced. Attaining partial payment or payment over a greater time period is better than no payment at all. Consequently, it is usually within both parties interest to agree on payment terms that are realistic rather than to insist on immediate full payment when that is not going to happen.


In my next post, I will discuss the three remaining common defences, being quality, completion, and reasonableness of the invoice.


 DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

So, you want to be a landlord?

Posted on 31 March, 2016 at 1:10

By Daniel Greanya

 

My So you want to be a landlord series will address issues specific to residential landlords in Ontario. There are many responsibilities and obligations to being a landlord that prospective or current landlords may be unaware of. Residential landlords will also sometimes experience problems with their tenants, from non-payment of rent, to maintenance issues, to illegal activity.

 

Residential tenancies are a very heavily regulated area of the law, and are regulated separately from commercial tenancies. Quite often, laypersons confuse commercial tenancy principles with residential tenancy principles, and find out the hard way that these do not always intersect.

 

For example, many landlords are unaware that residential tenancies are of indefinite duration. Even where the parties have a lease for a period of time, the RTA provides that the tenancy continues after the lease has ended. Many landlords and tenants assume that the tenant must move out at the end of a lease, and that they can give the tenant notice to terminate the tenancy at any time. This is not the case. A landlord may terminate a residential tenancy for only a few reasons that are outlined in the legislation. A tenant may terminate the tenancy prior to the end of the lease, or with proper notice after the lease has expired. When a residential tenancy is not terminated in accordance with the Act at the end of a lease, it continues on a month to month basis.

 

Residential tenancies in Ontario with a few exceptions are governed by the Residential Tenancies Act, 2007. Almost all residential tenancy disputes are handled by the Landlord and Tenant Board, a quasi-judicial tribunal that provides a cost effective and expeditious resolution process for such disputes. Some matters go elsewhere, such as Small Claims Court, and landlords have obligations that arise under other legislation. These obligations include compliance with municipal by-laws, zoning, and building standards, and the Ontario Fire Code.

 

Greanya Legal Services can assist you with residential tenancy issues, including representation at the Landlord and Tenant Board. Call to discuss your legal matter.

 

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

Innocent Fun, or Not? Sexual Harassment in the Workplace.

Posted on 12 December, 2015 at 0:35

Sexual harassment includes sexual jokes and innuendo, pictures or other materials, sexual advances, among other things. Sexual harassment falls into the categories covered by the Human Rights Code, and may involve discrimination based on sex, gender, and sometimes sexual orientation.

 

All employees have the right to be free of sexual harassment. Sexual harassment poisions the workplace environment, destroys workplace morale, offends the dignity of the person, and makes a workplace impossible to work in. This type of conduct must be taken seriously by an employer, investigated and consequences imposed on the perpetrator.

 

Complaints about sexual harassment should be made to the employer. If however, nothing is done about the harassment, the employer can be taken to the Human Rights Tribunal. The HRT will award damages to an employee based on the seriousness of the harassment. One incident will be treated less seriously by the tribunal, however multiple incidents, and more serious incidents will lead to higher level of damages from the Tribunal. Sexual harassment is very serious. What seems to be innocent may not be taken innocently, so it is always best to avoid conduct that might be considered sexual harassment. Continuing in harassing conduct can lead to sanctions up to loss of one’s employment. Sexual harassment is not worth it.

 

Employers should make their expectations that sexual harassment should not be allowed in the workplace to protect themselves from liability and to ensure a positive work environment. A positive workplace culture will go a long way to prevent sexual harassment and other forms of misconduct. While workplace culture deos not cause sexual harassment, it does encourage improper behaviour. The employer should set a clear and consistent standard.

 

Greanya Legal Services can provide advice on sexual harassment and the human rights process. Next week I will address the issue of workplace violence. This will be the final week dealing with workplace harassment and violence series.

 

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

Workplace Harassment: Part II

Posted on 7 November, 2015 at 19:40

 By, Daniel Greanya.

While it is beneficial to have the OHSA provide protection to workers who are suffering workplace harassment, the changes are limited. The Act should be considered a good starting point, but not the best option in terms of dealing with the issue.

 

Employers should address workplace harassment and deal with it severely, reprimanding the responsible individuals after an investigation. There is not however, anything in the Act that requires them to take this action in relation to an issue of workplace harassment. An employer may have an anti-harassment policy, and a process for investigation. This does not necessarily mean that they will properly hear an employee’s complaints. Unlike other areas of employment law, such as employment standards, there is also no direct appeal if an employer does not act. There is a procedural complaints process, but that is all. If a complaint is made to the Ministry of Labour, they will investigate compliance with the OHSA. What they are not able to do is force employers to take action on an employee’s specific situation.

 

While the process for general workplace harassment is imperfect and in its infancy, there is a process for some instances of workplace harassment. The most obvious process in place for complaints about workplace harassment is an application to the Human Rights Tribunal. Employment is a protected area for the purpose of the Human Rights Code, and in fact employment is the most common area of human rights complaints. The Human Rights Tribunal is a common forum for complaints about workplace harassment.

 

The human rights process is also extremely limited, but it gives an automatic right to apply for relief from the harassment. An application can be brought to the Human Rights Tribunal if the complaint falls within one of the prohibited grounds, such as disability, sex, age, creed, race, national or ethnic origin, sex, sexual orientation etc. There are obviously many instances of workplace harassment that do not fall within these categories. Sexual harassment is a code related phenomenon, related to sex, gender, and sometimes sexual orientation. I will discuss this in more detail next week.

 

While the Code is an effective process for workplace harassment on code related grounds, it is not an effective process for other instances of harassment. For advice on harassment that may fall under the Human Rights Code, contact Greanya Legal Services. We will provide a free half hour consultation.

 

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

Do you have work trouble? The Problem of Workplace Harassment and Violence!

Posted on 24 October, 2015 at 22:40

 

Disagreements and conflicts are common in the workplace. People are diverse, and have divergent opinions, feelings and interests. In a context where multiple people must work together for the same goal, conflicts are inevitable. It is very important however that conflict be properly managed and handled constructively. The problem of workplace violence and harassment is gaining increasing recognition in Ontario Workplaces. Recent changes to the Occupational Health and Safety Act take these challenges into account. This is the first of a series of articles that I am going to do about the issue of workplace violence and harassment.

 

Harassment refers to a pattern of vexatious conduct that is known or should be known to be unwelcome. It includes a wide variety of unwanted activity from intimidation, to making sexual advances on a co-worker or subordinate. These behaviors are unacceptable in Ontario workplaces, despite a culture in some workplaces which condones this sort of conduct.

 

An employer has a duty to ensure a safe and harassment free workplace. Increasingly, harassment is being viewed as an occupational hazard that has to be protected against like other workplace hazards. In 2010, the Ontario Legislature amended the Occupational Health and Safety Act to include harassment as one of the issues deserving of the Act’s protection. The protection under the OHSA for workers is limited, but the Act is a good step forward that requires employers to set their mind to the issue of harassment and workplace violence and how it will be prevented.

 

Under the OHSA, an employer must have an anti-harassment policy in place, and a program to implement the anti-harassment policy. This policy must include a process where workers can complain about workplace harassment. Unfortunately while the Act requires the existence of an anti-harassment policy, it does not require an employer to investigate or take specific action in relation to workplace harassment. This legislation will raise awareness about workplace harassment and hopefully reporting of the issue to the employer. It is hoped that the legislation will improve awareness, prevention, and employer action against workplace harassment. The legislation is however limited in the tools that it provides to a worker who faces workplace harassment.

 

Next week, I will discuss workplace harassment in more detail, including the application of human rights law to the issue. In future weeks I will address the issue of workplace violence.

 

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 


Rss_feed