The Ontario Court of Appeal dealt with the issue of the determination of an 11 foot deficiency on a 172 foot depth in Bouskill v. Campea, 1976.
Ms. Bouskill was the owner of a piece of property in Mississauga which she listed for sale with a real estate agent at the price of $74,900, described as:
Part Lots 8 and 9, Plan F.21, being 100 feet more or less by 172 feet more or less with a private side drive and being on the east side of Southdown Road on which is situate house No. 943 South down Road …
In fact, the property had a frontage on Southdown Rd. of 1OO ft. and a depth back from the street of 160 ft. 11 3/4 ins.
Emilio Campea, having seen a “For Sale” sign on the property, contacted the real estate agent and submitted an Offer of $72,500 payable as follows:
- $1,000 by way of deposit,
- $39,000 on closing, and
- a mortgage to be taken back by the vendor for $32,500.
On the day fixed for closing Campea discovered the error in the measurement of the property and refused to complete.
The issue before the trial Judge was very clear-cut:
Was the shortfall of 11′ 1/4″ in the depth of the property too substantial to be encompassed by the words “more or less” in the description in the agreement of purchase and sale?
- If it was, then the respondent was entitled to avoid the transaction and receive his deposit back.
- If it was not, then he was guilty of a breach of contract and must be held liable to the appellant in damages.
Mr. Justice Donnelly held that the deficiency in the quantum of the property was too substantial to be encompassed by the words “more or less”.
Campea did not at the time disclose to either the vendor or her real estate agent, tht he had offered to purchase the property with a view to attempting to having it rezoned and developed for high-rise apartments or townhouses.
An expert witness testified at the trial that the deficiency would be significant to a purchaser contemplating subdivision.
The trial Judge was also influenced by the fact that, due to the total absence of any stakes or markers, the boundaries of the property were not readily ascertainable upon inspection.
The Court of Appeal, commented:
if a purchaser communicates his motives in offering for the property, he may find the price has gone up!
Campea is not precluded from alleging the materiality of the deficiency having regard to his intent to subdivide even although he had kept that intent a secret….
The appeal was dismissed. The Purchaser was entitled to the return of his deposit with costs.
COMMENT
Eleven feet and one quarter of an inch on 172 feet is fairly substantial. This didn’t fit within the “more or less” latitude. This amounted to a 6.4% deficiency.
Interesting case, in fact, I was quite familiar with the case before it went on appeal, since I assisted Murray Page, the successful lawyer on the case with some of the appeal research and cases.
This case, in 1976, continues to remain as the leading case on the definition of “more or less” in real estate contracts in Ontario.
Brian Madigan LL.B., Broker