Bryan Baynham, QC, Partner
DIRECT: 604 895 2802
bbaynham@harpergrey.com
Wesley McMillan, Associate
DIRECT: 604 895 2843
wmcmillan@harpergrey.com
June 3, 2009
Court Ruling Re: Condo Pre-Sale Right of Rescission
Harper Grey LLP Lawyers:
Bryan Baynham, QC, Wesley McMillan
A decision of the BC Supreme Court released on June 1, 2009 has confirmed that purchasers who do not receive existing amendments to disclosure statements before entering into the contract of purchase and sale are entitled to rescind the contract.
In this case, a purchaser of a $3.5 million pre-sale condo received the original disclosure statement before entering into the contact - but not the amendments which were in existence at that time. The purchaser gave written notice that he was rescinding the contract, as was its right under the Act. This was refused by the developer; the purchaser sued the developer seeking a right of rescission and damages for misrepresentation.
On a summary application, the Court agreed that the purchaser had a right of rescission under the Act. The Court's ruling affirms that the Real Estate Marketing Development Act ("REDMA") is consumer protection legislation. Further, the ruling confirms that REDMA should be looked at as a whole and interpreted according to its plain language and in a purposive manner.
Madame Justice Lynn Smith, concluded:
"...as a result of s. 1 and s. 21(3) of the REDM Act, a purchaser who did not receive amendments with the disclosure statement at the time of purchase has a right to rescind the agreement.
CONCLUSION
[75] I find that the plaintiff did have a right of rescission pursuant to s. 21(3) of the REDM Act. The plaintiff will have judgment on that issue pursuant to Rule 18A.
[76] It is unnecessary to address the supplementary submissions made by counsel for the plaintiff with respect to the possible impact of s. 23 of the REDM Act.
[77] The plaintiff will have his costs of this application."
The Court's interpretation of REDMA is of assistance to purchasers who have not received disclosure statements or amendments to disclosure statements. You may have a right to rescind your contract today.
