In order to sue for breach of contract on a real estate purchase, I need to sue the vendor. The property was purchased through an estate sale. If the estate has been dissolved, can I sue the executor? If the estate has not been dissolved, would it be advisable to sue both the estate and the executor, or is the executor not liable for errors made?
North Vancouver, Canada
I don't understand the question.
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The estate only exists thru the executor...that is the only person or entity you can sue if you have a claim against a deceased person. An executor is personally liable for errors but only to the extent that the beneficiaries of the estate suffer, not a person in your position.
To clarify, I purchased a condo with 2 parking stalls, and the purchase contract states that the condo has 2 LCP stalls; 5 years later, I'm told I only have 1 stall, and that in 1991(!) a special resolution had been passed whereby one of my unit's stalls was transferred to another owner in the building. I did not own the condo at that point, but for some reason, the property mgmt. company and the strata had both been operating with the original parking lot plan (which shows that I have 2 stalls), rather than the updated/revised plan (which stated that I only had one stall). When the error was discovered, not only had I already been using the stall for 5 years, but it was something I paid for.
So far I'm including in my claim, the following: the selling realtor, the purchasing realtor, the notary public who didn't do a proper title search, the property management company who sent off the plan to the selling realtor, and my Strata for taking 5 years to tell me that I only own 1 parking stall -- and that's after I'd been using the 2nd one up until then.
This case has been going on for a few years now. In order to sue for Breach of Contract, it is important for me to sue the vendor, and in this case, since the vendor is deceased, I am suing the estate, but what are the odds that an estate that was started in 1999 will still exist? How can I find out? If the estate no longer exists, is it possible to sue the executor for negligence, or is an executor off the hook when it comes to either negligence or liability?
THe estate file is public record. You can check it in the probate office where the deceased lived. The estate is more than likely closed. The executor had no personal liability to you at all...only in his capacity as a representative of the estate of the deceased. The executor is indeed "off the hook" and with the estate closed your time to make a claim against it is long passed.
Thank you...just not sure where in Vancouver the probate office is, or what it is, for that matter. Apart from calling a lawyer for advice, I've done a fair bit of searching, but so far no luck. Are you located in Vancouver? Perhaps "probate office" is not a term used in BC? Otherwise I have no idea where to find the public record of the estate. Any suggestions?
Also, in order to sue someone for breach of contract, is it necessary that a written contract be filled out, or would it be enough that someone has been "contracted" to perform a certain duty which they subsequently failed to perform? What I'm trying to say is this: just because there's no written contract between the selling realtor and me, nor is there one between me and the notary public, per se, does that mean I cannot sue either of them for breach of contract? I believe we undertook some sort of "contract," and that such a "contract" required them to perform their duties with due care and/or to the extent that their words could be relied upon. Could the fact that they were negligent in their duties serve as a kind of breach of contract?
I wasn't aware until just now that you were from Canada. I will transfer you to a Canadian law expert. Sorry that I misunderstood.
You have a couple conflicting issues.
First, as Richard pointed out above, you have no real case against the Executor, unless the executor was fraudulent. As such there is no estate issue you have.
Your situation is a little more complex.
When you purchase a piece of real estate including condo's, the burden is on the purchaser to discover the by-laws, title issues etc.
I have a feeling you have over complicated the issue.
If you contracted with the Notary to do a title search as they are permitted to do in British Columbia, and they are negligent in the title search to your detriment, you need to sue them on the theory of negligence. NOT breach of contract.
They failed in their duty to perform their services in a negligent way with forseeable losses. If they claim that Strata provided them with misinformation then it is up to THEM to enjoin Strata not you.
However if you are the one who did the title search and asked Strata for the documents, and they provided you with the old ones, that you relied on for your purchase then you can sue them, again for NEGLIGENCE.
You need to understand where the legal relationships exists and at law what is called privity, in order to point blame at the right person.
This appears to be a negligence case against the title searcher, and not a contract case against the esxtate.
So, to clarify, does that mean I have NO case against the estate -- either in contract or in negligence?
In some ways, the situation was made more complicated by the original defendants (the selling realtor & the notary public) who insisted in a settlement conference that the Strata (who were using the old plan), the property management company (who faxed the old plan over to the selling realtor just before the contracts were signed), and the purchasing realtor (I guess they wanted him added because he was our representative at the time of the sale...).
At our SECOND settlement conference the big issue was that we could only sue the estate for contract, and everyone else involved was merely "negligent." This is why we have made application to bring the estate into the picture. The difference for us, then, would be in the payment of damages. The defense insists that moneys paid for negligence is based on the dollar value at the time the negligence took place, not at the time of its discovery, nor at the time of any hearing. For us, this is a difference of $4K (based on the defense's retroactive property evaluation) versus $18K (as determined by our 2007 property assessment, which we paid to have conducted).
Even though the defense lawyers were in favor of me adding the estate (and this was also suggested to me by a lawyer-colleague), it sounds like this may not get me anywhere. Oy.
Obviously the value of my property has been greatly affected by having just one parking stall. We had a
You do not have a case against the estate UNLESS the executor perpetrated the entire fraud. Which is unlikely. I am MOST certain that the P&S agreemetn says this is an estate sale, and they are waiving liability, and you promise to do your own due diligence. Any of their sales statements are for information only and you must verify them through your own means.
They wont be liable.
Negligence is from the point of discovery but includes all foreseeable losses. It is foreseeable that when you are allowed to use the lot for 5 years, and dont discovery the breach, that appreciation will occur.
I dont see a claim against the estate.
The estate is dissolved, and unless you can establish that they are at fault for misrepresentation you have no claim against them.
This is a negligence case not a contract case.
Thanks so much.
Now I'm a bit confused, but things are getting clearer.
Should I take the estate off of the claim? I haven't added them yet, but was permitted to do so after making an application to judge...the courts are awaiting the amendment to my claim.
Additionally, how are "foreseeable losses" calculated? The defense is intent on saying we are only entitled to what we were "out of pocket" and considering we got the condo at "a fair price" we are not really out of pocket at all.
As I mentioned, based on the changes in the market, the difference between the value in 1999 and 2008 is significant, but was this difference "foreseeable"? Is there a formula for calculating such a loss?
I dont even know what your claim against the "estate" is, nor do I know who you could serve on it, so I see the issue as moot.
What is your claim against the estate?
Foreseeable losses are losses for which the person who was negligent would have been able to anticipate you are out of pocket.
What is foreseeable is that
a) the title is corrupted and needs to be corrected, so the costs associated with that
b) you purchased something of a certain value, with the right to rely on that investment and growth. When what you purchased is something different you have the right to claim the intended growth.
This is not a car or a computer. This is an investment asset, and needs to be presented as such.
The best case liability is the loss of appreciation (reduced value) from a 1 stall vs 2 stall Strata Condo, your costs rectifying it, and your costs litigating it.
They are trying to say, "if we messed up (which we are not saying we did) you are only allowed to recover the price difference from what you bought a 2stall vs a 1 stall at the purchase time, MAYBE with interest".
You need to negate that by focusing on the investment, and hte purpose of this purchase. This is not a happy meal from McDonalds that they did not give you fries. This is a long term investment.
The judge decides if the damages you are claiming could be anticipated by the tortfeasor (the person(s) who dropped the ball for which you lost)
Very helpful. Thank-you.
The reason I was going to add the estate as a claimant was for "breach of contract", since the contract I signed with the executor could not ultimately be fulfilled. The details of the item I had purchased were not correct, and therefore the value of my investment was affected negatively. According to the advice I received, my P&S contract was with the estate/executor, and so it's with it/him that there has been a contract breach.
So, the claim would be against the estate, but via the executor, and the latter is who I would serve. I understood from my legal advice that this should have been done with my original claim, and so I applied to the courts to make this amendment. It all seemed so reasonable at the time, but based on what you are saying (ie, that I DON'T HAVE a case with the estate/executor), it looks like I'm in a bit of a bind, since the current defendants are awaiting the amended claim WITH the inclusion of the estate. How do I proceed at this point WITHOUT adding them?
I appreciate your comments about foreseeable loss...is there an expert I can talk to about how such loss would be calculated? I need to get my expert witnesses/statements in line over the next 2 weeks.
Thanks again for your comments.
You are correct that was what the agreement was for, however within that agreement it says you are obligated to do your own due diligence. That is part of mitigating a potential issue with a land sale contract, and if you fail to do that it is very ahrd for you to come back later.
You did that and the person who gave you the wrong information on the status (the inspector) is the one who actually "duped" you into purchasing. had they given the correct information you may have cancelled.
In addition if the estate sold as a QUIT CLAIM deed, then you would have no recourse against the estate at all.
This is not like buying a car. The rules with property are very very different.
You need to look over the P&S agreement to see what caveats are in it.
You can go ahead and serve the executor but it will get you nowhere. If you want to proceed without it, file a notice to the defence and the court saying that the estate is discharged and that this breach of contract is actually based on the Notary who did not provide proper title information as a result of professional negligence.
Your issue now is that the case was approached in the wrong way, and now you are trying to fix it.
The expert I referred to above is a LOCAL property expert who knows the area, and can attest in court what the value would be.
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Ontario Mediator/Arbitrator, and Legal Consultant. Law Graduate
Thanks for this. Very helpful indeed :)
Looks like I have my work cut out for me!