· Growing tired of your spouse, but worried about an expensive divorce settlement? Act now, while the economy is still in the dumps
· Economists say Canada is set for growth in the coming year - so lose your soulmate before your portfolio rebounds all the way back
· asset value is determined the date your marriage breaks down, not the date your divorce is finalized
· every day your RRSPs increase is another dollar you're going to have to share, until you give notice you want out of your marriage
· the other spouse may be taking advantage of the law
· If the date of the marriage breakdown is contested (and it often is), it could mean thousands of dollars for the other party
The Ontario Court of Appeal has recently ruled judges can take dramatic changes into account when determining equalization payments, if the difference is "unconscionable."
I was quoted in the article: If you're inspired by the settlement, take note: some people, including real estate agent and former lawyer Brian Madigan, find the whole idea a "little abhorrent."
"You mean, I have to phone my real estate agent to find if the timing is right?" the realtor said. "Like, 'Oh my god the real estate market is going to go up in the spring, and February is the end of RRSP season, I should lock in the savings?' "
Obviously, this could start a cottage industry for real estate valuations. Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
You might think that the rule of law would apply equally in Ontario. Apparently, it doesn't, according to Julian Fantino the Commissioner of the Ontario Provincial Police.
David Brown and Donna Chatwell are suing both the OPP and the Province of Ontario for failing to protect them or enforce the law against native protesters around their home in Caledonia, Ontario.
Fantino agreed in the lawsuit that :
"....Threats, kidnapping, intimidation, harassment, vandalism, mischief and theft by native protesters in Caledonia against a family whose house is almost surrounded by the contested site are not valid expressions of a land claims dispute."
Nevertheless, the OPP stood back and failed to take action. Fantino's defence was that any such steps might escalate the situation and place others in danger, including his own officers.
Previously, the OPP has been accused of failing to enforce Court Orders issued by a Judge of the Superior Court of Ontario.
This is a rather sad situation for just about everyone concerned. From a simple real estate perspective, Caledonia remains an area in Ontario where the rule of law does not prevail, and that makes it a poor investment, notwithstanding that prices are otherwise attractive.
Inaction on the part of the government is not helping anyone.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
That's a good question. Prior to 1997, there was no commonly available title insurance in Ontario and yet it was the norm in the United States.
Solicitor's Opinion
Traditionally, purchasers sought a title opinion from a solicitor who undertook a search of the title to the property. This included checking the chain of title as well as completing searches to determine if there were any liens or whether the property complied with zoning and building by-laws. The solicitor would express an opinion as to whether the title was "good and marketable". A mortgagee in receipt of this opinion would advance the funds so that the purchase could be completed.
If problems arose in the future with the title, liens, zoning or other matters, it would be necessary for the purchasers to sue their lawyer. First of all, most people are reluctant to sue their lawyers. While they may not like other people's lawyers, they usually like their own. So, if the claim is small, they are unlikely to pursue the matter.
Let's assume that it is a large enough claim to pursue. They will need to retain another lawyer. The second lawyer (a specialist in litigation) will have to establish that the first lawyer was negligent in completing the transaction. This is much easier said than done. The first lawyer will be very reluctant to admit "negligence", after all, one's legal reputation is at stake. So, you will probably find that the matter of negligence is denied and that the claim is being vigorously defended. This time, the solicitors will be retained by the insurers for the Law Society (which provides malpractice insurance coverage). They will have a great deal of expertise in the field. So, the second lawyer will also have to retain a third lawyer as an expert witness, this time one who is a specialist in real estate. This case is not going to be simple!
You may indeed have an excellent case, but unless your case is the legal equivalent of being rear-ended in a car accident, you're fighting an uphill battle. And, you're financing all the costs in the meantime. Further, while all this litigation is going on, the title problem is still unresolved.
For example, if your house is too close to the lot line, you will still have to make application to the Committee of Adjustment for a minor variance. If your eavestrough overhangs your neighbour's property, then you will either have to remove it, or obtain an encroachment agreement from your neighbour. This may cost some money.
Ultimately, you will have to prove that your lawyer's conduct in your case, fell below the proper and acceptable level of service. What if these problems were mentioned by your lawyer, but no one thought that anything would really ever go wrong? The municipality and the neighbour just won't notice. In this case, you've probably accepted the risk. Or, perhaps the lawyer properly explained it, but failed to really talk you into solving the problem at the time. If that "explanation" was the same explanation that is customary, then you are out of luck. There is a problem, the lawyer met the appropriate standard of care, and unfortunately for you, the risk materialized.
Title Insurance
There is another entirely different approach to this same matter. It falls under the discipline of "risk management". Just buy insurance! Whatever the problem, just figure out how likely it is, and pay the appropriate premium. Insurance will take care of the rest.
The first issue is that it doesn't matter whether your lawyer was negligent or not. So, please feel free to call, and both you and your lawyer will sigh in relief when it is determined that you purchased "title insurance".
The next step is to report the claim. You can either do this directly or your lawyer will do so on your behalf. The insurer is looking to find a cost effective solution. If the setback was not sufficient, then they will retain your lawyer or another lawyer to proceed with an application for a minor variance. If it is an encroachment agreement that is required, they will negotiate with your neighbour, pay a sum necessary to secure your neighbour's consent and attend to the payment of your neighbour's legal fees. Another solution may simply be to replace the eavestrough.
You have to remember that your neighbour doesn't have to agree, and the Courts will not force him. But, the insurer will have to offer sufficient funds as an inducement to make it worth his while. Possibly, in some cases, where there is no real solution available, you will be entitled to the difference in value between your property with the problem and your property without it.
Unlike the reaction of your solicitor to an accusation of professional negligence, the title insurer really needs some claims to pay. If nothing ever went wrong, who would buy insurance? So, they really do want to establish a reasonable track record of claims payments so that everyone will say "you should always buy title insurance".
Most of the time, nothing goes wrong, but in that less than 1% when it does, you are much better off with the insurance.
What's Covered
Most title insurance policies cover:
1) title problems that could affect the marketability of the title, and 2) legal services provided by your lawyer in the transaction.
The policy is issued in the names of the purchasers and the mortgagees. They are all covered as their interests appear. The policy is issued for a one-time premium and affords protection not only to the original purchasers but also their heirs. New purchasers will have to obtain their own policy.
In addition, certain title related issues that are beyond the scope of the usual solicitor's title opinion are also included, for example fraud, forgery, survey errors and errors made by municipalities and utilities in providing information to lawyers. Further, it covers work orders, access rights and conflicting interests in property.
Another very important feature is that the policy continues in effect. It is not a one-time opinion. If something goes wrong afterwards, you are still covered. What if your neighbour erects a fence over your property line, two years after you buy the property? You don't have to look for your solicitor's opinion! Of course, there was nothing there, but, you're still covered under the title insurance policy. So, post closing events like fraud and new encroachments are covered. So too, are some construction liens. If you simply don't pay one of your contractors and the contractor registers a lien, then that will not be covered, but if you pay the general contractor and he fails to pay one of his sub-contractors, then that lien will be covered.
The specific "title issues" that are covered would include the following:
1) defects in title, 2) conflicting interests or ownership of the land, 3) mortgages or other encumbrances affecting title, 4) the un-marketability of title, 5) lack of compliance with restrictive covenants, 6) the existence of work orders, 7) major encroachments, 8) access-related problems, 9) absence of a legal right of access, 10) errors in rights of way or easements, and 11) defects due to tenancies.
There are, of course, other title related matters that are not mentioned. In all cases, you should see the particular wording in the relevant policy.
Aside from the "title issues", the matter of "legal services" is also covered. This would include errors, omissions or negligence by your lawyer in respect to the following:
1) the manner of taking title, 2) the implications of taking title in the name of a particular person, 3) financial implications of the purchase, 4) financial implications of the mortgage, 5) Land Transfer tax implications (both its application and calculation), 6) Income Tax implications, 7) advice regarding the Agreement of Purchase and Sale, 8) advice regarding chattels with liens, 9) errors and omissions in the statement of adjustments, and 10) advice with respect to risks and proposed remedies.
So, just about everything that a lawyer could do wrong is covered. In fact, if there is legal liability at law, then you are covered. You don't need to sue your own lawyer, you just present the claim to the insurer.
The insurer will, in the event of a claim:
1) pay all the costs necessary to rectify the problem, 2) compensate the purchaser by paying up to the full amount of the insurance policy, and 3) pay all of the associated legal costs of defending the matter in Court.
What Is Not Covered
It would be reasonable to assume that some things are not covered. The standard exclusions would mention environmental risks, the purchaser's right to change the use of the property, make certain renovations to the property, native land claims and the risks or problems that the purchaser agreed to assume in the agreement. These exclusions are reasonable.
In fact, for an additional premium the insurer might be persuaded to underwrite some of these additional risks. The point here, is that they will not be covered under the standard policy that it issued to everyone. That would be too expensive! So, delete those risks, and the particular purchasers who might face these specific issues will have to deal with them, either in the agreement, through a solicitor's opinion or through a rider to the title policy.
Land Titles Assurance Fund
This is a fund underwritten by the Province to guarantee the titles to certain properties registered in the Land Titles system. There is a very narrow definition of title. At this moment, most properties are still registered under the Registry system (where no insurance program is in effect), but eventually that will change.
The advantage of the title insurance policy is that it provides an immediate solution and deals with all the associated costs. If at some point in the future, you are reimbursed through the Land Titles Assurance fund, then you would have to remit these funds to your title insurer. They paid you first, and waited months perhaps years for payment.
Premium
Generally, the premiums have been relatively low for the various coverages that are provided. In truth, most of the time nothing goes wrong. Almost all conveyances go through without a problem. But, the ones that have a problem, usually have a very expensive problem.
The title insurers are professional title underwriters. They know how often things go wrong. Even if there is an identified risk, only rarely does that risk materialize. How often have you seen someone driving very carelessly, but they didn't hit anybody. This basic insurance principle allows the underwriters to ascribe a relatively low premium to the transaction. Also, the acquisition of a policy may eliminate the need to incur certain disbursements, including a new survey. These savings can easily exceed the policy premium.
Recommendation
Buy it, it's worth it! Even your lawyer will be happy. Now they know that you won't ever sue them.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
Within the last few years it has become increasingly common for realtors to place warnings within the terms of the agreement of purchase and sale.
Precedents for such clauses abound, and the following is an example:
"The Buyers acknowledge that they have been advised to seek outside professional advice such as lawyers, insurance agents or brokers, title insurance, mortgage consultants, and the Chief Building Inspector for the Regional Municipality of Peel prior to the signing of this offer on the subject property."
The hope and expectation is:
· The Courts will recognize that the realtor is doing his job
· The advice looks like good advice
· If the purchaser were smart, then they would take the realtor's advice
· The realtor has disclaimed responsibility
· The purchaser is now the only one to be blamed for their own actions
First of all, I don't like the warning clause. The agreement of purchase and sale is just no place for that type of discussion. It's not very professional.
If my agent started warning me about things and giving me notices in documents directed to other people, I would be offended, and I know both purchasers and vendors who have been offended by similar clauses.
There are no other similar documents that I have ever seen in legal practice.
Now, if you are a realtor and want to protect yourself, the best way is to write a letter or similar document explaining all the problems. It can be delivered to the client. It's private and confidential, which is specifically what this sort of advice should be.
You can prepare two copies and give both to the client. He keeps the first one. On the bottom of the second one, there is a provision included to the effect that the client acknowledges having received a copy. This one he gives back to you for your file. Or, send it by e-mail or fax and you have "proof" that it was, in fact, given to the client.
A final method, and more formal, particularly if you don't want the client to go ahead, is to have a separate document prepared which is an authorization.
This document will direct you to go ahead with the transaction, notwithstanding your advice to the contrary. That's the practice followed by lawyers, and I think it makes a lot of sense here.
Here is what the Acknowledgement might look like:
"Acknowledgement
To: John Smith, the purchaser
Re: 25 Elgin Street, Mississauga
Authorization and Direction
The purchaser hereby acknowledges having been advised to seek outside professional advice including solicitors, insurance agents or brokers, title insurers, mortgage consultants, and the Chief Building Inspector for the Regional Municipality of Peel prior to the signing of this offer on the subject property.
And more particularly, the purchaser:
· Authorizes and Directs the agent to prepare and submit this Offer without such advice
· Accepts all risks occasioned by reason of the failure to follow such advice
· Releases the agent from all liability arising by reason of such failure
· Indemnifies and agrees to save harmless the agent from any liability arising from such failure
Dated at the City of Mississauga this 20th day of November 2009.
Signatures etc."
As a word of caution, all documents appearing here are intended for review, consideration and discussion. They are not intended to be used in a specific transaction. Readers are requested to seek legal advice if they propose to use a document in practice. The author specifically disclaims all such responsibility, and readers use any such documents at their own risk.
You will of course see the difference. This is a private and confidential document between the agent and the principal (realtor and client). It is not there for all to see, particularly the other side in the proposed transaction.
Courts might be a little concerned about the first approach, and will not permit it to have its intended effect. The second approach is far more professional and is similar to what would be prepared in a law office in a similar situation.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters,
It's #8 on the list of the world's ugliest buildings as selected by the members and editors at VirtualTourist.com.
"Many of these buildings don't have the warmth of an ice cube while others don't even seem completed. Either way, they make for very interesting conversation," said general manager Giampiero Ambrosi.
This is what he said specifically about the ROM Crystal:
"Michael Lee-Chin Crystal, Royal Ontario Museum, Toronto. What I.M. Pei's pyramid is to the Louvre, so is the relatively new Michael Lee-Chin Crystal to the Royal Ontario Museum. While many praise the glass structure, just as many are troubled by the incongruity to the original, more traditional museum that still sits directly beside it."
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
The Province of Ontario has introduced legislation to combine the eight percent Provincial Sales Tax with the five percent federal Goods and Services Tax, creating a 13 percent Harmonized Sales Tax (HST).
It is proposed that the HST will come into force July 1, 2010.
Purchasers of real estate will face additional taxation, including:
· taxes upon certain services including moving costs, legal fees, home inspection fees, mortgage insurance premiums, title insurance, and real estate commissions (all of which were previously exempt under the PST; and,
· additional taxes upon the purchase price of newly constructed homes.
Application to Residential Properties
· HST will not apply on the purchase price of re-sale homes.
· HST would apply to newly constructed homes.
· a rebate is proposed so that new homes across all price ranges would receive a 75 per cent rebate of the provincial portion of the single sales tax on the first $400,000.
For an $800,000 new home, this would be an additional $40,000, and for a million dollar home, this would be and additional $56,000. That's a significant new tax.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
Here is the latest report from the Toronto Real Estate Board:
"In the first two weeks of November, Greater Toronto REALTORS® reported 3,666 sales - up 84 per cent compared to the first two weeks of November 2008. The average price for these transactions was up 10 per cent year-over year to $415,066.
Increased interest in ownership housing has been widespread throughout the GTA and across all housing types," said Toronto Real Estate Board President Tom Lebour.
However, it is important to point out that we are now making comparisons to the fall of 2008 when we experienced a marked decline in sales and average price"
Year-to-date sales, at 78,233 are up 11 per cent compared to 2008. Average price, at $393,180, is up by three per cent.
Sales and average price in the GTA this winter will be well above levels reported throughout the fourth quarter of 2008 and the first quarter of 2009, according to Jason Mercer, TREB's Senior Manager of Market Analysis."
Summary Of Mid November Sales Volumes and Average Prices
Note: November 2009 are shown with November 2008 in brackets
City of Toronto("416")
Sales: 1,560 (830)
Prices: $441,893 ($400,305)
Rest of GTA ("905")
Sales: 2,106 (1,161)
Prices: $395,195 ($358,130)
GTA
Sales: 3,666 (1,991)
Prices: $415,066 ($375,712)
That was the full TREB report. But remember, TREB compares statistics annually, while the actual factual information is available bi-monthly.
So, which way is the market going? Up or down?
For a correct answer to that question we have to look at the average price of a single family home in the GTA. As of 15 June 2009, five months ago, that number stood at $407,716. It then dropped until 15 October, increased to $423,559 at the end of October but dropped again in the first two weeks of November.
Let's have look at the average prices over the last few months:
$415,066......15 November $423,559......30 October $414,479.....15 October $406,877.....30 September $393,818.....15 September $385,978.....30 August $383,796.....15 August $395,414.....30 July $394,750.....15 July $403,972.....30 June $407,716.....15 June $395,609.....31 May $385,601.....30 April
The market in Toronto is starting to "cool off". This is a traditional occurrence every November.
What does this mean? Maybe nothing! Remember that TREB compares results annually, so that smoothes out the bumps over the long haul. The market is "up" from last year. If you are watching the market closely, the TREB report really does not describe what is happening in the market now, it makes a comparison to last year. There was a world financial crisis, bank failures, numerous bankruptcies and a stock market which had lost half of its value. So, if that's the comparative number, then this news is positive. But, it shouldn't be worth headlines today, however it is: "Home Sales Up 84% in First Half of Month" (Toronto Star 18 November 2009).
This is just pure and simple "sensationalism". All that really means is that there were 726 more deals in those two weeks this year than last. In the context of the year, November is a poor month. There are just less than 100,000 transactions annually, most taking place in months other than November.
It is also important to remember that average sale prices do not have the same meaning as the price of a stock traded on a public stock exchange. Each common share in a company is absolutely identical, so you can track the prices accurately over time. However when it comes to real estate transactions, we are simply talking about averages. No two properties are the same. Every property is different. So, the averages become more and more accurate with larger volumes. A yearly number might average out almost 100,000 properties, but a two week period may report only a few thousand. So, be careful in terms of over analyzing!
It is noteworthy that the overall sales volumes are now slightly ahead of last year. That means that deals are being done, and the demand is being satisfied. Going forward, there will be fewer buyers in the market. This, of course, means that there may be some excellent opportunities out there.
The annual highs are usually reached in May each year. Then there are cyclical declines in the summer months and a resurgence in the Fall. The October figures frequently match the Spring high. The market frequently tips over in November and this may simply be in motion again.
At the moment, there is upward pressure on prices since there is a limited supply of listings. You have to remember that a lot of prospective sellers heard that the market was "bad" so they changed their plans. Decreased supply have turned the situation into a sellers' market. But, that was old news! And, by old, I mean "October". Have another look at the prices. They are going down, not up.
Interest rates have never been more attractive. A full 1 per cent rise is about a 33%increase in the mortgage rates. That would have a significant impact on rising prices.
Longer term, real estate has always proven to be a good investment.
Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
The case of Cutts vs. Okipnik is another Disclosure case. The action was tried in the Court of Queen's Bench of Manitoba.
The purchasers claimed that the vendor fraudulently or negligentyly misrepresented the condition of the property at the time of sale.
The buyers testified that this was the first house they had ever purchased and that it was very important that there be no cracks or leaking in the foundation. They both said that they had rejected other houses that had these identifiable problems. Mrs Cutts testified that, after seeing a property condition statement that referred to leakage, they asked their real estate agent to make further inquiries and were satisfied with the answers provided.
Not surprisingly, their agent and Okipnik's agent had no independent recollection of inquiries being made. However, both Todd and Colleen insisted that the property condition statement be provided as part of the offer to purchase.
Disclosure Statement
Okipnik provided the Seller's Property Condition Statement as follows:
1. (H.) To your knowledge has there ever been any flooding or leakage affecting any portion of the property, during the period of your ownership of the property, (into the house or garage or into low-lying areas of the yards or other part of the property) and from any cause or source (rainwater, snow melt, sewer backup or other cause or source)?
The answer checked off was "yes, leakage was fixed via drainage ditch. Works well."
5. (A.) Are you aware of any cracking, shifting or movement of the structure, that is not readily visible?
The answer checked off was "no".
5. (C.) To your knowledge, during your ownership of the property, has there ever been any damage to the buildings due to wind, fire, water, moisture, insects or rodents?
Answer "no".
The Facts
The deal was closed and the buyers moved in early January, 2004 and as you might imagine immediately became aware of problems.
Numerous photos were filed that show rust and mildew in the northeast corner and rust on the east wall, mildew on the carpet and wall in the laundry room, water leakage with water coming in from multiple points along the north end east walls, water leakage with water coming out of the furnace room and in from the north wall, and leakage along the north wall in the furnace area. Clearly, there was a moisture problem.
Judge's Observations on Seller's Testimony
I found Okipnik lacking incredibility. A representative sampling follows:
1. Okipnik testified on direct that he was not even certain if the writing on the P.C.S. was his and that he did not recall filling it out. He tried to explain this as due to a heart attack and mini-stroke that he suffered shortly before the sale of the house. He was cross-examined about testimony given at his examination for discovery that he believed his agent had filled out the P.C.S. His final answer was that he just signed it to get it over with because he was too anxious for the sale and never bothered to read it.
2. He testified that contrary to what the P.C.S. contained he had in fact patched the northwest wall of the basement in the early 1980's to seal it and prevent leaks. This patch was completely covered by insulation and drywall at the time of sale. His only explanation was that he had not remembered that patch when he answered the P.C.S.
3. He denied at trial that there were any problems with water or moisture after the basement was furnished. However, at his examination for discovery he had testified that there was water on the floor in the laundry room on a few occasions when there was heavy rain or melting, and further that he had never found a source for that water. When asked to explain the answers from the examination he indicated that he did not recall those answers and was probably wrong then. He then added at trial that any water in the laundry room was from his washing machine. He had just remembered that the night before he testified and he further confirmed that his memory was better in 2006 than it was in 2004.
4. Okipnik testified that the state of the floor in the basement was very good, and then said it had had cracks earlier. He had torn the floor out and redone it in the early 1980's because of all the cracks. He was confronted by his testimony on discovery that the floor was redone around 1987, shortly before he installed the drywall. Okipnik replied that those dates were absolutely wrong.
5. Holes were observed in the floor in the southwest corner. Okipnik testified that he drilled those holes in the floors because he was using them to work with condensers. He denied that those holes were ever used to drain water from the laundry room one foot away, where there had been water in the past.
6. There is discoloration on many of the walls with patches of what looks like tar. Okipnik tried to suggest that he might have used tar to glue the insulation to the concrete walls.
7. Photos show water channeled through washed out concrete in the laundry room. Okipnik could not explain what that was, and purported not to recognize it.
8. Okipnik was absolutely inconsistent on his dates. He testified that the walls were finished the year after the floor was done. The markings on the drywall confirm that it was manufactured in 1988, so if his testimony is correct then the floor would have been done around 1987, which he absolutely denied. He then said that he was married in 1986 and the floor was finished before that time. He then said he realized that it had to be the summer before he was married or in 1985 at the latest. There was not the slightest consistency in any of his testimony on when work was done.
9. The P.C.S. suggested in answer to question 1.(H.) that leakage was fixed via the drainage ditch that he dug in his backyard. He denied at trial that there had ever been any leakage into the house. Again, at his examination for discovery he gave contrary testimony, as follows:
Q. 35 And what were the signs that you noticed that there was leakage?
A. There was water on the floor.
Q. 37 And where was the source of the water?
A. There was a crack in the foundation.
His response was that he did not recall those answers, but must have given them. He then tried to explain that away as a situation where he probably said water but meant water stains.
10. In his statement of defence at paragraph 8, Okipnik claimed that the walls ere drywalled in 1987. This could not be correct since the drywall was manufactured in 1988. He further claimed in his statement of defence that "at that time" a small crack in the north wall was filled. He testified that that was not correct and commented that he had no idea why he made that statement.
The Law
Is Okipnik liable to the Cuttses?
The leading case in Manitoba in this area is Alevizos v. Nirula [2003] MBCA No. 148.In that case the issue was whether the trial judge was correct in finding that there was a fraudulent misrepresentation when a false and misleading P.C.S. was provided to the purchasers.
In upholding the decision at trial, Scott, C.J.M. for a unanimous court stated: "It is clear that silence and half-truths can amount to a fraudulent misrepresentation." And further: "In addition to silence and half-truths that mislead or imply something other than the truth, active concealment of a defect that would otherwise be patent is treated as fraudulent."
Judgment
The trial Judge awarded Judgment based on the following damages
1.Repairs to foundation.....$15,860.45 2.Repairs to basement.......$23,500.00 GST + PST........................ $3,290.00 Total ................................ $42,650.45
In addition, interest was added to the Judgment.
Comment
As you probably noticed the Judge went on at length about the seller's lack of credibility:
The seller:
· Was forgetful
· Uncertain in his responses
· Failed to remember dates and times correctly
· Inconsistent in his story from the discovery to trial
· Completely failed to recall prior testimony given under oath
· Admitted his inconsistent testimony
· Blamed his poor memory on a heart attack
· Admitted that the Disclosure statement was in error
· Made up foolhardy explanations
· Refused to admit obvious facts
· Offered foolish explanations of prior testimony
· Unable to account for his prioer testimony
In this case, the trial Judge did not have much of a problem. The seller was not a credible witness at all.
It is noteworthy that the seller's agent was not called upon to assist with the explanations. It is also interesting that the agent did not counsel the seller either to tell the truth or not sign the Disclosure statement at all.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
You might think that the Province of Ontario would do its best to uphold the rights of its most vulnerable citizens, but it doesn't.
Through the Ontario Lottery and Gaming Corporation (OLG), the Province insists upon the completion of a skill testing question. Apparently, or so their thinking goes, this will change a game of chance to a game of skill. We all know that's just "silly".
But, generally we are prepared to go along with this "fiction" for the sake of placating the anachronistic thinking of a few.
However, not everyone is capable of answering the skill-testing question. I'm sure you know many people, who are otherwise eligible. They are citizens, taxpayers and adults. It's not just the mentally challenged.
However, they may be from other countries, they may not speak English well, they may not be able to undertake what may be described as simple math. Others for one reason or another have never attended school, have never learned mathematics and do not have the ability to communicate.
Are all these people to be denied their right to win?
Let's get with it, and drop this foolhardy notion that the simple math calculation saves everyone's morality. Extend the opportunity to all without discrimination!
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
Eccentric Mathematician: There's Method in His Madness
By Brian Madigan LL.B.
Grisha Perelman solved one of the most difficult mathematical problems in the world. There are only a limited few who understand the question itself, and only a handful who might have the "smarts" to figure it out.
He lives in apparent poverty having rejected a million dollar prize for his solution
It's hard to figure out his motivation, but, we have to remember that he's probably the smartest guy in the world. He's not crazy. He's the most logical thinker in the world.
The mother is a mathematician too. The $60/month pension that they both live on, can't really be the whole story. Obviously, they want to project an image of poverty.
It's not that he can't get a job. The math departments at most universities would all love to have him.
Also, the million dollars is not really gone. It just hasn't been picked up yet. So far, it's been there for several years without being claimed. But, he is the only one who can claim it. He solved it. Anyone else, would just have copied his solution.
So, in a way, it's an untaxed investment that can be picked up anytime he wants.
He's an advocate for "ethics".
He doesn't trust mathematicians. He says they steal ideas, solutions and copy each other's work without giving credit. He doesn't trust the scientific journals. From the time it is submitted, the work is at risk. And by the time it is published, you might find that others have suddenly "discovered" the same thing. And, you are #2, not #1.
Hence, his solution of the internet. It is public and it is date stamped! No one can steal his work. The million dollar prize is secure.
By not picking it up, he gets "mega-millions" in publicity. Otherwise, there's not much of a story.
As for the long fingernails, I suppose he doesn't need to use a calculator if he has an abacus in his head.
I think there's a method to his madness. He may have just out-thought the entire mathematics community. And, he might get that oceanfront property after all.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, Royal LePage Innovators Realty 905-796-8888 www.OntarioRealEstateSource.com
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