1
Q
q1. Swarna, a real estate licensee, held an open house one weekend at her vendor’s home. Another licensee, Janis, brought a purchaser to inspect the house. During their tour of the house, Swarna noticed a banana peel on the floor. Which one of the following statements is TRUE?
(1) Since persons attending the open house are adults, neither Swarna nor the vendor need concern themselves about this “unexpected danger”.
(2) If the purchaser slips on the peel, both Swarna and Janis could be liable under The Occupiers Liability Act.
(3) Swarna has a statutory duty under the Occupiers Liability Act to immediately remove the banana peel which is a potential danger to all visitors to the house.
(4) None of the above
A
- Answer: 3
It does not matter that the visitors are adults, as the Occupiers Liability Act places a duty on occupiers to ensure that all persons entering the premises of the occupier are reasonably safe. As the buyer=s agent, Janis does not fit the definition of Aoccupier@; therefore, no duty is placed upon her by the Occupiers Liability Act. In these circumstances, a reasonable person that is hosting an open house would have removed the banana peel from the floor once he or she noticed it.
2
Q
- Which of the following constitutes trespass?
A. Charles sells magazines from door to door. When he approaches the Jones’ house, he sees a “No Soliciting” sign on the gate but goes up to the door anyway.
B. In order to avoid a mud puddle, Julie leaves the sidewalk and makes a small circle onto Marilyn’s property.
C. When he was hiking in the park, Williams lost his bearings and wandered around for hours. Without realizing it, he wandered onto Graham’s land.
D. Joyce was asked by the owner to leave the local store, which she did as quickly as possible.
(1) All of the above
(2) A, B, and C only
(3) A and B only
(4) C only
A
- Answer: 2
Trespass requires an intentional or deliberate act of entering the land of another without express or implied permission. Generally the law implies permission of a land owner to the public to enter property along a sidewalk or frontwalk for reasonable purposes such as door to door soliciting, mail delivery, etc. Charles does NOT have permission because the Jones’ have expressly prohibited all “soliciting”; he is trespassing. Julie is trespassing even though the entry is slight and causes no damage. Trespass is actionable “per se”; no damage need be proved to succeed in a legal action. Julie’s entry is intentional. Similarly, William is a trespasser because his action is intentional in that he deliberately walked on Graham’s land C ignorance is no excuse. Joyce is not trespassing. When asked to leave the store, the law allows a reasonable time to do so.
3
Q
- Sandra attended an open house held by Adele, the listing representative, at a lovely Tudor Style home. Sandra loved the house but the price was at the very limit of her budget, so she wanted to be certain there would be no major repairs necessary to the house. She explained her concerns to Adele who immediately said, “Don’t worry, this house is as solid as the rock of Gibraltar, it is in A-1 mechanical shape!” Six months after Sandra bought the house, the foundation on one side collapsed involving $15,000 worth of repairs to make the house habitable. Which of the following statements is/are TRUE?
A. Adele cannot be liable to Sandra because Adele was the agent of the vendor and not the agent of the purchaser.
B. Adele’s comments to Sandra involved opinions and not statements of fact and therefore no liability for negligent misrepresentation can be imposed on Adele.
C. On the basis of the facts in this problem, Adele may very likely be liable to Sandra for negligent misrepresentation.
D. If Adele had told Sandra that she should not rely on Adele’s opinion because Adele did not have knowledge of the condition of the house, then Sandra could not hold Adele liable for negligent misrepresentation.
(1) A, B, and D only
(2) C and D only
(3) C only
(4) B and D only
A
- Answer: 2
Adele can be liable in tort to the purchaser because she has a duty not to misrepresent the condition of the house or property. This duty exists in tort law and as well as under the Rules pursuant to the Real Estate Services Act. Both Adele and the vendor may be liable to the purchaser: the vendor is vicariously liable for any wrongful actions of the agent, and the agent is personally liable for his or her own wrongdoings. If Adele’s comments may be regarded as “expert”, she is liable to the purchaser for inaccurate statements of opinion as well as of fact, unless she qualifies her statement with a disclaimer as in Option D.
4
Q
- Which of the following constitutes a trespass?
A. John enters the corner grocery store owned and operated by Fred. After John accidentally tips over a carton of fruit, Fred asks John to leave. John apologizes for his mistake and continues to shop.
B. Kevin parachutes out of a plane. Unfortunately, Kevin misses his target field and lands on the roof of Fred’s corner grocery store.
C. Cathy lives next door to Fred. On Cathy’s land is an old water tower that she has negligently let deteriorate into disrepair. Finally, the water tower collapses, falling directly onto Fred’s store and damaging the roof.
D. Steven, a baseball player, hits a ball so hard that it leaves the baseball stadium and lands harmlessly on the front steps of Fred’s store.
(1) B and D only
(2) A and C only
(3) A, B, and D only
(4) All of the above
A
- Answer: 3
Trespass consists of wrongfully entering, remaining on or causing an object to wrongfully enter another person’s property. As an intentional tort, it must be shown that the trespassing party voluntarily committed the act resulting in the trespass. Furthermore, trespass is actionable per se: no evidence of damages is required. Consequently, throwing something which lands on another party’s property or personally entering another party’s property C even without knowledge that the property is privately owned C is sufficient to result in trespass. However, indirect actions do not constitute a trespass. This would include allowing a water tower to fall into disrepair and collapse onto another person’s property
5
Q
- Eli was anxious to sell his house because he knew it was badly infested with termites. Sydney expressed an interest in buying the property after inspecting it but before making an offer, she asked Eli whether there were any problems she should know about. Eli, elated at the thought of getting the termite-infested home off his hands, assured Sydney that the structure was sound and free of any defects. Sydney subsequently bought the house and within one month discovered that the damage caused by the termites had seriously threatened its structural soundness, requiring thousands of dollars worth of repair work. Which of the following statements is TRUE?
(1) Sydney can sue Eli under both tort and contract law.
(2) Eli cannot be held liable for his misrepresentation because he is not a professional real estate licensee.
(3) As there was no special relationship between Eli and Sydney giving rise to a duty of care, Eli cannot be held liable.
(4) Sydney’s remedies are limited to those provided for under contract law.
A
- Answer: 1
As the injured party, Sydney may seek a remedy in both tort and contract law. In the case of deceit or fraudulent misrepresentation, a person does not need to be an expert to be liable. Since negligence is not an issue on these facts, the lack of a special relationship giving rise to a duty of care is irrelevant.
6
Q
- Interested in constructing a Piano Hall of Fame, Schroeder inspected a 10 acre piece of property which was listed for sale by the owner. After looking over the property, he sought the advice of his friend Lucy who was a real estate licensee. Lucy stated that the area would be an excellent location for a tourist attraction, but advised Schroeder not to rely on her opinion, as she was unsure about the development restrictions applicable in the area. Without checking any further into the matter, Schroeder promptly bought the property for the express purpose of the building the Hall of Fame; he subsequently learned that the land was located in an agricultural land freeze area and could not be developed for the purpose of a tourist attraction. Which of the following statements is TRUE?
(1) Lucy owed no duty of care to Schroeder because she was only giving advice as a friend.
(2) Lucy’s qualification of her statement effectively released her from any liability.
(3) Schroeder can reasonably sue Lucy for negligent misrepresentation because she had a duty, as a professional in the area, to take all reasonable care that the information she supplied to him was correct.
(4) Schroeder cannot sue Lucy for negligent misrepresentation because there was no contractual relationship between them.
A
- Answer: 2
Where a skilled person gives advice in the course of his or her business to a person who is reasonably going to rely on that advice, a special relationship giving rise to a duty of care will be created. Accordingly, the skilled person will be liable for any negligent misrepresentation unless the advice or opinion was given with a clear qualification that he or she accepted no responsibility for the accuracy or reliability of the advice. In this case, Lucy’s rendering of advice as a licensee gave rise to a duty of care towards Schroeder; however, since she clearly qualified that statement, he will not be able to sue her for negligent misrepresentation.
7
Q
- Licensees have been found to be negligent in which of the following situations?
A. A licensee does not verify information in the listing agreement
B. A licensee fails to conduct a title search of the listed property
C. A licensee fails to recommend to the purchaser that the purchaser insert a “subject to financing” clause in an offer to purchase
D. A licensee fails to disclose material facts to the vendor about the purchaser’s ability to buy the property
(1) A, C, and D only
(2) A, B, and C only
(3) B and D only
(4) All of the above
A
- Answer: 4
Licensees have been found negligent in all of the listed situations.
8
Q
- Emilia lives in a house which she has leased from Johan while he is on an exchange program in Finland. Recently, Anika, a boarder in the house, noticed that their neighbour, Sloppy Joe, had entered the property to repair a hole in the fence through which his dog had a habit of escaping. After the repairs were made, a pile of lumber, some tools, and a can of nails remained on the property leased by Emilia. While the presence of these objects has caused no damage to the property, Anika finds them unsightly and has asked for your opinion. Which of the following is/are correct?
A. Johan, as owner of the property, can bring an action in trespass against Joe for wrongfully entering the property and leaving the objects behind.
B. Emilia will most likely succeed in a trespass action against Sloppy Joe for the wrongful placing of the materials on the land she has leased.
C. Anika, as a boarder, has a right to bring an action in trespass against Joe.
D. Because Joe’s actions had a legitimate purpose, he is not liable in trespass.
(1) A, B, and C only
(2) A only
(3) B only
(4) D only
A
- Answer: 3
The right to sue in trespass usually belongs only to the person in actual possession of the land at the time the trespass occurs. Johan would only be able to sue if the trespass resulted in permanent damage to his reversionary interest. Anika cannot bring an action because she lacks the right of possession needed to maintain an action in trespass.
9
Q
- Indicate which of the following disciplinary actions might occur when a real estate licensee has breached a provision of the Real Estate Services Act or the Regulations or Rules, or has breached the Code of Ethics and Standards of Business Practices.
A. The licensee may be required to pay the costs of any hearing of the real estate board.
B. His or her licence may be cancelled by the Real Estate Council of BC.
C. The real estate board of which the licensee is a member may expel the licensee from the board.
D. The real estate board of which the licensee is a member may suspend his or her licence.
(1) All of the above
(2) A, B, and C only
(3) B and D only
(4) C and D only
A
- Answer: 2
A licensee may be disciplined by having his or her licence suspended/cancelled by the Real Estate Council of BC; the real estate boards do not have this power, but may impose a range of other penalties, including expelling the licensee from the board and requiring the licensee to pay the costs of any hearing.
10
Q
- A landlord owned acreage which she leased to a tenant to use as an explosives testing site. The landlord’s neighbour operated a turkey farm on the property adjacent to the acreage. As a result of the explosions taking place at the tenant’s site, every year for three years the neighbour’s turkeys became distraught and died. Which of the following statements are TRUE?
A. The tenant is responsible for the nuisance and will be liable to the neighbour for his losses.
B. The landlord is not liable for nuisance because she has no control over what the tenant does on the leased property.
C. The landlord is liable to the neighbour in nuisance because she leased the property to the tenant for a purpose which would necessarily cause a nuisance to the neighbour.
D. The landlord cannot be responsible for the nuisance created by the tenant because the landlord is not the occupier of the acreage.
(1) C and D only
(2) A and C only
(3) A and B only
(4) B and D only
A
- Answer: 2
A landlord who leases land to a tenant for a purpose which will necessarily cause a nuisance to neighbouring property owners is liable in nuisance, even though the tenant causes the nuisance. In this case, the landlord is also liable because she knew or ought to have known that the tenant=s testing site would cause a nuisance to the neighbour. Of course, the tenant is also liable for the nuisance that he created.
11
Q
- Which of the following statements regarding the Occupiers Liability Act is FALSE?
(1) Under the Occupiers Liability Act, the occupier must take such care as in all the circumstances is reasonable to see that visitors coming onto the property will be reasonably safe.
(2) The duty of care owed under the Occupiers Liability Act applies to the condition of, the activities occurring on, and the conduct of third parties on the premises.
(3) An occupier will not owe a duty of care under the Occupiers Liability Act to visitors who, with full knowledge of the risks, unequivocally waive their rights to the protection of the Act (unless the occupier intentionally harms or acts with reckless disregard towards the visitor or the visitor’s property).
(4) The Occupiers Liability Act provides injured parties with a statutory remedy against only the registered owner of the unsafe premises.
A
- Answer: 4
The Occupiers Liability Act applies to “occupiers” as defined in the Act, and these may or may not be the registered owners of the premises. In addition, the Occupiers Liability Act creates a duty of care, the breach of which may satisfy one of the three required elements of a negligence claim; however, the Act does not, per se, create a statutory remedy for a breach.
12
Q
- Carmela has an absolute hatred for visible electric service wires. She is only willing to live in a house that has underground service wiring. She goes to an open house being held by Beatrice and tells Beatrice that she likes the house very much, but is quite disturbed by the electrical wires, which are particularly visible from the family room and kitchen windows. Beatrice informs Carmela that the city encourages homeowners to move their wires underground as part of its beautification project by paying half the cost, and that the charges to Carmela would therefore be minimal. Carmela buys the house and is horrified when she learns from the city clerk that the entire cost of burying the wires must be borne by her and that the cost could exceed $5,000. Which of the following statements is TRUE?
(1) Carmela has no right to sue Beatrice because she was only giving her opinion and did not tell Carmela that she could rely on it.
(2) If Beatrice made her statement to Carmela knowing that it was false, then she would be liable for damages for deceit.
(3) For a “special relationship” giving rise to a duty of care to exist, it is necessary for there to be a contractual relationship between the parties.
(4) All of the above statements are true.
A
- Answer: 2
To prove the tort of negligent misrepresentation, a “special relationship” must be shown to have existed between the person giving advice and the person receiving advice. There is no need for a contract between the persons in order for such a special relationship to exist. A person relying on the opinion of an expert does not need express permission to do so.
13
Q
- Jane moved to a rural area home and installed a hot tub in the side yard. She filled the tub with water in anticipation of using it. Her property was, however, invaded by hundreds of bees apparently seeking water. As a result of these bees, Jane and her friends and family cannot safely use the hot tub or the side yard from April to September of each year. Silver Maple Apiaries, a licensed honey farm, is located in the area. Silver Maple places its bee hives on the property it leases from Gus who is Jane’s neighbour. Jane is now suing both Gus and Silver Maple. Which one of the following is TRUE?
(1) Because Silver Maple is licensed to raise and keep bees, it is not liable to Jane.
(2) Because Silver Maple leases the land from Gus, it is liable to Jane under the Occupiers Liability Act.
(3) Gus is liable to Jane in trespass.
(4) Silver Maple may be liable to Jane under the tort of private nuisance.
A
- Answer: 4
The licence is not a defence because the nuisance is not an unavoidable result of doing an act authorized by statute. The Occupiers Liability Act does not apply because Jane is not complaining of an injury that occurred on Gus’s land. This does not involve a direct act by Silver Maple, therefore there is no trespass. This would most likely be considered a private nuisance because it is an intermittent act occurring over a long time period and the interference with Jane’s use of her land is an indirect result of Silver Maple’s act of placing beehives next door to Jane’s hot tub.
14
Q
- Francesca built an Olympic-size swimming pool in her back garden. All the children in her neighbourhood began to come over and swim in the pool, often without asking permission and on occasions when Francesca was not at home. Francesca then built an 8 foot solid wood fence around the pool which she kept padlocked except when she was using the pool. One day while Francesca was at work Willard, a 9 year old boy, climbed over the fence and while diving off the side of the pool, slipped and hit his head on the edge of the pool, suffering a serious concussion. Which of the following statements is/are FALSE?
A. By building a tall fence and locking it Francesca probably fulfilled her duty to child-trespassers under the BC Occupiers Liability Act.
B. The law may require a higher standard of care when the occupier is aware that children may be entering the premises.
C. Francesca was negligent in not ensuring that it was impossible for an unauthorized person such as Willard to gain access to the pool.
D. If Francesca were not the owner of the property, but only a tenant, she could not be liable under the Occupiers Liability Act.
(1) A only
(2) A and D only
(3) C and D only
(4) A, B, and D only
A
- Answer: 3
Francesca has a statutory duty to take reasonable care in all of the circumstances to see that persons entering her property will be reasonably safe. Francesca has probably taken all the precautions that are reasonable in the circumstances. The Occupiers Liability Act does not require occupiers to ensure the safety of all entrants in all cases, and probably not in this case where a particularly determined child trespasser managed to climb the fence while she was not home. The Act defines “occupier” broadly and includes tenants in the definition. Children may be owed a higher or stricter standard of care by occupiers than other types of entrants.
15
Q
- Which of the following statements about occupiers liability is TRUE?
(1) The definition of an “occupier” in the Occupiers Liability Act includes people who may have temporary control over the premises.
(2) The Occupiers Liability Act preserves the common law where the standard of care is owed is based on the category of visitor.
(3) The Occupiers Liability Act specifies the different standards of care that are required in different circumstances.
(4) The Occupiers Liability Act relieves occupiers of other higher standards of care that may be imposed on the occupier by other statutes.
A
- Answer: 1
Under the Occupiers Liability Act, an occupier has a duty to take such care as in all the circumstances of the case is reasonable. Occupiers include people who may have temporary control over the premises and not just owners or tenants. The Act was enacted to address the common law issues with determining the standard of care based on the category of visitor. Section 3(4) of the Act states that the Act does not relieve occupiers of a higher standard of care if imposed under other statutes.
16
Q
- Jim recently lost his job and is finding it difficult to make the mortgage payments on his house. As a result, Jim decides to sell the home and hires the services of Carol, a real estate licensee. In an effort to make his Burnaby house more attractive, Jim immediately starts to repair the fence which surrounds his yard. Jim is not the most organized handyman and often leaves tools, boards and scrap material around the fence. One night Carol arrives with John and Sarah Middleton, a newly married couple looking for a reasonably priced home. After looking at the house, the Middleton’s indicate to Jim that they are very interested in Jim’s house and that they would like to return to discuss matters further in the morning when they can see what the house looks like in daylight. As John and Sarah leave the yard and walk down the sidewalk to their car, Sarah steps on a board full of nails and injures herself.
Which of the following is NOT necessary to establish Jim’s liability to Sarah in negligence?
(1) Jim did not take the care that a reasonable person would have taken in the circumstances.
(2) It is reasonably foreseeable that a person might step on the board full of nails and suffer injury.
(3) Sarah’s actions represented a reasonable use of the sidewalk.
(4) Jim owed Sarah a duty to take care.
A
- Answer: 3
In the tort of negligence the plaintiff must prove that the defendant owed the plaintiff a duty of care; that the defendant breached the standard of care; and that the damages suffered by the plaintiff as a result of the defendant’s breach were not too remote in law. It is not necessary to prove that the plaintiff’s actions represented a reasonable use of the location where the tort occurred.
17
Q
- Chuck owns a retail store. The floor of the store is checked 4 times a day and there are many spot cleanups during the course of the day. In fact, the majority of Chuck’s time is spent touring the store to ensure, among other things, that the floors are clear. However, 15 minutes after the last complete floor check, Manjit slips on a small hard-coated candy lying on the floor of the store. Manjit sues Chuck. Which of the following statements is TRUE?
(1) Because Chuck is aware of the danger created by objects lying on the floor, he is liable for Manjit’s injuries.
(2) By entering the store, Manjit has willingly accepted the risk that she might fall and therefore is not protected by the provisions of the Occupiers Liability Act.
(3) Chuck may be protected by the Occupiers Liability Act because his housekeeping provisions are reasonably intended to prevent this type of injury.
(4) All of the above
A
- Answer: 3
Option (1) is incorrect as Chuck will not be liable if he can show that his housekeeping precautions, implemented to keep the floor clear, amount to a reasonable precaution against this type of accident. Option (2) is incorrect because merely entering a store would not be sufficient to be deemed a willing acceptance of the risk of falling and injuring oneself.
18
Q
- In which of the following situations would Louisa be considered a licensee at common law?
A. Louisa, a door-to-door vacuum cleaner salesperson, is given ten minutes to demonstrate her product in Ken’s home, during which time a chandelier falls on her.
B. While driving over to Ken’s home, Louisa spills hot coffee down the front of her shirt and stops at a gas station washroom to clean herself up.
C. Louisa goes to Barbie’s salon for a haircut and is attacked by Barbie’s guard dog who has escaped from the back room.
D. Louisa, though not invited, drops in on her friend Ken and walks around to the rear entrance which is Ken’s usual entrance; unfortunately, Louisa slips on a skateboard which was left by the back stairs and breaks her arm.
(1) B and D only
(2) B only
(3) A and C only
(4) All of the above
A
- Answer: 1
A person who enters premises with the express or implied permission of the occupier for a purpose in which the occupier has no economic interest is a licensee. An invitee is a person who enters onto the premises for a purpose in which the occupier has an economic interest. This would include a customer in a hair salon and a salesperson invited into the occupier’s home.
19
Q
- Larry Licensee entered a listing agreement with Vera Vendor and subsequently obtained an offer for Vera’s property from Paulina Purchaser. Delighted to find a buyer so soon, Vera immediately accepted the offer. One week before the date of completion, Terry Takeover approached Larry with an offer to buy the property from Paulina at a higher price. Paulina accepted Terry’s offer and Larry, without informing Vera, arranged the resale once the original transaction closed. Vera has just found out about these dealings and is refusing to pay Larry his commission. Which of the following statements is / are TRUE?
A. Larry can successfully sue Vera for his commission because he satisfied his obligation under the listing agreement by selling the property.
B. Larry was obligated to inform Vera of Terry’s offer.
C. If Larry brings a court action against Vera, he will have the burden of proving that he fulfilled his duties under the listing agreement and under common law.
D. In no situation would Larry be able to receive two commissions from the consecutive sale of the same property without breaching the Real Estate Services Act.
(1) A only
(2) B only
(3) B and C only
(4) C and D only
A
- Answer: 3
Larry’s obligations to his vendor include the duty of utmost good faith to Vera; this fiduciary duty was breached when he failed to inform Vera of Terry’s offer and instead negotiated the resale of the property after completion. In a court action, the onus would be upon Larry to prove that the duty of utmost good faith was fulfilled. With full disclosure to, and agreement of, all parties, a licensee can properly receive two commissions from two consecutive sales of the same property.
20
Q
- Dermot owns a flower shop and his deliveries are made by his employee, Gus. While picking up fish and chips to take home for his evening meal, Gus fell asleep at the wheel of his van and injured Molly. Which of the following statements correctly describes Molly’s rights?
(1) Molly can sue Gus for nuisance.
(2) Molly can sue Dermot for Gus’ negligence under the principle of vicarious liability.
(3) Molly can sue only Gus in negligence because the accident occurred when Gus was doing something outside the ordinary scope of his employment.
(4) Dermot’s liability would change if Gus were an independent contractor.
A
- Answer: 3
This is not a nuisance action. The issue is whether Gus is Dermot’s employee and whether the act was done in the ordinary course of employment. Here, as Gus’s employer, Dermot is only responsible for Gus’s acts done as an employee. Therefore, only Gus can be sued in negligence if he causes damage as a result of an act done while he is off on a “frolic of his own”. If Gus were an independent contractor rather than an employee, Dermot’s liability would not change as he is not responsible for Gus’s acts on these facts.
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