Can I Walk away from a deal because of an Easement?
Joo v. Tran, 2002 ONSC 806
Sellers seek damages for a failed transaction.
Buyers argue that they raised requisitions allowing them to terminate the agreement.
Survey disclosed 4 easements which were “material”.
Buyer’s solicitor requisitioned the easements including Transfer of easements to the Town of Aurora re water mains, sanitary sewers, stormwater drains; Bell to construct and maintain telecommunications; Aurora Hydro Connections Limited to construct and maintain services; and Aurora Cable TV to construct and maintain its system of services.
Seller’s solicitor stated that the requisitions were not a valid objection to title.
On closing, the seller’s solicitor tendered. The buyers refused to close.
The buyer’s Counsel submits that the easements take up approximately 27% of the land mass of the residential dwelling.
The judge indicates that “The true and overriding test to be applied in these cases is whether the impediment to title, in any significant way, affects the use and enjoyment of the property”.
…case law… to determining materiality:
(i) the location of the easement;
(ii) the size of the easement;
(iii) the point of access; and
(iv) the owners’ enjoyment of the property.
…Although the proposed purchasers were offering to pay over $2,000,000 for this residential property, there is no indication as to how the property would be serviced by the utilities, including hydro, telephone or cable TV, if the easements were removed.
…”Although these easements take up a significant percentage of the lot, I am satisfied that this has to be reviewed in context and in view of the actual location of the dwelling, the location of the easements, and the stated purpose of these easements”.
Ruling: Property was resold for 1.7Million dollars after first being sold for 2Million.
$430,000 in damages granted.
Full Case: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc806/2020onsc806.html?searchUrlHash=AAAAAQALcmVhbCBlc3RhdGUAAAAAAQ
This video is provided for informational purposes only and should not be construed, implied, or relied on as legal advice.
Ricky Rathore., BComm., LL.B (Hons.), ABR®, SRS, FRI, Broker of Record – RE/MAX METROPOLIS REALTY, BROKERAGE is a licensed Barrister and Solicitor.
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