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Monday, October 20, 2014

"Shared water does not necessarily make good neighbours" Part 2 - The Appeal

In September, 2013, I wrote about a case involving the post-purchase discovery of an underground waterline on a farm.  The purchaser of a 97-acre hobby farm did not know that the vendor, who retained a three-acre parcel next to the farm where he had built his retirement home, continued to receive water from a spring on the 97-acre farm through an underground line that also supplied other neighbours.  Rather than disclosing the existence of the line and his expectation that he would continue to receive the water supply, the vendor provided a statutory declaration on the date of closing stating that he was "not aware of any person or persons ... having any claim or interest in the said lands or any part thereof adverse to or inconsistent with [his] title and that [he was] positive that none such exists."

After the waterline was discovered, the matter ended up in court and the trial judge declared that there was no prescriptive easement for the line and that the vendor was not entitled to an injunction to prevent the new purchaser from taking steps to interfere with the quality or quantity of the water supply.  The judge also found that the waterline constituted a "latent defect" and that the vendor was liable for negligent misrepresentation.  He awarded the purchaser $25,500 in damages along with nearly $115,000 in costs.

The vendor appealed the decision of the trial judge on negligent misrepresentation and damages to the Court of Appeal.  The Court of Appeal agreed with the trial judge's finding that the vendor had a duty of care not to make false statements to the purchaser, which arose "specifically from respondent's foreseeable and reasonable reliance on the appellant's representations contained in the statutory declaration."  And, since the vendor himself was a person with an alleged continuing interest in the land being purchased by the purchaser, he "knew, or, at the very least, ought to have known, that his representation to the contrary, in a statutory declaration executed under oath, was false."

The appeal was dismissed with costs to the purchaser in the amount of $22,000.

Read the appeal decision at: Hanisch v. McKean.