Eberwein v. Chislett

Eberwein v. Chislett

The agreement was an enforceable agreement for sale (vendor retained legal title but covenants were vendor obligations); the defendant failed to perform the subdivision obligation and could not validly cancel for the purchaser's interim defaults; plaintiff was entitled to specific performance as to the main house subject to closing adjustments (purchase price less deposits, credits for taxes/utilities/insurance and CIBC mortgage principal reduction proxy) and the defendant was ordered to complete the subdivision and facilitate clearing title.

Citation
2007 BCSC 896
Parties
Plaintiff/purchaser: Todd R. Eberwein; Respondent/purchaser: Erin A. Shearer (Eberwein); Defendant/petitioner/seller: Alan A. Chislett; Co‑seller/agent: Judith L. Voigt; Co‑seller: Dana Weeks Bourne
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
21 June 2007
Procedural Posture
Contract for Sale of Land; Petition for Cancellation; Foreclosure Proceedings / Judgment After Trial (reasons for Judgment)
Outcome
Specific performance granted to plaintiff as to main residence; defendant's petition to cancel dismissed; defendant's counterclaim dismissed; costs awarded to plaintiff
Legal Topics
Specific Performance, Agreement for Sale / Right to Purchase, Option to Purchase, Subdivision Obligations, Repudiation, Redemption Under Law and Equity Act S.16, Credits and Adjustments on Closing
Source Language
English
Property Law Contract Law Equity Real Estate Foreclosure Specific Performance Agreement for Sale / Right to Purchase Option to Purchase Subdivision Obligations +3 more

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Parties

Todd R. Eberwein

Plaintiff/purchaser

Erin A. Shearer (Eberwein)

Respondent/purchaser

Alan A. Chislett

Defendant/petitioner/seller

Judith L. Voigt

Co‑seller/agent

Dana Weeks Bourne

Co‑seller

Procedural Posture

Contract for Sale of Land; Petition for Cancellation; Foreclosure Proceedings / Judgment After Trial (reasons for Judgment)

Legal Issues

  1. 1 Whether the plaintiff is entitled to specific performance of the agreement for sale as to the main house
  2. 2 Whether the sellers validly cancelled the agreement for purchaser defaults
  3. 3 Whether purchaser was ready, willing and able to complete and whether vendor's failure to subdivide excuses tender

Ratio Decidendi

The agreement was an enforceable agreement for sale (vendor retained legal title but covenants were vendor obligations); the defendant failed to perform the subdivision obligation and could not validly cancel for the purchaser's interim defaults; plaintiff was entitled to specific performance as to the main house subject to closing adjustments (purchase price less deposits, credits for taxes/utilities/insurance and CIBC mortgage principal reduction proxy) and the defendant was ordered to complete the subdivision and facilitate clearing title.

Court Disposition

Specific performance granted to plaintiff as to main residence; defendant's petition to cancel dismissed; defendant's counterclaim dismissed; costs awarded to plaintiff

Orders

  • Specific performance ordered for the agreement for sale as to 225 - 14th Avenue South on the expanded lot described in the April 2003 agreement
  • Closing amount to be paid by plaintiff: $169,900 less deposits of $10,852