When it comes to surveys, size matters

Bob Aaron in Legal

Christopher and Lindsay Taggart were dismayed to discover that the lot underneath their newly constructed home was 1,000 square feet smaller than it was represented to be.

The home is located in a new subdivision in Maple Ridge, B.C.

Behind their lot was a parcel of undeveloped land that was to become a later phase of the subdivision. The adjacent lot was at a lower elevation, and a retaining wall had been constructed across the full width of the rear of the Taggart lot.

The wall had been built before the Taggarts viewed the property. When they inspected the house and lot with the builder's sales agent, they were told that the retaining wall marked the back boundary of the lot they wanted to buy.

The size of the backyard was an important factor for the Taggarts. They needed a yard that was large enough to accommodate their household, which included "the world's largest dog" (a Mastiff), two active sons, and future plans to install a swimming pool.

During the purchase negotiations, the Taggarts were told that the lot size was about 6,000 square feet. Based on the agent's representations, the Taggarts were satisfied that the yard was big enough to meet their needs.

About a year after closing, the Taggarts discovered to their surprise that the location of the retaining wall did not actually mark the back boundary of their property but was erected well into the lot behind them. In fact, the actual size of their backyard was about 1,000 square feet smaller than the land enclosed by the wall.

The agreement of purchase and sale, which the parties originally signed, contained the actual, correct dimensions of the land as they were set out in the plan of the subdivision. At the time of closing, the builder provided the buyers with a survey plan which – had either party examined it carefully – would have disclosed that the back boundary of the lot was not in the same place as the retaining wall.

After closing, in preparation for building a new house behind the Taggart home, the builder fenced in the Taggart yard with the new fence extending out to the retaining wall, which was beyond the actual boundary of their property.

When the lot for the new house was being surveyed, the builder realized that the actual rear boundary line was 10 feet closer to the Taggart house on the east side and 21 feet closer on the west side.

Following the discovery, the builder reconstructed the fence and retaining wall on the true boundary line. Faced with a much smaller lot, the Taggarts sued for negligent misrepresentation.

A four-day trial took place last May before Justice Janet Sinclair Prowse in Vancouver.

She released her 39-page judgment in October, finding that the builder's agent had made specific representations to the buyers that the retaining wall marked the property boundary.

She also found that the Taggarts relied on those representations and would not have bought the house without them. In the end, the plaintiffs were awarded damages of $75,254 plus interest and costs.

This case can be usefully compared to the Meagher case I wrote about last week.

There, the size of the house was 500 square feet less than the advertised size. The purchasers were otherwise happy with the house. They sued to recover damages for the shortfall – and lost.

In the Taggart case the retaining wall was specifically represented to be the rear boundary of the lot. The shortage in the lot size was found to be critical to the purchase decision, and the builder was held responsible for the misrepresentation.

Two lessons emerge from the case of Taggart v. Epic Homes:

  • Whether you're buying a new or resale home, always insert the lot size in the offer.
  • Always examine the survey plan carefully. It's the most important document in every real estate transaction.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail bob@aaron.ca

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