Candy Crowley is replacing John King on “State of the Union,” and he is taking over the time slot once held by Lou Dobbs.

By Brian Madigan LL.B.

The latin expression “corpus juris” simply means “body of law”. In fact, it’s the entire body of laws in a country or a jurisdiction.

Commonly, the expression is used in the United States, but used somewhat less frequently in other jurisdictions.

In the United States a prominent treatise or encyclopaedia of law is known as the “Corpus Juris Secundum”. The word “secundum” can be translated to mean “accordingly” or generally words to that effect.

Sometimes, it might be used in the reasons for Judgment by a Judge who wants to set rather wide parameters, by stating perhaps something to the effect that having reviewed the “corpus juris”, meaning of course that all of the laws were considered.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

It is always interesting to see whether the “experts” really know what they are talking about.

So, here’s a quick sampling of several experts, forecasting their expectations after looking closely into the crystal ball for 2010:

Economic Growth For Canada

Stewart Hall of HSBC Securities says the economy will grow by 2.4% in 2010.

Canadian Dollar

Camilla Sutton of Scotia Capital expects the Canadian dollar to be at par with the US dollar by mid year, and to go above that for the rest of the year.

Bonds

Eric Lascelles of TD Financial Group expects higher bond yields in 2010. He thinks the bank rate will not move until the end of the year.

Markets

Tom Caldwell of Caldwell Securities sees an “upside to the market”. The bank stocks should do well in 2010.

Interest Rates

Michael Gregory of BMO Capital Markets expects the bank rate (currently at 0.25%) to move a full percentage point in the last half of the year in 25 basis point increments.

Commodities

Patricia Mohr of Scotiabank expects prices to move upwards in 2010, particularly “premium grade hard coking coal” which is expected to increase by 32%. Oil prices are expected to reach $90.00/barrel US. Gold will hold onto its value.

COMMENT:

Well, are any of those predictions right? Who knows? We won’t know until this time next year. But, they are supposed to be the “experts”.

What about your crystal ball?

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

You might have thought that there were no particular laws about blogging. And, until recently, there probably weren’t. The Supreme Court of Canada in Grant v. Torstar (2009)outlined some of the laws that apply in the case of blogging.

In a recent case, the Supreme Court of Canada found it necessary to carefully consider the law of defamation in the light of new media which includes lightning fast communication and dissemination of information from website to website, blog to blog, travelling around the globe in an instant.

Torstar owns and publishes the Toronto Star, Canada’s largest newspaper. One of its writers, a longtime and experienced journalist, published an article making reference to a well-known individual, Mr. Peter Grant. He owns several businesses and employs over 10,000 people in northern Ontario. He wanted to acquire some land and have it designated as a private golf course. The journalist made mention of the fact that a comment had been made that “it was a done deal”. The allegation alluded to the fact that Mr. Grant was a close friend, and political supporter of Mr. Mike Harris, who was at the time, Premier of the Province of Ontario. The undercurrent was that there was some “backroom deal”.

This information turned out to be false, and Mr. Grant sued the newspaper for libel and defamation of character. The libel laws in Canada haven’t changed much, but the Supreme Court agreed that it was a time for review and an opportunity to restate the law from a modern perspective.

It was the Supreme Court of Canada which opened up the issues and expounded the laws concerning libel, slander, defamation in various types of media including both professional journalists in written publications and amateur bloggers posting views, opinions and commentary on the internet.

After considering the applicable law in Canada, and reviewing the law in other jurisdictions, the Supreme Court of Canada established a new defence to an action for defamation in the form of libel and slander, namely, the defence of “public interest responsible communication”.

The Court summarized the defence as follows:

“ Summary of the Required Elements

(h) any other relevant circumstances.”

This new law applies to all kinds of publishers, from the editors of major newspapers to the amateur blogger who posts a few opinions of the internet. Now, everyone is governed by the same rules.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

The latin expression “mutatis mutandis” is one of the most helpful latin legal terms. It means “with the necessary changes”.

In effect, it was the “search and replace” function for thousands of years. And, it still is.

Basically, it refers to a comparison between two documents. You might compare the first one to the second one, “with the necessary changes”. This expression presumes that all appropriate changes that might have been necessary were in fact made, without having to go through the formal process of actually making those changes.

Before the days of word processors and computer software, documents were either written or printed. If you wanted to change the name of party to the contract, you had to amend the name each time it appeared. And, if the gender changed, you had to amend the document in every location where there was a reference to gender. The term “mutatis mutandis” allowed you to give instructions to the reader simply to bear in mind that the new document is the same as the old document except for the name of the party, and except for the gender of the party. It is a guideline for reading the new document without the formal changes having been made. Courts have legally recognized this statement for centuries.

Is it still helpful today?

Let’s assume that you are a real estate agent and your client John Smith has just authorized you to prepare an Offer on a property. You diligently complete all the paperwork and now you have a 20 page set of documents. You need 6 copies, one for you, one for your client, and one for the client’s lawyer, as well as 3 copies for the seller’s side.

John decides before the Offer is submitted to put the Offer in through a company, ABC Company Ltd. He phones just before you leave the office. So, no problem, you go into the software program and make all the necessary changes. Use the “search and replace” function as much as you can. Then, print up another 120 pages and you are all set to go.

However, let’s assume that John Smith tells you about the problem just as you arrive in his office. Without access to your computer and 120 pages of paper, you decide to take a legal shortcut. There’s room on the first page to insert the following:

“This Offer is hereby amended to read ABC Company Ltd. instead of John Smith, mutatis mutandis”.

Now, you do have to amend all six copies, but that’s it and you’re finished.

The effect of this pargraph is to amend the Offer as follows:

1) delete every reference to John Smith,

2) insert ABC Company Ltd. in his place,

3) delete reference to “his” where such term refers to John Smith,

4) insert “its” as required, and

5) make all other necessary changes throughout the document to give full force and effect to the amendment.

This process is probably quicker than making all the changes in MS Word.Otherwise, the document would have become a complete mess and likely have been difficult to read.

Courts use this expression all the time, so they will know what you mean, even if you have to explain it to the seller’s agent.

Anything in the document can be changed in this way, not just the names of the parties.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

The latin expression “nunc pro tunc” is an important latin legal term. It literally means “now for then”. Actually, it is synonomous with official backdating.

It is quite clear that you can’t backdate documents. If something was to be signed on 15 April, then two weeks later it is quite improper to insert the prior date leading others to believe that the document was so signed on 15 April.

There is a specific provision in the Real Estate and Business Brokers Act to prevent backdating.

However, that doesn’t mean that backdating is not appropriate from time to time.

Let’s consider the case where a limitation period is missed. The plaintiff makes application to the court on 30 April and indicates that the 15 April deadline was missed. The court accepts the proposition, agrees that the plaintiff should be able to proceed and issues a court order “nunc pro tunc” as of 15 April, permitting the claim to be litigated. Everyone knows about the backdating. It’s not secret, surreptitious or fraudulent; it is quite clear, direct and in the open. The nunc pro tunc order enables official backdating to take place.

It is a corrective measure frequently used by the courts. Assume that a marriage is to be dissolved. The court issues a Decree Nisi, to be followed by a Decree Absolute in three months. The time passes, the applicant forgets to arrange for the Decree Absolute to be signed. The applicant then proceeds to remarry. This is a mess. In fact, the divorce was never finalized and the subsequent marriage was illegal.

However, no harm done. The court could cure this problem by issuing a court order “nunc pro tunc”, signed at the present time to become effective retroactively. The Decree Absolute is issued at the present time to become effective on the correct day, meaning the first marriage was dissolved and the second marriage was therefore legal.

It’s just a little ingenuity by the courts.

The concept is not limited to court orders. Contracting parties may agree that something is amended now, effective, as of an earlier date. In that regard, making the amendment “nunc pro tunc” is the cure.

Let’s consider the case of a real estate agent who needs to finalize some paperwork. Suppose a transaction is conditional on the home inspection to take place and the buyer has until Friday at 6:00 pm to waive the condition. The buyer’s agent, home inspector and the seller’s agent all attend for the inspection at 2:00 pm on Friday. The buyer’s agent brings the waiver. The buyer gets caught in traffic and misses the attendance. The buyer’s agent delivers the unsigned waiver and says “everthing is fine, I’ll fax you a signed copy”. At 4:00 pm everyone leaves. However, life gets busy, and the buyer’s agent doesn’t realize until Monday that he never got the waiver signed.

The consequences of failing to waive in the time period mean that the agreement is void. So, he drafts an amendment and notes in that document that the waiver is effective on Friday before 6:00 pm, nunc pro tunc. The seller agrees and signs. The transaction does not lose its momentum. It’s a clean and simple solution.

I have seen many complex methods attempted to patch up a agreement in such circumstances. Remember, if you simply delete the home inspection clause, then the buyer cannot sue on it later. Much better to leave it in, and waive it as of the correct time. An action would still lie against a seller who concealed a defect from a home inspector.

When you need to backdate something, just remember that the Romans did it first. It’s OK, as long as you’re not trying to trick someone.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

The latin expression “inter alia” means “among other things”.

The reference is often made when a short quotation or extract is made. The words “inter alia” are added so that the reader will know and appreciate that the quotation was not the full quotation in its entirety. There was more, so the reader is cautioned to look at the original quotation should further information be required.

Usually for the purposes of the reader, the short extract is sufficient. The term “inter alia” is the official caution.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

Translated from latin it means “utmost good faith” or “the most abundant faith”.

Used in a legal context it refers to a doctrine of disclosure in insurance contracts. In fact, it is the obligation to make full and proper disclosure on the part of the insured. The requirement is to meet a standard imposed by the law at the highest level.

So, as far as insurance contracts are concerned this is a “tell all” doctrine. Don’t keep anything back! Tell the whole truth, and nothing but the truth. Volunteer every little bit of information. Concealment on the part of the insured is tantamount to deceit and fraud.

If something which is known and is material is witheld from the insurer at the time of the application for insurance, the contract is void ab initio (from the outset).
If an insure declines to pay on an isurance policy, the best defence for the insured to to prove that full, complete and accurate disclosure was provided.

The principle in law goes back to the 1700’s and the case of Carter and Boehm (1766):

“Insurance is a contract of speculation… The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist… Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.”

The law hasn’t changed much in two and a half centuries. The doctrine of “uberrimae fides” or “utmost good faith” underlies the relationship between the insured and the insurer in modern insurance contracts.

The concept of “caveat emptor” or “let the buyer beware” has no application whatsover to insurance. Full disclosure is the key and “uberrimae fides” is the obligation standard.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

When listing a property, a seller’s agent will need to deal with the disclosure statement, in Ontario it is known as the Seller Property Information Statement or SPIS.

There are several decisions that need to be made at the outset. First, of course, is whether to use the document at all. The sales representative will have to explain the document and its use to the client.

As part of the explanation two options should be provided:

1) use the document as a seller property information statement under the terms of the Real Estate and Business Brokers Act, or

2) use the document as a checklist for the sales representative to conduct their own due diligence and verify information.

There is merit associated with both approaches. In the first case, the document is actually used for the purpose for which it was drafted. There is nothing wrong with that. It demonstrates good faith, and as long as the answers are truthful and complete there should be no repercussions in the future. False, devious and concealing answers are problematic. In some areas, it is the expectation that the seller will complete the document, in other situations the buyer may have requested the seller to complete the document in the initial Offer.

If the seller declines to execute the disclosure statement, there is still merit using the document as a checklist.

The listing sales representative is still under an obligation to determine the material facts and to verify facts. The registrants obligations exceed that of the seller. So, here, the approach would be to have the seller provide the information just to the sales representative. It will be used as a checklist. What better and more comprehensive a checklist could a registrant find?

The document should be completed solely in the handwriting of the registrant. In the area where the signature is to be affixed, the following words should be printed and noted:

“SELLER REFUSED TO SIGN”

This makes is quite clear that it is not a seller property information statement.

Also, it should be noted somewhere, perhaps at the top of the first page

“CHECKLIST ONLY”

This makes it quite clear that it is a checklist. These answers then become the notes of the registrant. If sued, the sales representative will have something in the file to fall back upon.

The document becomes valuable to the registrant for protection in the case of future lawsuits. It demonstrates that the agent attempted to verify facts, and determine the material facts.

All too often, sales representatives will simply deal with the first question and that is the execution of the document by the seller, without addressing the secondary checklist use.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

By Brian Madigan LL.B.

From time to time, a buyer’s representative will come across a Disclosure Statement signed by a Seller. In Ontario, it is known as a Seller Property Information Statement.

What advice should they give to their client?

The sales representative needs to have a relatively open and honest discussion concerning the disclosure document, the law, the contract and its limitations as well as the available remedies.

Here are some matters that a real estate sales representative acting on behalf of a buyer should point out to the client concerning the Seller Property Information Statement:

• the doctrine of caveat emptor continues to apply

• the disclosure statement and its disclaimers are designed to benefit the seller

• the disclosure statement is designed to limit the liability of the seller

• the seller need only disclose:

1) latent defects, that is those which are hidden from view, and
2) patent defects which have been concealed

• the disclosure statement as a contract document has limited use

• it may amount to a representation, but it should at least be a warranty

• the statement could be elevated to a condition

• the disclosure deals with sellers’ current knowledge (opinion) and not about true conditions (fact)

• defects unknown to the seller need not be disclosed

• responses that are vague, apparently incorrect, questionable, circuitous, too detailed, or not detailed enough should prompt some investigation

• inquiry by the buyer or appropriate experts in many instances is required

• inspection by the buyer or appropriate experts is required in most cases

• assistance from appropriate experts for further knowledge including engineers, surveyors, architects, lawyers etc. should be obtained, if advisable

• sales representatives are required to personally verify certain information

• sales representatives should recommend others (appropriate experts) to verify certain information

• the doctrine of merger will preclude most lawsuits based on contract

• lawsuits based on negligence or false representations can be costly

• actual detrimental reliance by the buyer is necessary for any lawsuit

• responsibility for losses may be apportioned

So, if you are a sales representative, don’t overly rely on the Disclosure Statement. It may be self-serving. Caution your client accordingly!

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com